Opinion issued October 31, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00764-CR
                           ———————————
                   RUSSELL AARON HESTER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 10th District Court
                          Galveston County, Texas
                      Trial Court Case No. 17-CR-2105


                                  OPINION

      A jury found appellant Russell Aaron Hester guilty of engaging in organized

criminal activity and assessed his punishment at ten years’ confinement.1 In two

issues, Hester asserts on appeal that: (1) the trial court erred in admitting, over


1
      See TEX. PENAL CODE § 71.02.
Hester’s objection, unauthenticated text messages between the undercover

detective and a third party; and (2) the evidence was insufficient to establish a

“combination” as required to support Hester’s conviction for engaging in

organized crime. Because we conclude that the trial court did not abuse its

discretion in ruling that the text messages had been properly authenticated and that

the evidence was sufficient to establish the elements of engaging in organized

crime, we affirm.

                                    Background

      After receiving multiple tips from neighbors regarding suspicious activity,

the League City Police Department began surveilling the house at 612 Brunswick

in League City, Texas. Lieutenant S. Antly testified that he supervised the

investigation into the Brunswick house, which he described as a “problem house.”

Lieutenant Antly testified that he had been “out there previously on another call”

that was “narcotics-related.” Detective T. Knowlton, who also participated in the

investigation, testified that the tip from the neighbors specifically referenced James

Lafrenz, a resident of the house, as “the most likely suspect” for dealing drugs.

      During surveillance operations, detectives observed people coming and

going from the house and made traffic stops when appropriate to conduct further

investigation. Detectives were not able to obtain video surveillance or photographs

because they did not want to draw the attention of the house’s occupants or


                                          2
visitors. Lieutenant Antly testified that the Brunswick house was on “the very back

street of [a] small subdivision” with only “one way in, one way out.” He testified

that officers with cameras would have been very noticeable, “[e]specially [at the

Brunswick] house, very obvious, because there was very little traffic on that street

besides that house.”

      On June 20, 2017, Detective R. Haunschild, acting undercover, made his

first purchase of a small amount of methamphetamine from Lafrenz at the

Brunswick house. Detective Knowlton and other personnel observed from a

distance and were available to assist if Detective Haunschild needed it.

      On June 27, 2017, Detective Haunschild returned to the Brunswick house

and made another small purchase of methamphetamine from Lafrenz. Detective

Haunshcild observed that Lafrenz retrieved the drugs from the master bedroom

closet, and Haunschild observed that the closet also contained “a scale,

methamphetamines and baggies” in addition to other miscellaneous items.

Following this sale, Haunschild was able to obtain Lafrenz’s phone number and

began communicating with him by phone.

      At this point, detectives were hoping to find out who was supplying Lafrenz

with the drugs that he was selling, so on June 29, 2017, Detective Haunschild and

Detective A. Strachan went to the Brunswick house again, this time to try to buy a

larger amount of methamphetamine, an eighth of an ounce, also referred to as an


                                         3
“eight-ball.” Detective Knowlton, who was conducting surveillance while the other

detectives acted as undercover drug buyers, testified that he had observed a Silver

Saturn in the Brunswick house’s driveway before the undercover detectives arrived

and that it was gone by the time Detectives Haunschild and Strachan arrived.

Detective Strachan likewise testified that the only car at the Brunswick house when

they arrived was a Mercury Montego registered to Montgomery.

       Detective Haunschild testified that, when he arrived at the house, Lafrenz

was there with Montgomery. This was the first time Haunschild had interacted

with Montgomery, but he testified that it appeared to him that Montgomery was

“aware of what was happening.” While Detective Strachan waited in the car,

Detective Haunschild asked Lafrenz if he could sell them an eight-ball. According

to Detective Haunschild, Lafrenz stated that he could not supply that amount, but

Lafrenz also stated that his “dealer had just left and he could call him back to the

house.” They agreed on a price of $130 for the sale. At that point, Haunschild got

Detective Strachan from the car and they waited in the house for Lafrenz’s dealer

to arrive.

