                                                                     ACCEPTED
                                                                 13-15-00110-CR
                                                 THIRTEENTH COURT OF APPEALS
                                                        CORPUS CHRISTI, TEXAS
                                                           7/17/2015 11:20:58 AM
                                                          CECILE FOY GSANGER
                                                                          CLERK

        NO. 13-15-00110-CR

   IN THE COURT OF APPEALS        FILED IN
                          13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
                       CORPUSOFCHRISTI/EDINBURG, TEXAS
            TEXAS         7/17/2015 11:20:58 AM
       AT CORPUS CHRISTI    CECILE FOY GSANGER
                                         Clerk

     JAMES CORTNEY DEAN,
                  Appellant,
              v.

      THE STATE OF TEXAS,
                    Appellee.

         On Appeal from the
         th
      24 Judicial District Court
      Of Victoria County, Texas
      Cause No. 14-03-27814-A

 BRIEF FOR THE STATE OF TEXAS

       STEPHEN B. TYLER
      Criminal District Attorney
       Victoria County, Texas

     BRENDAN WYATT GUY
  Assistant Criminal District Attorney
        Victoria County, Texas
      205 N. Bridge St. Ste. 301,
     Victoria, Texas 77901-6576
            bguy@vctx.org
            (361) 575-0468
         (361) 570-1041 (fax)
        State Bar No. 24034895

    Attorneys for the State of Texas

ORAL ARGUMENT NOT REQUESTED
                                             TABLE OF CONTENTS

                                                                                                PAGE (S)

TABLE OF CONTENTS .......................................................................... i

INDEX OF AUTHORITIES ............................................................... ii-iii

STATEMENT OF THE FACTS ........................................................ 1-11

SUMMARY OF ARGUMENT ......................................................... 12-13

ARGUMENT ...................................................................................... 13-35

      I. The trial court did not abuse its discretion in allowing
         the admission of evidence that Appellant had swallowed
         narcotics right before being confronted by the police.......... 13-33

    II. In the alternative, any error from the admission of the
        evidence of Appellant swallowing narcotics immediately
        prior to being contacted by the police was harmless ............ 33-35

PRAYER .................................................................................................. 36

SIGNATURE ........................................................................................... 36

CERTIFICATE OF COMPLIANCE ................................................... 37

CERTIFICATE OF SERVICE ............................................................. 38




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                       i
                                             INDEX OF AUTHORITIES

                                                  Texas Cases

Casey v. State, 215 S.W. 3d 870 (Tex. Crim. App. 2007) ............... 25, 33

Cude v. State, 716 S.W. 2d 46 (Tex. Crim. App. 1986) .................. 15, 26

Davis v. State, 979 S.W. 2d 863
(Tex. App.-Beaumont 1998, no pet) ...................................................... 23

Ethridge v. State, 795 S.W. 2d 281
(Tex. App.-Houston [14th Dist.] 1990),
pet. dism'd, 812 S.W. 2d 600 (Tex. Crim. App. 1990) (en banc) ......... 19

Evans v. State, 202 S.W. 3d 158 (Tex. Crim. App. 2006) ..................... 15

Feldman v. State, 71 S.W. 3d 738 (Tex. Crim. App. 2002) .................. 25

Gigliobanco v. State, 210 S.W. 3d 637 (Tex. Crim. App. 2006) ...... 25-26

Gonzalez v. State, 2014 WL 4049800, 13-13-00427-CR
(Tex. App.-Corpus Christi 2014, pet. ref’d) ......................................... 34

Hooper v. State, 214 S.W. 3d 9 (Tex. Crim. App. 2007)....................... 18

Johnson v. State, 68 S.W. 3d 644 (Tex. Crim. App. 2002) ................... 29

Ketchum v. State, 199 S.W. 3d 581
(Tex. App.-Corpus Christi 2006, pet. ref’d) ......................................... 33

Hyde v. State, 846 S.W. 2d 503 (Tex. Crim. App. 1993) ...................... 19

Marles v. State, 919 S.W. 2d 669
(Tex. App.-San Antonio 1996, pet. ref’d) ............................................. 23

Montgomery v. State, 810 S.W. 2d 372 (Tex. Crim. App. 1990) .... 14, 23

Morales v. State, 32 S.W. 3d 862 (Tex. Crim. App. 2000).................... 14
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                      ii
Mozon v. State, 991 S.W. 2d 841 (Tex. Crim. App. 2004) ................... 25

Rogers v. State, 853 S.W. 2d 29 (Tex. Crim. App. 1993)................ 14, 18

Rogers v. State, 2006 WL 240229, 2-04-529-CR
(Tex. App.-Ft. Worth, no pet)
(mem. op. not designated for publication) ............................................ 32

Sanchez v. State, 2015 WL 2353382, 13-12-00603-CR
(Tex. App.-Corpus Christi 2015, pet. filed)
(mem. op. not designed for publication) ............................................... 19

Smith v. State, 211 S.W. 3d 476
(Tex. App.-Amarillo 2006, no pet)......................................................... 23

State v. Mechler, 153 S.W. 3d 435 (Tex. Crim. App. 2005) ................. 31

Yohey v. State, 801 S.W. 2d 232
(Tex. App.-San Antonio 1990, pet. ref’d) ............................................. 23


                                             Texas Rules

TEX. R. APP. P. 9.4 ................................................................................ 37

TEX. R. APP. P. 44.2 .............................................................................. 33

TEX. R. EVID. 403 ........................................................................... 25, 32




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                    iii
                                                 NO. 13-15-00110-CR

                                  IN THE COURT OF APPEALS
                             FOR THE THIRTEEN DISTRICT OF TEXAS
                                      AT CORPUS CHRISTI

JAMES CORTNEY DEAN……..………………..………………..Appelant

v.