       According to Detective Strachan, after Haunschild came to get her from the

car, they both went inside the house. She testified that, after entering the house, she

and Haunschild “talked in the kitchen with James Lafrenz and Steven

Montgomery, the two people that lived in the house. And Montgomery ended up


                                          4
going into a front bedroom while we still talked with Lafrenz.” Detective Strachan

testified that these conversations were “narcotics-related.” Detective Knowlton

likewise testified that Lafrenz and Montgomery were at the Brunswick house

during this deal.

      Detectives Strachan and Haunschild waited approximately ten minutes until

Lafrenz’s dealer—later identified as Hester—arrived. Strachan stated that Hester

“seemed very familiar to be able to just walk in and go straight to the master

bedroom.” Detective Haunschild likewise testified that, when Hester arrived, he

and Lafrenz “were conversing in the living room. And I heard a brief knock on the

door, and Mr. Lafrenz yelled, ‘Come in,’ as the person was entering the home.”

Haunschild testified that, based on his observations, Hester was “very

knowledgeable” about the layout of the house. Even though there were multiple

ways to get from the front door to where he and Lafrenz were conversing, Hester

“took the most opportune route through the kitchen area, met with Mr. Lafrenz

briefly and walked back into Mr. Lafrenz’s master bedroom without being

accompanied by the master of the home.” At some point, Lafrenz had a “brief”

conversation with Hester in which Lafrenz told Hester, “I told them $130,”

apparently in reference to the cost for purchasing an eight-ball of

methamphetamine.




                                        5
      According to Detective Strachan, Hester came out of the bedroom with “a

large piece of crystal meth and he commented on how much it was and then he

went back in the bedroom. We weren’t there to purchase that large amount.”

Detective Haunschild testified that Hester told them that the shard weighed 15

grams and that he intended to break off a smaller amount to sell to Haunschild and

Strachan. Hester then returned to the master bedroom.

      Detective Strachan testified that she gave $130 in cash to Detective

Haunschild, and Hester came out of the bedroom a second time “with a smaller

baggie with what appeared to be closer to the amount that we were going to buy.”

Haunschild confirmed the weight of the drugs in the baggie and then paid Hester

with the money he had gotten from Strachan.

      After completing the purchase, Detectives Haunschild and Strachan left

“almost immediately,” while Hester was still at the Brunswick house. Detective

Strachan observed a silver Saturn in the driveway. Using information that she

obtained from running the Saturn’s license plate information through police

databases, Detective Strachan learned that the silver Saturn belonged to Hester, and

she discovered several associated addresses, including one in Seabrook. Detective

Haunschild testified that the team wanted to set up another drug purchase directly

with Hester.




                                         6
      Detective Haunschild texted with Lafrenz to obtain contact information for

Hester. Haunschild then texted Hester to arrange a purchase for an even larger

amount of methamphetamine—either a quarter or a half of an ounce. Hester

indicated that he could get a “quarter” to sell to Haunschild and provided

Haunschild with his address so that the two could meet up to get the drugs.

      On July 7, 2017, Detective Haunschild picked Hester up from his home in

Seabrook. Haunschild observed the silver Saturn at Hester’s house. Haunschild and

Hester drove around and had a conversation about Hester’s ability to sell the

requested amount of drugs. According to Detective Haunschild, Hester “said that

he had different connects” and that “his girl plug [or supplier] could possibly fill

the order, but she had fallen off the map. . . . And then he started making additional

phone calls to try and fulfill that order that we agreed upon.”

      Hester also mentioned Montgomery during this conversation. While

Haunschild was in the car with him, Hester called “Steve” on the phone in an

attempt to find a supplier for the drugs, and Hester later confirmed that “Steve”

was the same man—Montgomery—who had been at the house during the June 29

drug deal. Detective Haunschild testified that he and Hester were unable to

complete the deal at that time, so they agreed to “continue our deal,” stating that

Hester would make more phone calls: “[H]e was really wanting to look elsewhere

to try to fulfill the order, and he wanted some more time to do that.”