THE STATE OF TEXAS,…..……………………………………...Appellee

                                                     * * * * *

                                     STATE’S BRIEF ON THE MERITS

                                                     * * * * *

TO THE HONORABLE COURT OF APPEALS:

            COMES NOW, THE STATE OF TEXAS, by and through her Criminal

District Attorney, Stephen B. Tyler, and as Appellee in the above numbered

and entitled cause, and files this the Appellee’s brief showing:

                                             STATEMENT OF THE FACTS

            Appellant was indicted on March 7, 2014 for one count of

Manufacture or Delivery of Substance in Penalty Group 1 in an amount of

four grams or more but less than 200 grams. [CR-I-5]. The offense was

enhanced to habitual offender status due to the Appellant having two prior

non-State jail felony convictions. [CR-I-5]. Appellant’s case was called to

trial on March 2, 2015. [RR-II-1].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                         1
            In Appellant’s opening argument his defense counsel mentioned that

Appellant’s passenger on the night of his arrest, Brittany Williams, had also

been charged with possession of the cocaine. [RR-II-148]. Appellant’s

counsel then suggested that Ms. Williams had a deal for testifying for the

State in this case and mentioned that she was on parole for delivery of

cocaine. [RR-II-148]. Appellant’s counsel then asked the jury after they

viewed the video of the arrests in this case to consider the difference in

Appellant’s reaction to being arrested compared to Ms. Williams, and

asserted that it was Ms. Williams who was acting in a guilty manner. [RR-

II-148-149]. Appellant’s counsel then argued that it was Ms. Williams who

was in possession of the cocaine at issue in this case and argued that she was

the person who asked the Appellant to consume a portion of the cocaine.

[RR-II-149]. Appellant’s counsel then conceded that Appellant did in fact

consume some of the cocaine.                 [RR-II-149].    Appellant’s counsel then

criticized how the police had investigated the scene and argued that if the

police had properly finger printed the evidence they would have found Ms.

Williams’ finger prints on the contraband.                  [RR-II-149].   Appellant’s

counsel then promised that the evidence would show that Ms. William was

in fact closer to the drugs than Appellant was. [RR-II-150].



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                               2
            The State’s first witness was Deputy Stephen Lang of the Jackson

County Sheriff’s Department, who had been an officer of the Victoria Police

Department at the time of this case. [RR-II-151-152]. Deputy Lang then

testified to initiating a traffic stop on Appellant’s vehicle on January 18,

2014 and having Appellant not immediately pull over but rather continue

driving for another three or four blocks. [RR-II-153-155]. Deputy Lang

went on to describe searching Appellant’s vehicle and finding a green baggie

within the DVD-radio player in Appellant’s vehicle. [RR-II-161]. Deputy

Lang further established that upon further inspection he believed the green

baggie contained a quantity of crack cocaine. [RR-II-166]. Deputy Lang

then described removing the face plate of the DVD player and finding

several additional baggies that he also determined contained crack cocaine.

[RR-II-166-167]. Deputy Lang also described locating a black digital scale.

[RR-II-167-168].                         Deputy Lang then described questioning both the

Appellant and Ms. Williams and stated that both denied knowledge of the

cocaine. [RR-II-175]. Deputy Lang then described the search of Appellant

at the Victoria County jail, where an empty, tiny Ziploc baggie with a

Batman emblem upon it was found on the Appellant as well as $404 in

United States currency and explained how these items were consistent with

drug trafficking. [RR-II-178-179]. Deputy Lang then testified that the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                       3
digital scale was located in a central console within the vehicle and that said

console was closed when he first entered the vehicle. [RR-III-6-7].

            On cross-examination, Appellant questioned Deputy Lang about the

possibility of having drug detection dogs sniff the money that was seized

from Appellant. [RR-III-16-20]. Appellant then questioned Deputy Lang

about the initial traffic stop and got Deputy Lang to establish that Appellant

pulled his vehicle over under a light. [RR-III-26-27]. Appellant also had

Deputy Lang testify that it would be reasonable for a person who was pulled

over by the police to pull over under a street light.              [RR-III-26-27].

Appellant then questioned Deputy Lang regarding the console where the

digital scale was located and had Deputy Lang testify that the console was

within equal reach of Ms. Williams as it was of the Appellant. [RR-III-33-

34].          Appellant then had Deputy Lang testify that the green baggie

containing crack cocaine was located on the passenger’s side of the DVD

player. [RR-III-39]. Appellant also asked Deputy Lang who had greater

access to the baggie between the Appellant and Ms. Williams to which

Deputy Lang indicated both parties had equal access.                  [RR-III-39].

Appellant then questioned Deputy Lang on if the green baggie was visible

from the driver’s side of the vehicle.           [RR-III-39-40].   Appellant then

questioned Deputy Lang about whether it was the Appellant or Ms. Williams
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             4
who reacted worse to being arrested, and Deputy Lang indicated it was Ms.

Williams. [RR-III-41]. Appellant then questioned Deputy Lang about his

knowledge that Ms. Williams was on parole. [RR-III-41-42]. Appellant

then again questioned Deputy Lang about if Ms. Williams was within arm’s

reach of the cocaine, to which Deputy Lang agreed that she was. [RR-III-

44-46]. Appellant then questioned Deputy Lang about his handling of the

seized contraband and digital scale and questioned whether Deputy Lang’s

picking up those items could have destroyed the fingerprints of whoever

possessed those items, to which Deputy Lang conceded that it was possible.

[RR-III-46-49]. Appellant also had Deputy Lang establish that nothing was

found inside of the “Batman baggie”. [RR-III-50].

            On re-cross, Appellant asked Deputy Lang how long it would have

taken for Ms. Williams to lift up the cover to the DVD player and insert the

green baggie inside, to which Deputy Lang established it “wouldn’t take a

long time at all” and agreed it could be done in a couple of seconds. [RR-

III-60]. Appellant also again had Deputy Lang testify that the green baggie

was located at a point that was closer to Ms. Williams than to the Appellant.

[RR-III-61].

            The State next called Ms. Gennie Moya. [RR-III-64]. Ms. Moya

established she was a friend of Brittany Williams. [RR-III-64]. Ms. Moya
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             5
then testified to getting a ride with the Appellant on January 18, 2014 and to

seeing the Appellant “mess with his radio a little bit.” [RR-III-65, 67]. Ms.

Moya subsequently described seeing Appellant fighting with his radio and

stated she also thought she saw a “little bit of plastic” inside the radio. [RR-

III-68]. Ms. Moya then confirmed she observed Appellant struggling with

the radio twice during that drive. [RR-III-69]. Ms. Moya then admitted she

had a prior theft by check conviction. [RR-III-70].