                                          7
      They exchanged further text messages, including negotiating over the price

for the “quarter” of methamphetamine, with Detective Haunschild at one point

offering $150 for the drugs. Hester replied, “Lol. Get out of here. I’ll make 550 off

that before 12:00 o’clock tonight.” Haunschild testified that, in his experience, this

meant that Hester “was going to break it down so that he could make more money

off of it versus selling it to me raw.” The negotiations by text message then broke

down, and Hester and Haunschild were unable to reach a deal.

      Detective Haunschild testified that “shortly thereafter” he contacted

Montgomery. After overhearing part of the phone conversation between Hester and

Montgomery, Haunschild thought that Montgomery might be able to fill the order.

On July 11, 2017, Haunschild met with Montgomery at the Brunwick house and

asked him if he could get him a half ounce of methamphetamine. Montgomery told

Detective Haunschild that he could and told Haunschild to get back in touch with

him. Montgomery gave Haunschild his phone number. Detective Haunschild used

the phone number to text Montgomery, who told Haunschild he was “checking on

it.” Haunschild understood this to mean that Montgomery was trying to get the

requested half ounce of methamphetamine. They negotiated a little more but were

ultimately unable to complete the deal. Detective Haunschild testified that the deal

fell through because Montgomery wanted to be paid up front before procuring the

drugs for Haunschild, and Haunschild would not agree to that.


                                          8
      At this point, the investigation into the Brunswich house ended. Detectives

subsequently obtained a search warrant and arrested Hester, Lafrenz, and

Montgomery. The jury ultimately convicted Hester of engaging in organized

criminal activity with regard to selling narcotics.

                         Authentication of Text Messages

      In his first issue, Hester argues that the trial court erred in admitting, over

Hester’s objection, copies of the text messages between Detective Haunschild and

Montgomery because the messages were not properly authenticated.

A.    Standard of Review

      To properly authenticate a piece of evidence, “the proponent must produce

evidence sufficient to support a finding that the item is what the proponent claims

it is.” TEX. R. EVID. 901(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App.

2012). “Whether the proponent has crossed this threshold as required by Rule 901

is one of the preliminary questions of admissibility contemplated by Rule [of

Evidence] 104(a),” and “[t]he trial court should admit proffered evidence “upon, or

subject to the introduction of evidence sufficient to support a finding of

authenticity.” Tienda, 358 S.W.3d at 638. It is within the jury’s purview to

“determine whether an item of evidence is indeed what its proponent claims; the

trial court need only make the preliminary determination that the proponent of the

item has supplied facts sufficient to support a reasonable jury determination that


                                           9
the proffered evidence is authentic.” Butler v. State, 459 S.W.3d 595, 600 (Tex.

Crim. App. 2015); see Tienda, 358 S.W.3d at 638. We review a trial court’s

threshold determination of authenticity under an abuse of discretion standard.

Butler, 459 S.W.3d at 600; see De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex.

Crim. App. 2009) (stating that appellate courts review trial court’s evidentiary

rulings for abuse of discretion).

      “As with other types of evidence, text messages may be authenticated by

‘evidence sufficient to support a finding that the matter is what its proponent

claims.’” Butler, 459 S.W.3d at 600–01 (quoting TEX. R. EVID. 901(a)).

Authentication “can be accomplished in myriad ways,” including “through the

testimony of a witness with knowledge or through evidence showing distinctive

characteristics.” Id. at 601 (citing TEX. R. EVID. 901(b)(1), (4)).

      While “evidence that merely shows the association of a phone number with

a purported sender—alone—might be too tenuous,” the Court of Criminal Appeals

has held:

      A witness might also claim to have knowledge that a text message
      came from a phone number known to be associated with the purported
      sender. The association of a cell-phone number with a particular
      individual might suggest that the owner or user of that number may be
      the sender of a text message. Indeed, the suggestion may be quite
      strong. Unlike so-called “land lines,” commonly utilized by an entire
      household, cell phones tend to be personal and user-specific.

Id.


                                          10
      The Court of Criminal Appeals further recognized that, “[a]s with evidence

in general, authenticating evidence may be direct or circumstantial.” Id. at 602.