            On cross-examination, Ms. Moya characterized herself as one of

Brittany Williams’ best friends. [RR-III-72]. Appellant then questioned Ms.

Moya about Ms. Williams being on parole. [RR-III-73].

            The State then called Ms. Brittany Williams.           [RR-III-86].   Ms.

Williams testified to seeing Appellant pull something from his sock and

ingest it. [RR-III-90]. Ms. Williams was not able to identify what that

object was. [RR-III-90]. Ms. Williams also acknowledged she did not tell

the police at the arrest scene about seeing Appellant swallow something.

[RR-III-94].                  Ms. Williams then testified that she was on parole for

Manufacuture or Delivery and also had a prior felony conviction for Failure

to Appear. [RR-III-95]. Ms. Williams then explained that she only told the

police about Appellant swallowing the unknown substance after the police

told her the Appellant was being taken to the hospital. [RR-III-96]. Ms.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                 6
Williams then denied possessing cocaine on January 18, 2014, denied being

aware that there was cocaine in the vehicle in which herself and the

Appellant was driving on that date, and denied telling Appellant to swallow

some of the drugs. [RR-III-98-99].

            Appellant’s cross-examination of Ms. William began with questioning

her about her prior felony drug conviction. [RR-III-99-101]. Appellant then

questioned her about the circumstances of her prior Fail to Appear

conviction.                   [RR-III-101-102].   Appellant than had Ms. Williams

acknowledge that from where she was sitting in Appellant’s vehicle she was

within easy reach of the narcotics. [RR-III-107]. Appellant then questioned

Ms. Williams at length about the circumstances of the charge against her

from this incident being dismissed and about the possibility the State could

refile the charges against her. [RR-III-107-109]. Appellant then questioned

Ms. Williams about her not telling the investigating officers who

interviewed her in February of 2014 about Appellant swallowing an

unknown item. [RR-III-110-111]. Appellant then asked Ms. Williams how

long it would take her to have hidden drugs behind the DVD slot to which

Ms. Williams stated she did not know because she had not done such a

thing. [RR-III-111]. Appellant then asked Ms. Williams if she was the one

who told Appellant not to pull over during the initial traffic stop; an
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                  7
accusation that Ms. Williams denied. [RR-III-111-112]. Appellant then

accused Ms. Williams of having not seen Appellant swallow anything; an

accusation that Ms. Williams also denied. [RR-III-112].

            The State next called Sergeant Joseph Randolph of the Victoria

County Sheriff’s Office. [RR-III-116]. Sergeant Randolph described how

on the morning of January 19, 2014, there was an incident in the Victoria

County jail where the Appellant was found lying on the floor of a holding

cell, shaking. [RR-III-119]. Sergeant Randolph further established this

occurred after the Appellant had been in a holding cell for over nine hours.

[RR-III-121]. Sergeant Randolph then testified that when deputies approach

the Appellant, Appellant was unresponsive and was bleeding “pretty bad”

from the back of his head. [RR-III-122-123]. Sergeant Randolph further

established that Appellant was suffering a seizure and that his condition was

serious enough that Appellant was taken to the hospital. [RR-III-124-125].

Sergeant Randolph then described interviewing Brittany Williams for

medical purposes as he believed she might have relevant information about

Appellant’s condition. [RR-III-127]. Sergeant Randolph then described

what was told to Ms. Williams about Appellant’s condition and the

information she provided about having seen Appellant swallow an unknown

object. [RR-III-127-128].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             8
            On cross-examination Appellant asked Sergeant Randolph if Ms.

Williams had told him that she had given the drugs to Appellant to swallow.

[RR-III-129].                    Sergeant Randolph stated she did not make such an

admission. [RR-III-129].

            The State later called Dr. Daniel Cano. [RR-III-151]. Dr. Cano

testified that he treated the Appellant in January of 2014. [RR-III-154]. Dr.

Cano sponsored the admission of medical records from Appellant’s

treatment at that time. [RR-III-160; State’s Exhibits 20-21]. Dr. Cano then

established that Appellant’s principle diagnosis was poisoning by cocaine,

and that he agreed with that diagnosis. [RR-III-165; State’s Exhibit 20]. Dr.

Cano then helped show how State’s Exhibit 21 established that Appellant

had ingested an unknown amount of cocaine, benzodiazepine, and PCP.

[RR-III-167; State’s Exhibit 21]. Dr. Cano then established that a person

could have a seizure ten hours after swallowing cocaine if there was a

delayed release into the bloodstream, and that wrapping cocaine in a plastic

baggie could cause such a delayed release. [RR-III-171-172].

            On cross-examination, Dr. Cano established the hospital had detected

the presence of cocaine, PCP, and benzodiazepine through a urine test. [RR-

III-174].



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                  9
            After the completion of the State’s case, Appellant recalled Brittany

Williams to the stand.                       [RR-IV-61].   Appellant then questioned Ms.

Williams about whether she had told Sergeant Randolph that Appellant had

removed the unknown substance that he then swallowed from his sock, to

which Ms. Williams acknowledged she had not so told Sergeant Randolph.

[RR-IV-70]. Appellant then once again reiterated that Ms. Williams was a

convicted felon. [RR-IV-71-72]. Appellant also asked Ms. Williams if she

would lie in order to avoid having criminal charges from this incident re-

filed upon her, to which Ms. Williams insisted she would not lie. [RR-IV-

72].

            Appellant’s closing argument suggested that Appellant had continued

driving after being signaled to stop by the police simply because Appellant

wanted to stop under a light. [RR-IV-100-101]. Appellant’s counsel then

again reiterated Ms. Williams’ criminal record and insisted she had lied

during the trial. [RR-IV-101-102]. Appellant’s counsel then argued that

Ms. Mayo also had a motive to lie given her friendship with Ms. Williams.

[RR-IV-103]. Appellant’s counsel then at length attacked Ms. Williams’

credibility by stressing her prior criminal record, alleged inconsistencies in

her testimony and argued that Ms. Williams had given the Appellant the

drugs to swallow, that Ms. Williams had a motive to lie to avoid being
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                     10
prosecuted in this matter herself, and that the drugs at question in this case

belonged to Ms. Williams. [RR-IV-104-109]. Appellant’s counsel also

stressed that the drugs were more visible from Ms. Williams’ vantage point

in the vehicle then they were from Appellant’s. [RR-IV-110]. Appellant’s

counsel then criticized the police investigation for not taking photographs of

where the digital scale was located, for potentially contaminating any finger

prints on the seized items, and for not having drug detecting dogs perform a

sniff on the seized money. [RR-IV-110-112]. Appellant’s counsel then

again attacked Ms. William’s credibility, reminding the jury that she was “a

convicted drug dealer” and insisting that she was only testifying to protect

herself and that the drugs actually belonged to Ms. Williams. [RR-IV-114-

116]. Appellant’s counsel then insisted that the case really comes down to

whether “you believe Brittany Williams or you don’t believe Brittany

Williams.” [RR-IV-117].

         The jury found Appellant guilty of the offense alleged in the

indictment. [RR-IV-130]. After the sentencing hearing, the jury assessed a

punishment of 35 years imprisonment and a $5,000 fine. [RR-IV-166].




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             11
                                     SUMMARY OF THE ARGUMENT

           The trial court did not abuse its discretion in permitting the evidence

that Appellant had swallowed narcotics prior to being contacted by the

police to be admitted into evidence as that evidence was relevant and was

not unfairly prejudicial.

         The evidence was relevant because it helped the State establish two

facts of consequence for the case. First it provided proof of the affirmative

link between the Appellant and the narcotics located in his vehicle which the

State had to establish in order to prove the possession element of the charged

offense. Second the evidence helped the State “shore up” the testimony of

one of its key witnesses, Brittany Williams, whose credibility was critical in

this case and was under heavy attack by the defense throughout the trial.

Therefore since the evidence helped prove facts of consequence, the

evidence was relevant.

         Nor was the evidence unfairly prejudicial. The evidence had immense

probative value as the State had a clear need for the challenged evidence. It

was the only evidence the State had linking the Appellant to the drugs

located in his vehicle that could not be plausibly attacked or explained away

by the defense. Furthermore, it was the only evidence the State had at all

that could shore up Ms. William’s testimony after the defense attacked her
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                               12
credibility and suggested she was actually the person in possession of the

narcotics. Nor did the evidence risk having the jury decide the case on an

improper basis. It was not unduly inflammatory evidence, and the evidence

was directly relevant to the charged offense. Furthermore, even if there was

some risk of unfair prejudice from this evidence, that risk did not

substantially outweigh the probative value of the evidence. Therefore the

evidence was not unfairly prejudicial and as such since it was relevant and

was not unfairly prejudicial it was properly accepted into evidence.

        In the alternative any error from the admission of this evidence was

harmless because it would only have been error to admit the evidence if the

State’s other evidence was so overwhelming the State did not need this

evidence, and if the remainder of the State’s case was that overwhelming

then the admission of this evidence could not have had any impact on the

verdict.             This is because if the remainder of the State’s case had

overwhelming evidence of Appellant’s guilt then he would have been found

guilty whether the challenged evidence was admitted or not.

                                             ARGUMENT

   I. The trial court did not abuse its discretion in allowing the
      admission of evidence that Appellant had swallowed narcotics right
      before being confronted by the police.

         The trial court acted well within its discretion in determining that the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                13
evidence concerning Appellant having swallowed cocaine and other

narcotics prior to being contacted by the police was neither irrelevant nor

unfairly prejudicial.

           The test for relevance is whether a reasonable person would believe the

particular piece of evidence is helpful in determining the truth or falsity of

any fact that is of consequence to the case. See Montgomery v. State, 810

S.W. 2d 372, 376 (Tex. Crim. App. 1990). Nor does evidence have to be

dispositive of an issue to be relevant. Evidence merely tending to affect the

probability of the truth or falsity of a fact in issue is still relevant.

Montgomery, 810 S.W. 2d at 376. All the evidence has to do is provide a

“small nudge” towards proving or disproving some fact of consequence. Id.

This broad definition of relevance allows a liberal policy of admission of

evidence for the jury’s consideration. Morales v. State, 32 S.W.3d 862, 865

(Tex. Crim. App. 2000). Furthermore, understanding that reasonable people

may disagree on “whether a particular inference is available”, appellate

courts are not to disturb a trial court’s determination of relevance so long as

the trial court’s ruling was “within the zone of reasonable disagreement.”

Rogers v. State, 853 S.W. 2d 29, 33 (Tex. Crim. App. 1993).

           In the present case there was no serious dispute that the seized

contraband was cocaine. There was no serious dispute that the cocaine was
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             14
lawfully obtained pursuant to a valid stop and search. And there was no

serious dispute concerning the identity of the Appellant. Therefore the

critical issue in this case was whether or not Appellant was in possession of

the narcotics found within his vehicle.

           The State could not prove Appellant was the person in possession of

the contraband solely by showing the drugs were located in his vehicle or by

showing that Appellant was found in close proximity to those drugs. It is

well settled Texas law that when a defendant is not in exclusive possession

of the place where contraband is located, the defendant’s presence at the

location is by itself insufficient as a matter of law to establish the defendant

had knowledge or control over the contraband. See Cude v. State, 716 S.W.

2d 46, 47 (Tex. Crim. App. 1986). Rather in such circumstances the State

must present some evidence, either direct or circumstantial, beyond mere

proximity to the drugs to establish an affirmative link between the accused

and the contraband in order to prove possession beyond a reasonable doubt.

See Evans v. State, 202 S.W. 3d 158, 161-162 (Tex. Crim. App. 2006).

           Here, Appellant did not have exclusive possession of the place where

the contraband was located. He was not alone in his vehicle at the time the

drugs were found there but rather had a passenger, Brittany Williams, who

was located just as close if not closer to the contraband narcotics as he was.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             15
[RR-III-39, 61]. Furthermore, it was certainly plausible to believe that Ms.

Williams could be in possession of the narcotics as she was on parole for a

prior felony conviction for drug trafficking at the time of this offense. [RR-

III-95]. And Appellant largely centered his entire defense strategy on that

exact ground: disputing possession of the narcotics by repeatedly insisting or

implying throughout his opening argument, through the cross-examination

of the State’s witnesses, and in his closing argument that the seized drugs

actually belonged to Ms. Williams. [RR-II-149, III-33-34, 39, 41, 44-46,

60-61, 107, 111-112, 129, IV-109-110, 116].