And it stated that when a sponsoring witness testifies to an association between a

cell-phone number and a purported author, “other evidence may be available that

might bridge the logical gap and permit a proper inference that the purported

author sent the message.” Id. at 601. This “other evidence” can include evidence of

“the message’s ‘appearance, contents, substance, internal patterns, or other

distinctive characteristics,’ which considered in conjunction with other

circumstances support a conclusion that a message indeed emanated from the

purported author.” Id. at 602 (quoting TEX. R. EVID. 901(b)(1)).

B.    Analysis

      At trial, when the State offered printed copies of text messages exchanged

between Detective Haunschild and Lafrenz, Hester, and Montgomery, Hester

objected on the basis that the messages were not properly authenticated.

      Before introducing the messages into evidence, Detective Haunschild

testified that he used a program designed “for police officers to spoof a number,”

explaining that the program “creates a number for you for whatever the area code

you want.” He further explained that he used the program to send messages and it

“records everything—everything that happens, audio recording as well as text

message recording.” He testified that he used this program to contact Lafrenz,


                                        11
Hester, and Montgomery from a city-owned cell phone, and the records of those

messages were printed through the police “LETS system.”

      Regarding the text messages between himself and Montgomery, Detective

Haunschild’s testimony provided context for the exchange as part of the larger

investigation. Detective Haunschild stated that, following his failed negotiation for

a bigger purchase from Hester, he returned to the Brunswick house to contact

Montgomery in person on July 11, 2017. Montgomery gave Haunschild his cell

phone number during this in-person meeting, and they later exchanged text

messages. The State sought to authenticate the text messages between Haunschild

and Montgomery, relying on Detective Haunschild’s identification of the messages

based on his memory of the exchange. Detective Haunschild testified that the

copies of the text messages between himself and Montgomery were obtained

through the LETS system, and he identified the phone numbers as being the cell

phone he used for undercover work and the one that Montgomery had given him in

person. He further testified that he knew it was Montgomery he was texting with

because “I told him I would get with him on my good number after speaking with

him in person,” referring to the content of the messages themselves as being

consistent with the in-person meeting he had had with Montgomery. The trial court

overruled Hester’s objection that the messages had not been properly authenticated

and admitted the text messages into evidence. The content of the messages


                                         12
indicated that Haunschild and Montgomery attempted to set up a drug deal but

were ultimately unsuccessful.

      Hester argues that the State failed to authenticate the text messages between

Detective Haunschild and Steve Montgomery when it produced evidence only of

an association between the phone number and Montgomery, and, thus, the trial

court erred in admitting the unauthenticated text messages. Hester cites the Court

of Criminal Appeals’ decision in Butler cautioning courts that mere evidence of an

association between a phone number and a person is not sufficient to authenticate

messages. He relies on the following passage from Butler: “Still, evidence that

merely shows the association of a phone number with a purported sender—alone—

might be too tenuous. We have advised caution in the event a trial court finds that

this is the only fact underlying a witness’s knowledge linking a text message to a

purported author.” Butler, 459 S.W.3d at 601 (emphasis in original).

      Here, however, there was more than a mere association between

Montgomery and the phone number in question. Not only did Detective

Haunschild identify the number as being the one he was given in person by

Montgomery, but he relied on his own memory of having engaged in the text

messaging with Montgomery. Haunschild testified that he knew he was texting

with Montgomery because the content of the messages themselves was consistent

with his previous in-person conversations with Montgomery. See Butler, 459


                                        13
S.W.3d at 601 (holding that authentication “can be accomplished in myriad ways,”

including “through the testimony of a witness with knowledge or through evidence

showing distinctive characteristics”). Detective Haunschild asked Montgomery in

person at the Brunswick house whether Montgomery could obtain the amount of

methamphetamine that he was hoping to buy, and the two men continued that

conversation by text message until it was clear that a deal could not be reached.

Detective Haunschild’s testimony establishes that the content of the messages

themselves, including the terms and language used, was consistent between their

in-person meeting and their subsequent text messages. See id. at 602 (identifying

“other evidence” that may “bridge the logical gap” as including evidence of “the

message’s ‘appearance, contents, substance, internal patterns, or other distinctive

characteristics,’ which considered in conjunction with other circumstances support

a conclusion that a message indeed emanated from the purported author”).

      The jury rationally could have chosen to believe Detective Haunschild’s

testimony regarding the text message exchange in determining that the messages

were what the State claimed they were—text messages exchanged between

Detective Haunschild and Montgomery in a failed negotiation for the sale of

methamphetamine.      See id. at 600–01 (holding that text messages may be

authenticated by evidence sufficient to support finding that matter is what its

proponent claims). Accordingly, the trial court’s decision to admit the text


                                        14
messages and leave the ultimate question of the weight and credibility of the

evidence to the jury was well within the zone of reasonable disagreement. See id.

at 600, 605 (holding that jury must “determine whether an item of evidence is

indeed what its proponent claims” and that “the trial court need only make the

preliminary determination that the proponent of the item has supplied facts

sufficient to support a reasonable jury determination that the proffered evidence is

authentic”).

      We overrule Hester’s first issue

                           Sufficiency of the Evidence

      In his second issue, Hester argues that the evidence was insufficient to

establish a “combination” as required to support his conviction for engaging in

organized crime.

A.    Standard of Review

      In conducting a legal sufficiency review, we view all the evidence in the

light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Whatley v. State, 445

S.W.3d 159, 166 (Tex. Crim. App. 2014). We defer to the factfinder to resolve

conflicts, weigh the evidence, and draw reasonable inferences. Whatley, 445

S.W.3d at 166 (“This ‘familiar standard gives full play to the responsibility of the


                                         15
trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and

to   draw   reasonable    inferences   from    basic   facts   to   ultimate   facts.’”

(quoting Jackson, 443 U.S. at 319)). We presume that the factfinder resolved any

conflicting inferences in favor of the verdict, and we defer to that

resolution. Id.; see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      “[D]irect evidence of the elements of the offense is not required.” Hooper v.

State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). Circumstantial evidence is as

probative as direct evidence, and juries are permitted to make reasonable

inferences from the evidence presented at trial and in establishing the defendant’s

guilt. Id. at 14–15. “Circumstantial evidence alone can be sufficient to establish

guilt.” Id. at 15. “Each fact need not point directly and independently to the guilt of

the appellant, as long as the cumulative force of all the incriminating circumstances

is sufficient to support the conviction.” Thomas v. State, 444 S.W.3d 4, 8 (Tex.

Crim. App. 2014); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).

      A person commits the offense of engaging in organized criminal activity “if,

with the intent to establish, maintain, or participate in a combination or in the

profits of a combination . . . the person commits or conspires to commit one of

more of the following [enumerated predicate offenses].” TEX. PENAL CODE

§ 71.02(a). Relevant here, section 71.02(a) recognizes the “unlawful manufacture,

delivery, dispensation, or distribution of a controlled substance or dangerous drug,


                                          16
or unlawful possession of a controlled substance or dangerous drug through

forgery, fraud, misrepresentation, or deception” as a predicate offense. Id.

§ 71.02(a)(5).

       “Engaging in organized criminal activity is a ‘circumstances of the conduct”

offense, the circumstances being the existence or creation of a combination that

collaborates in carrying out criminal activities.” O’Brien v. State, 544 S.W.3d 376,

384 (Tex. Crim. App. 2018). For purposes of engaging in organized criminal

activity:

       “Combination” means three or more persons who collaborate in
       carrying on criminal activities, although:

                (1) participants may not know each other’s identity;

                (2) membership in the combination may change from time to
                time; and

                (3) participants may stand in a wholesaler-retailer or other
                arm’s-length relationship in illicit distribution operations.

TEX. PENAL CODE § 71.01(a). “Conspires to commit” means that “a person agrees

with one or more persons that they or one or more of them engage in conduct that

would constitute the offense and that person and one or more of them perform an

overt act in pursuance of the agreement.” Id. § 71.01(b). Furthermore, “[a]n

agreement constituting conspiring to commit may be inferred from the acts of the

parties.” Id.