         Therefore the State needed evidence to establish an affirmative link

between Appellant and the illegal narcotics. Evidence that, mere seconds

before he was to be questioned by the police, Appellant swallowed narcotics

(including the very substance, cocaine, that was found hidden in great

quantities in Appelant’s vehicle) was strong evidence to establish that

required affirmative link.

           There was specific evidence to suggest that the drugs Appellant

swallowed were part of the same consignment of drugs as the other drugs

located in Appellant’s vehicle. Sergeant Randolph’s testimony established

that Appellant suffered a seizure after over nine hours in police custody.

[RR-III-114, 121]. Dr. Cano likewise explained that a seizure could still
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             16
occur ten hours after swallowing cocaine if there was a delayed release of

cocaine into the bloodstream.                 [RR-III-171].   Dr. Cano then further

established that wrapping cocaine in plastic would help delay its release into

the bloodstream. [RR-III-172]. From this, it would be logical to infer that

the cocaine Appellant swallowed must have been wrapped in plastic, and

that in turn makes it very likely the drugs Appellant swallowed were part of

the same consignment of drugs as the drugs that were found in Appellant’s

vehicle.                It is likewise a logical inference that the same type of drugs

(cocaine), that were both present in the same automobile at the same time,

were both within arms distance of the same defendant, were both hidden

from view, and were both wrapped in plastic, must have been part of the

same consignment of drugs. [RR-III-161, 166-167]. And if Appellant had

control over part of the consignment (which he obviously did since he was

able to swallow that portion of the consignment) then it is likewise

reasonable to conclude that he must have had control over the rest of the

consignment as well.

           The evidence suggesting that both the drugs Appellant swallowed and

the drugs that were located in the DVD slot of Appellant’s vehicle were part

of the same consignment of drugs is circumstantial. However, fact-finders

are permitted to make reasonable inferences from circumstantial evidence
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                17
and to “draw reasonable inferences from basic facts to ultimate facts.” See

Hooper v. State, 214 S.W. 3d 9, 13-14 (Tex. Crim. App. 2007). Moreover,

the fact finder is also permitted to draw multiple reasonable inferences from

the evidence, so long as each inference is supported by the evidence at the

trial.        Id. at 15-16.                  Each inference that is necessary to come to the

conclusion that Appellant had knowledge and control of the narcotics found

in the DVD slot of his vehicle based upon him having swallowed narcotics

right before being stopped by the police, is a reasonable inference that is

supported by the evidence.                            Therefore the evidence that Appellant

swallowed some of the cocaine was directly relevant for establishing one of

the elements of the charged offense: that he had knowing possession over

the rest of the cocaine that was found in his vehicle.

           The evidence that Appellant swallowed some benzodiazepines and

PCP was similarly relevant. The Court of Criminal Appeals has already

accepted that evidence that a defendant uses and sells one type of drug can

be relevant to establish he possesses another illegal drug. See Rogers, 853

S.W. 2d at 32. If evidence of possessing one drug can be relevant to prove

possession of another drug than logically evidence that a defendant

swallowed drugs immediately prior to being contacted by the police should

also be held as relevant to show that the defendant has control over the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                        18
nearby hidden drugs even if some of the drugs Appellant swallowed are a

different substance than the hidden drugs that were located.

           Furthermore, attempting to destroy or conceal evidence has long been

considered consciousness of guilt evidence. See Sanchez v. State, 2015 WL

2353382, 13-12-00603-CR at 10 (Tex. App.-Corpus Christi 2015, pet.

filed)(mem. op. not designed for publication); Ethridge v. State, 795 S.W. 2d

281, 285 (Tex. App.-Houston [14th Dist.] 1990, pet. dism'd, 812 S.W. 2d 600

(Tex. Crim. App. 1990) (en banc). Consciousness of guilt evidence is one

of the strongest kinds of evidence of guilt. Hyde v. State, 846 S.W. 2d 503,

505 (Tex. Crim. App. 1993). Thus evidence that Appellant was actively

attempting to destroy (or at least conceal within his body) evidence of

narcotics at the crime scene was very powerful evidence for showing that

Appellant had knowledge and control over the narcotics hidden within his

vehicle.

           Therefore the evidence that Appellant swallowed a quantity of cocaine

and other narcotics immediately prior to being contacted by the police was

clearly helpful in determining the truth or falsity of a fact that was of

consequence to the case, specifically whether or not Appellant had knowing

possession of the narcotics found in his vehicle. That means that evidence

was relevant.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             19
           Proving possession is not the only grounds for which this evidence was

relevant though; the evidence was equally relevant for helping shore up the

credibility of one of the State’s key witnesses, Ms. Brittany Williams.

           Brittany Williams testified not only to observing Appellant swallow

some unknown object [RR-III-90] but also to the fact that she did not

possess or even know about the narcotics located within the vehicle. [RR-

III-98].            Her testimony disclaiming possession and knowledge of the

narcotics was critical, since, as already discussed, Brittany Williams was

otherwise a plausible alternative suspect for the possession of the narcotics

at issue in this case.

           Appellant clearly recognized the importance of Brittany Williams’

testimony and her potential as an alternative suspect to explain the presence

of the narcotics as Appellant proceeded to relentlessly attack Brittany

Williams’ credibility though out the proceedings. In his opening argument

Appellant pointed out that Ms. Williams was also initially charged with this

offense and then stressed that she was on parole for delivery of cocaine.

[RR-II-148]. Appellant then asserted his theory that it was Ms. Williams

who was actually in possession of the contraband narcotics found in the

vehicle and stressed her close proximity to the narcotics at issue in the case.

[RR-II-149-150]. Appellant continued these arguments throughout the trial,
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             20
repeatedly referencing her criminal record and implying she was the person

who actually possessed the narcotics. [RR-III-41, 73, 99-102, 107-109].