                                           17
      In considering the meaning of the phrase “collaborate in carrying on

criminal activities” as used in the statutory definition of “combination,” the Court

of Criminal Appeals held that “the State must prove more than that the appellant

committed or conspired to commit one of the enumerated offenses with two or

more people,” and that “something more” is “continuity.” Nguyen v. State, 1

S.W.3d 694, 697 (Tex. Crim. App. 1999); see O’Brien, 544 S.W.3d at 389–90

(noting that use of plural “activities” implies that combination at issue must do

more than one thing). “[I]n other words, [the State must prove] that the appellant

and two or more people agreed to ‘work together in a continuing course of criminal

activities.’” Nguyen, 1 S.W.3d at 697. However, the Court of Criminal Appeals has

“rejected the argument that the proof of an intent to engage in a continuing course

of criminal activities required a showing of a series of criminal acts.” O’Brien, 544

S.W.3d at 390. “To convict of engaging in organized criminal activity, it is enough

to show the collaboration to commit criminal activities including the commission

of one of many possible offenses; the focus is upon the collaboration, not upon

which offense is committed.” Id. Similarly, to prove an “intent to establish,

maintain, or participate in a combination or in the profits of a combination,” the

State must “show that the predicate offense was committed as part of a

collaboration of three or more people working together in a continuing course of

criminal activities.” Id. at 391.


                                         18
      For purposes of establishing delivery of a controlled substances, “deliver”

means “to transfer, actually or constructively, to another a controlled substance,

counterfeit substance, or drug paraphernalia, regardless of whether there is an

agency relationship.” TEX. HEALTH & SAFETY CODE § 481.002(8). The term

“includes offering to sell a controlled substance.” Id.

B.    Analysis

      Hester was charged with committing the offense of delivery of controlled

substance “with intent to establish, maintain or participate in a combination or in

the profits of a combination, said combination consisting of JAMES LAFRENZ

and STEVEN WAYNE MONTGOMERY.” Thus, the State had to prove beyond a

reasonable doubt that Hester delivered a controlled substance to Detective

Haunschild as part of a collaboration with Lafrenz and Montgomery working

together in a continuing course of criminal activities.

      The State presented evidence, through the testimony of Detective

Haunschild, testimony of other investigating officers, the text messages, and the

actual drugs purchased by detectives that Hester, Lafrenz, and Montgomery all

sold or offered to sell methamphetamine to Detective Haunschild. The evidence

indicated that Hester, Lafrenz, and Montgomery knew each other and worked

together to make the drug sales. When Lafrenz was unable to provide the amount

of drugs Haunschild sought to buy, he contacted his “dealer,” Hester. When Hester


                                          19
was attempting to find a source for the even larger amount of drugs Haunschild

requested, he contacted Montgomery. Montgomery himself at one point offered to

procure the drugs Haunschild had requested. This evidence was sufficient for the

jury to infer that Hester, acting with “the intent to establish, maintain, or participate

in a combination” with Lafrenz and Montgomery, committed the offense of

delivery of a controlled substance. See TEX. PENAL CODE § 71.02(a); TEX. HEALTH

& SAFETY CODE § 481.002(8).

      Hester acknowledges in his brief that the evidence of the various drug

transactions between Detective Haunschild, Lafrenz, and Hester “is sufficient to

allow an inference that Hester intended to engage in drug sales with Lafrenz,” but

he argues that there was no evidence that Hester and Montgomery intended to

engage in a continuing course of criminal activities. Hester argues that he “is not

alleged to have ever said anything to Steve Montgomery” and that Montgomery

never participated in the drug sale between Hester and Detective Haunschild

except to the extent that he was “simply existing in his own apartment during a

time when his roommate and Hester sold drugs to an undercover officer.” Hester

argues that “[n]o evidence exists, other than the fact of living together, that Steve

Montgomery was involved in any way with the ongoing criminal behavior [of]

James Lafrenz.”