And Appellant hit these points hard throughout his closing argument, where

he again repeatedly attack Brittany Williams’ credibility. [RR-IV-102-105,

108, 114, 116].                      Furthermore, Appellant’s closing argument specifically

argued that “this case really boils down to you believe Brittany Williams or

you don’t believe Brittany Williams.” [RR-IV-117]. Therefore Brittany

Williams’ credibility was clearly a critical issue in this case and the linchpin

of the defense strategy.                     And more to the point this was an eminently

sensible strategy on the Appellant’s part for if the jury had disbelieved

Brittany Williams’ testimony then there was a very real chance they would

have acquitted.

         Since Ms. Williams’ testimony was key in this trial, the evidence that

Appellant had cocaine, benzodiazepines, and PCP in his system was highly

relevant because it helped substantiate her testimony and thus helped

establish her credibility. State’s Exhibits 20 and 21 and the testimony of

Sergeant Randolph and Dr. Cano were key for proving that Ms. Williams

was telling the truth about observing Appellant swallow something in the

car. The most logical inference from Ms. Williams’ observation in the car

was that Appellant swallowed a quantity of narcotics, since Appellant would
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                      21
have no reason to frantically try and swallow something that was not

contraband.                  Moreover, the possibility that Appellant had swallowed

narcotics was confirmed by the hospital records and the testimony of

Sergeant Randolph and Dr. Cano which established that several narcotics

were found in Appellant’s system, right after Appellant had suffered seizures

that were consistent with the consumption of cocaine and PCP and which

occurred within a time frame that was consistent with Appellant having

swallowed cocaine wrapped in plastic the night before. [RR-III-121, 124-

125, 165, 171-172, State’s Exhibits 20-21].

           The fact that Ms. Williams was being truthful about having seen

Appellant swallow something made the remainder of her testimony where

she denied having possession of the narcotics found in the vehicle far more

credible. It not only showed that Ms. Williams was being truthful about

what she had seen that night, but it also rebutted the idea that her motive in

telling the police about Appellant swallowing something was done to curry

favor with law enforcement or to shift the blame from herself to the

Appellant. Instead it helped prove that her motive in reporting what she saw

Appellant do to Sergeant Randolph was a genuine desire to get her cousin

needed medical assistance.                   [RR-III-96, 127-128].   Thus the contested

evidence helped shore-up the testimony of a key State’s witness and directly
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                  22
helped rebut one of the main defense arguments in the case (that Ms.

Williams was testifying against the Appellant simply to protect herself from

criminal prosecution.)

           This was clearly proper evidence for the State to present. As a general

rule, the State is entitled to present evidence that tends to refute a defensive

theory. See Marles v. State, 919 S.W. 2d 669, 672 (Tex. App.-San Antonio

1996, pet. ref’d). This principle holds true even when the rehabilitative

evidence includes extraneous offense evidence. See Yohey v. State, 801

S.W. 2d 232, 236 (Tex. App.-San Antonio 1990, pet. ref’d); Davis v. State,

979 S.W. 2d 863, 867 (Tex. App.-Beaumont 1998, no pet). And the defense

attacking the credibility of one of the State’s key witnesses justifies the

introduction of extraneous offense evidence when that evidence helps bolster

the credibility of the State’s witness. See Smith v. State, 211 S.W. 3d 476,

480-481 (Tex. App.-Amarillo 2006, no pet); see also Montgomery, 810 S.W.

2d 372 (suggesting that it would be appropriate for the State to use

extraneous offense evidence to “shore up” the testimony of one of its

witnesses if the defense had actually impeached that witness.)

           Thus the evidence about Appellant swallowing narcotics immediately

prior to his contact with the police was also helpful for determining the truth

or falsity of whether Brittany Williams’ testimony concerning whether she
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             23
had possession of the narcotics in the vehicle could be believed and since

that was also a major issue in the case, the contested evidence was also

relevant on that ground.

         Accordingly, the evidence of Appellant’s actions in swallowing

narcotics prior to being contacted by the police was clearly relevant

evidence. It helped established the affirmative link necessary to prove the

possession element of the offense, and it helped substantiate the credibility

of a key State’s witness whose credibility was under heavy attack by the

defense. The evidence was therefore relevant on two important issues. It

also helped give full context to the events surrounding Appellant’s arrest and

was therefore also important to enable the fact finder to understand exactly

what happened at the time of Appellant’s stop and arrest. Accordingly, the

challenged evidence was highly relevant and as such the trial court did not

abuse its discretion in finding this evidence relevant, and since the trial

court’s determination of relevance is entitled to great deference, that

determination of relevance should be upheld.

           Of course just because evidence is relevant does not automatically

render it admissible. Relevant evidence can still be deemed inadmissible if

its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             24
considerations of undue delay, or needless presentation of cumulative

evidence. See TEX. R. EVID. 403; Casey v. State, 215 S.W. 3d 870, 879

(Tex. Crim. App. 2007).                      Thus it is also necessary to consider if this

evidence though relevant was unfairly prejudicial.

           Under Texas Rule of Evidence 403, evidence is only to be excluded for

“unfair prejudice” if the probative value of the evidence is “substantially

outweighed” by its danger of unfair prejudice. See also Feldman v. State, 71

S.W. 3d 738, 754 (Tex. Crim. App. 2002). “Probative value” refers to how

strongly an item of evidence serves to make more or less probable a fact of

consequence to the litigation, coupled with the proponent’s need for the item

of evidence. Gigliobianco v. State, 210 S.W. 3d 637, 641 (Tex. Crim. App.

2006). “Unfair prejudice” refers to a tendency to suggest deciding the case

on an improper basis. Id. In evaluating the relative probative value versus

the unfairly prejudicial effect of evidence, a trial court’s determination is

only to be reversed after a “clear abuse of discretion.” Mozon v. State, 991

S.W. 2d 841, 847 (Tex. Crim. App. 2004).

         The Gigliobanco case established six factors trial courts are to consider

in determining if evidence is inadmissible under Rule of Evidence 403.

Gigliobanco, 210 S.W. 3d at 641-642. However, Appellant’s brief only

raised two of those factors (thus implicitly conceding the other four factors).
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                    25
It is clear in considering the applicable Gigliobanco factors that the trial

court did not abuse its discretion in this case in finding the contested

evidence was not unfairly prejudicial.

           Appellant’s two grounds for finding the evidence of Appellant

swallowing narcotics was unfairly prejudicial were: 1) that the State did not

need the evidence, and 2) that the evidence created a risk that the jury would

convict on an improper basis. Neither of those grounds forms a basis for

overturning the trial court’s ruling given the specific facts of this case.

           As to the Appellant’s first ground, the State clearly had a compelling

need for the contested evidence. As already mentioned, the mere fact that

the drugs were found near Appellant was insufficient as a matter of law by

itself to prove he was in possession of the drugs. Cude, 716 S.W. 2d at 47.

Therefore the State needed some additional evidence to link Appellant to the

drugs and, given the presence in the vehicle at the time of the police stop of

a second person, who was not merely a convicted felon, but who actually

was a convicted drug trafficker, this linkage evidence was going to have to

be highly compelling to be able to convince a jury beyond a reasonable

doubt that the drugs belonged to the Appellant.

            Now admittedly, the State did have some other linkage evidence

beyond just the evidence of Appellant swallowing narcotics to help connect
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             26
the Appellant to the contraband narcotics. In addition to the evidence of

Appellant not immediately pulling over when signaled to by the police [RR-

II-154-155], there was also the testimony of Ms. Moya describing Appellant

fidgeting with the DVD player in his car earlier that day [RR-III-65, 67, 69],

and Ms. Moya’s assertion that she saw plastic within the DVD slot at that

time. [RR-III-68]. There was also the evidence of a tiny, “Batman baggie”

found on the Appellant’s person along with $404. [RR-II-178-179]. And

there was evidence of a digital scale of the type used by drug traffickers that

was located in Appellant’s vehicle. [RR-II-167-168].

           However, while this evidence could have theoretically linked

Appellant to the narcotics found in the DVD slot, in practice none of this

evidence was particularly compelling as the defense strongly attacked each

of these evidentiary points.

            Appellant’s counsel provided a plausible explanation for why

Appellant did not immediately stop his vehicle: that since it was nighttime

Appellant wanted to stop his vehicle under a street light. [RR-III-26-27, IV-

100-101].                  The testimony of Ms. Moya was subject to powerful

impeachment given that Ms. Moya was herself a convicted thief [RR-III-70],

and had a plausible compelling motive to lie given her very close friendship

to Ms. Williams. [RR-III-72]. The “Batman baggie” was not intrinsically a
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             27
contraband item and nothing suspicious was found inside of it. [RR-III-50].

The money seized from Appellant had limited probative value, both due to it

being a comparatively small amount ($404 is certainly not nothing, but it is

not such a large amount either that it automatically screams drug trafficker),

and due to the defense strongly attacking the government’s investigation for

not having drug detecting dogs smell the money to determine if it had ever

been near narcotics. [RR-III-16-20]. And the digital scale was found in a

location that was just as close to Ms. Williams as it was to the Appellant,

and thus was just as capable of supporting Appellant’s theory that the drugs

belonged to Ms. Williams as supporting the State’s contention that the drugs

belonged to the Appellant. [RR-III-33-34].

            Therefore none of the alternative linkage evidence options the State

had available were particularly compelling, and as such the State had a

substantial need for stronger, more convincing evidence that would

conclusively link Appellant to the contraband narcotics and could not be

explained away by the defense. The evidence that Appellant had swallowed

some drugs right before being contacted by the police was this stronger,

more convincing linkage evidence. Appellant could explain away or attack

his not immediately stopping, Ms. Moya’s testimony, the “Batman baggie”

the money, and the digital scale but he had no good explanation for the drugs
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             28
that were inside his own body, especially since the medical evidence made it

clear those drugs had only recently been ingested. And in fact the evidence

of Appellant swallowing the narcotics proved so compelling and so

irrefutable that Appellant did not even attempt to dispute it, but rather

conceded right away in his opening argument that he had swallowed some

drugs and instead just tried to argue that he had only swallowed the drugs at

the request of Ms. Williams. [RR-II-149].

             The evidence of Appellant swallowing the narcotics was the strongest

evidence the State had for providing an affirmative link between Appellant

and the contraband found in his vehicle as it was the only linkage evidence

in this case that the defense could not plausibly challenge. And since the

Appellant did attack all of the State’s other linkage evidence, this evidence

clearly had great probative value. See Johnson v. State, 68 S.W. 3d 644,

651-652 (Tex. Crim. App. 2002)(holding that when the defense challenges

the probative value of the State’s other evidence addressing a certain issue

then extraneous offense evidence that also helps prove the disputed issue

becomes much more probative.) Thus the State clearly had substantial need

of this evidence to prove the possession element of the charged offense.

            Additionally, even if there was some other evidence, weak though it

may have been, to establish an affirmative link between the Appellant and
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             29
the narcotics in the DVD slot, the evidence of Appellant swallowing the

narcotics was the only evidence the State had that could help substantiate

Ms. William’s testimony and rebut the defense theory that she was lying and

that she was the true possessor of the contraband narcotics. As already

discussed, the defense’s entire strategy was based on attacking Ms.

Williams’s credibility and trying to argue that she was the person who

actually possessed the narcotics at issue in this case. Therefore being able to

validate her testimony was essential to the State’s case. The evidence of

Appellant swallowing an unknown object (which subsequent medical

testimony established must have been narcotics) was not merely the best

evidence the State had to validate Ms. William’s testimony, it was the only

evidence the State had that could do that and as such it was the only

evidence the State had that could conclusively disprove the defense theory

that Ms. Williams was the person who actually possessed the narcotics that

night. The State had no other way to do this. There were no other witnesses

in the car that the State could call, and certainly without outside

confirmation from a reliable source Ms. William’s testimony would be

highly suspect given her criminal record and her having a clear, compelling

motive to lie so that she could avoid prosecution herself. Therefore since

Ms. William’s credibility was such an important issue in the trial, and since
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             30
the evidence of Appellant swallowing the narcotics was the only evidence

the State had to show Ms. Williams was testifying truthfull, the State had

great need of this evidence on that ground as well.

            Thus with the State clearly having a compelling need for the

challenged evidence, it becomes necessary to consider Appellant’s second

claim of unfair prejudice, that the evidence created a grave danger of the

jury making its decision on an improper basis, and on that point there was

little danger of this evidence improperly influencing the jury.