                                           20
      The evidence indicates, however, more than Montgomery’s mere presence

during a single drug sale. Detective Haunschild testified that, during the sale on

June 29, Montgomery was present and seemed to be aware of what was happening

with the drug sale. Haunschild further testified that, on July 7, 2017, while he was

driving Hester around Seabrook, Hester called Montgomery in an attempt to fulfill

Haunschild’s request for a quarter of an ounce of methamphetamine. Haunschild

then contacted Montgomery in person and through text message, and during these

conversations, Montgomery offered to sell methamphetamine to Haunschild before

the deal ultimately fell apart. This is sufficient to establish that Hester, Lafrenz,

and Montgomery committed the predicate offense of delivery of a controlled

substance as part of a collaboration in a continuing course of criminal activity. See

TEX. HEALTH & SAFETY CODE § 481.002(8) (providing that term “deliver” includes

“offering to sell a controlled substance”); O’Brien, 544 S.W.3d at 391.

      Hester also asserts that “the evidence is only sufficient to prove that in this

criminal episode, Hester intended to work with Lafrenz to facilitate the delivery of

the controlled substance to [Detective] Haunschild.” Hester’s evaluation of the

“criminal episode” narrowly focuses on the June 29 drug sale, when Haunschild

purchased an “eight-ball” of methamphetamine from Hester at Lafrenz and

Montgomery’s home. This limited view of the criminal activity alleged in this case

is undermined by the evidence before the jury—the jury learned of multiple drug


                                         21
sales or attempts to sell drugs that involved Lafrenz, Hester, and Montgomery at

various times. There was also evidence that all three were aware of and worked

together to make the drug sales. When Hester arrived to sell Detective Haunschild

the “eight-ball,” Hester was very comfortable in Lafrenz and Montgomery’s house.

He entered before waiting for anyone to answer his knock and knew his way

around the home. Haunschild testified that Montgomery appeared to be aware of

what was happening during the drug sale. Detective Haunschild further testified

that, on July 7, while Hester was attempting to procure a quarter of an ounce of

methamphetamine for Haunschild, he spoke to Montgomery on the phone and

otherwise indicated that Montgomery was a potential source for obtaining the

drugs. Montgomery later offered to obtain the drugs Haunschild wanted to

purchase, but the deal was never completed because Montgomery wanted

Haunschild to provide the money before receiving the drugs and Haunschild would

not agree to that arrangement.

      Hester further argues that no other physical evidence, such as “ledgers or

notebooks with numbers or deals” or “marked money,” indicated that Hester was

working in combination with Lafrenz and Montgomery. Such evidence is not

required. Rather, the State must provide evidence of Hester’s “intent to establish,

maintain, or participate in a combination or in the profits of a combination” by

committing the offense of delivery of a controlled substance “as part of a


                                        22
collaboration of three or more people”—here, specifically with Lafrenz and

Montgomery—working together “in a continuing course of criminal activities.”

See TEX. PENAL CODE § 71.02(a); O’Brien, 544 S.W.3d at 391. The State could

prove these elements through circumstantial evidence, and the jury was permitted

to make reasonable inferences from the evidence presented at trial in establishing

Hester’s guilt.2 See Hooper, 214 S.W.3d at 14–15.

      Accordingly, we conclude that a rational jury could have determined beyond

a reasonable doubt that Hester engaged in organized criminal activity. See See TEX.

PENAL CODE § 71.02(a); Jackson, 443 U.S. at 319.

      We overrule Hester’s second issue.




2
      Hester also argues that the State’s insufficient evidence was “bolstered” by a
      misleading argument made by the State during closing statements. During closing
      arguments, the State mistakenly referred to text messages as having been
      exchanged between Hester and Montgomery, rather than between Detective
      Haunschild and Montgomery. Hester’s counsel, however, failed to object to this
      statement by the State, and, thus, any error with regard to this statement is waived.
      See TEX. R. APP. P. 33.1(a). And in light of the other evidence recounted above,
      including Detective Haunschild’s testimony clearly identifying the text messages
      as having been exchanged between himself and Montgomery, we conclude that
      this one statement during closing arguments does not undermine our conclusion
      that a rational jury could have found the essential elements of the offense beyond a
      reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
                                           23
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Richard Hightower
                                             Justice

Panel consists of Justices Kelly, Hightower, and Countiss.

Publish. TEX. R. APP. P. 47.2(b).




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