            The State was not offering evidence of some disparate criminal

episode that was unconnected to the charged offense in time or space. Quite

the contrary, the challenged evidence stemmed from Appellant’s actions

which occurred contemporaneous with the charged offense. Moreover the

evidence was persuasive that the drugs Appellant swallowed were in fact

part of the exact same consignment of drugs at issue in this case as they were

similarly wrapped, were located in the same area at the same time, and both

the swallowed drugs and the hidden drugs included cocaine. Thus this

evidence related directly to the charged offense.       Evidence that relates

directly to the charged offense does not have great potential to impress the

jury in an irrational way. State v. Mechler, 153 S.W. 3d 435, 440-441 (Tex.

Crim. App. 2005).
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             31
           Nor was the evidence that Appellant had consumed some drugs

particularly inflammatory.                    The challenged evidence was not any more

heinous than the charged offense. As such the risk that the jury would

consider the evidence that Appellant had swallowed some narcotics in an

irrational way was slight. See Rogers v. State, 2006 WL 240229, 2-04-529-

CR at 8 (Tex. App.-Ft. Worth, no pet)(mem. op. not designated for

publication).

            As such even if the evidence that Appellant swallowed some narcotics

right before being contacted by the police is deemed to have some risk of

unfair prejudice, that risk is still substantially outweighed by the probative

value of the evidence. Rule of Evidence 403 requires the probative value of

evidence to be substantially outweighed by the danger of unfair prejudice.

In this case the probative value of the challenged evidence was extremely

high both as the strongest evidence for establishing the affirmative link

required to prove Appellant had knowing possession of the narcotics found

inside the vehicle and also as the only evidence for rehabilitating Brittany

Williams’ credibility after it was attacked by the defense. Thus it would

take extremely prejudicial evidence to substantially outweigh the probative

value of this evidence.                      Evidence of other drug use is not nearly so

inflammatory as to constitute extreme prejudice and thus the danger of
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                     32
unfair prejudice from this evidence clearly did not substantially outweigh the

probative value of the evidence.

           Therefore the trial court also acted well within its sound discretion in

finding the evidence of Appellant swallowing narcotics immediately prior to

being contacted by the police was not unfairly prejudicial. And since the

evidence was relevant and was not unfairly prejudicial, it was properly

accepted into evidence, and the trial court’s ruling admitting that evidence

should therefore be affirmed.

    II. In the alternative, any error from the admission of the evidence of
        Appellant swallowing narcotics immediately prior to being
        contacted by the police was harmless.

            In the alternative, even if there was error in the admission of the

evidence of Appellant swallowing the narcotics, that error is harmless given

the overwhelming other evidence of Appellant’s guilt.

            The erroneous admission of evidence is non-constitutional error under

Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Ketchum v.

State, 199 S.W. 3d 581, 593 (Tex. App.-Corpus Christi 2006, pet. ref’d). A

criminal conviction should not be overturned for non-constitutional error if

the appellate court, after examining the record as a whole, has fair assurance

that the error did not have a “substantial and injurious effect or influence in

determining the jury’s verdict.” Casey, 215 S.W. 3d at 885.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             33
              In the present case, the State believes the objected to evidence was

powerful evidence that was highly relevant for establishing both that there

was an affirmative link between Appellant and the contraband and for

proving that the testimony of Brittany Williams can be believed. However,

Appellant’s brief contends the State did not actually need the objected to

evidence. Should this Honorable Court accept that argument and agree with

Appellant that the State did not actually need this evidence, than logically

the admission of the evidence must have been harmless. After all, if the

State did not need this additional evidence that can only mean that the

remainder of the State’s evidence was overwhelming for establishing

Appellant’s guilt.                           (If the remainder of the State’s evidence was not

overwhelming for proving Appellant’s guilt then it obviously cannot be

argued that the State did not need this additional evidence. The additional

evidence would only not be needed if the State had already conclusively

proven Appellant’s guilt without it.) And if the remainder of the State’s

evidence was overwhelming evidence of guilt than the objected to evidence

could not have impacted the verdict. See Gonzalez v. State, 2014 WL

4049800, 13-13-00427-CR at 14 (Tex. App.-Corpus Christi 2014, pet.

ref’d)(finding that even in a case where the erroneously admitted evidence

“played a large part in the State’s case” the admission of that evidence was
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                           34
still harmless given the extent of the State’s other evidence.”)

              Appellant simply cannot have it both ways. Either the State’ other

evidence was not overwhelming, in which case the State did have a

legitimate need for the objected to evidence which means that evidence was

not unfairly prejudicial and thus was properly admitted, or the State’s other

evidence was overwhelming in which case the admission of the challenged

evidence did not affect the verdict because the Appellant would have been

found guilty regardless of whether the evidence was admitted or not. Under

either option Appellant is not entitled to any relief, and as such the trial

court’s judgment should be affirmed.




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                             35
                                              PRAYER

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court affirm the judgment of the trial court.

.

                                             Respectfully submitted,


                                             STEPHEN B. TYLER
                                             CRIMINAL DISTRICT ATTORNEY

                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139


                                             ATTORNEYS FOR THE APPELLEE,
                                             THE STATE OF TEXAS




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                  36
                                     CERTIFICATE OF COMPLIANCE

            In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,

Texas, certify that the number of words in Appellee’s Brief submitted on

July 17, 2015, excluding those matters listed in Rule 9.4(i)(1) is 7,461.



                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                  37
                                             CERTIFICATE OF SERVICE

            I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria

County, Texas, certify that a copy of the foregoing brief has been served on

W. A. White, P. O. Box 7422, Victoria, Texas 77903, Attorney for the

Appellant, James Cortney Dean, by electronic mail on the day of July 17,

2015.

                                                   /s/ Brendan W. Guy
                                                   Brendan W. Guy
                                                   Assistant Criminal District Attorney
                                                   SBN 24034895
                                                   205 North Bridge Street, Suite 301
                                                   Victoria, Texas 77902
                                                   E-mail: bguy@vctx.org
                                                   Telephone: (361) 575-0468
                                                   Facsimile: (361) 576-4139




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
                                                        38
