Zachary Ryan Simons v. State ( 2018 )

NUMBER 13-18-00091-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ZACHARY RYAN SIMONS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 130th District Court
of Matagorda County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant Zachary Ryan Simons appeals from a judgment of conviction for
possession of between one and four grams of methamphetamine, a controlled substance,
with intent to deliver, a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(6), 481.112 (West, Westlaw through 2017 1st C.S.). By one issue, appellant
argues the trial court erred when it overruled his objection to part of a witness’s testimony.
We affirm.
I. BACKGROUND
Appellant was arrested during a traffic stop for an outstanding warrant. In the
vehicle, police found methamphetamine, plastic bags of different sizes, and a digital
scale. On May 23, 2017, appellant was indicted for possession of a controlled substance
with intent to deliver. See id. §§ 481.102(6), 481.112. The State also alleged a prior
felony conviction for the purpose of enhancing appellant’s punishment to that of a first-
degree felony. See TEX. PENAL CODE ANN. § 12.42(b) (West, Westlaw through 2017 1st
C.S.); see also id. § 12.32 (West, Westlaw through 2017 1st C.S.) (providing that a first-
degree felony is punishable by imprisonment for a term between five to ninety-nine years
and a fine not to exceed $10,000). He pleaded not guilty and proceeded to trial.
At trial, appellant admitted that he possessed the controlled substance, but he
disputed the “intent to deliver” element. Tyler Miles, a sergeant with the Matagorda
County Sheriff’s Office, testified for the State. Miles explained that he is assigned to the
narcotics task force in Matagorda County and testified about his familiarity with the sale
and use of narcotics in the area. As the State questioned Miles on redirect regarding his
experience with controlled purchases, the following exchange occurred:
[State]: Sergeant Miles, so I don’t leave something left
open, when you’re making those purchases,
when you’re purchasing the controlled
substance and you tell someone that, hey, we
want to purchase whatever amount, a gram,
eight-ball, whatever it is, when you’re
undercover what you’re saying that you want to
purchase, is it your experience then that the
person selling that controlled substance to you
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anticipates that you’re going to weigh it to make
sure you bought the right amount?
[Defense Counsel]: Objection, calls for speculation.
[The Court]: Overruled.
[Miles]: Yes, sir.
[State]: So would you typically be walking in with digital
scales and say I want to weigh that before I buy
it?
[Miles]: I’ve never taken a scale in and weighed it.
They’ve always—the person selling it weighs it.
[State]: Okay. That’s—maybe I was—maybe I was
confusing in my question. My question is: Does
the purchaser—is the purchaser, you, expected
to be weighing with your scales the amount that
the dealer is selling to you?
[Miles]: No, sir.
The jury found appellant guilty of the offense as charged, and appellant pleaded
true as to the enhancement allegation. The jury found the enhancement allegation to be
true, sentenced appellant to life imprisonment in the Institutional Division of the Texas
Department of Criminal Justice, and assessed a $5,000 fine. See id. §§ 12.32, 12.42(b).
This appeal followed.
II. DISCUSSION
A. Standard of Review and Applicable Law
We review a trial court’s decision on the admissibility of evidence for an abuse of
discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing Burden v.
State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)); see Ellison v. State, 201 S.W.3d 714,
723 (Tex. Crim. App. 2006). A trial court abuses its discretion if it acts arbitrarily or without
reference to guiding rules or principles. State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim.
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Ohio App. 2014). We will not reverse the trial court’s ruling unless the ruling falls outside the
zone of reasonable disagreement. Torres, 71 S.W.3d at 760.
If we find error regarding the admissibility of evidence, we will disregard the error
as harmless if it was non-constitutional and did not affect appellant’s substantial rights.
See TEX. R. APP. P. 44.2(a), (b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App.
2001). An erroneous evidentiary ruling is generally non-constitutional error. See Potier
v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) (en banc) (“Erroneous evidentiary
rulings rarely rise to the level of denying the fundamental constitutional rights to present
a meaningful defense.”); see also Casey v. State, 215 S.W.3d 870, 884–85 (Tex. Crim.
App. 2007); cf. Jones v. State, 119 S.W.3d 766, 776–77 (Tex. Crim. App. 2003) (en banc)
(noting that the admission of defendant’s confession was evidentiary error of
constitutional nature because the confession was obtained without Miranda warnings in
violation of the Fifth Amendment). An appellant’s “substantial rights are not affected by
the erroneous admission of evidence ‘if the appellate court, after examining the record as
a whole, has fair assurance that the error did not influence the jury, or had but a slight
effect.’” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Solomon v.
State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410,
417 (Tex. Crim. App. 1998)); see TEX. R. APP. P. 44.2.
B. Analysis
Appellant first argues that the trial court erred when it overruled his objection to
Sergeant Miles’s testimony because the testimony was speculative. The alleged
evidentiary error appellant complains of is non-constitutional. See Jones, 119 S.W.3d at
776–77; Potier, 68 S.W.3d at 663; see also TEX. R. APP. P. 44.2. We will assume, without
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deciding, that the trial court erred in overruling appellant’s objection and proceed to
analyze whether the alleged error had a substantial and injurious effect in determining the
jury’s verdict. See Casey, 215 S.W.3d at 885.
Here, appellant did not dispute the physical evidence obtained during his arrest,
which included a digital scale, plastic bags of different sizes, and methamphetamine, and
he admitted to being in possession of the controlled substance; however, appellant
disputed the “intent to deliver” element. Setting aside the statement objected to by
appellant, the rest of Sergeant Miles’s testimony extensively illustrated why the items in
appellant’s possession were indicative of the “intent to deliver” element. Miles explained,
without objection, that methamphetamine is typically sold in plastic bags of different sizes
consistent with the ones found on appellant’s possession and that drug dealers typically
use digital scales to weigh the drugs they sell. Miles testified, in part, as follows:
[State]: Okay. Now, in the preparation of these controlled
substances for delivery—I mean, you’ve talked about
different weight measurements. You talked about
grams. You talked about quarter ounces. You’ve
talked about eighth of an ounce. How is it then that
someone who is preparing these drugs for delivery
knows how much that is?
[Sergeant Miles]: Well, typically, when we find the narcotics on
somebody who has been distributing them, they have
scales that they have with them. They usually—usually
digital scales. Sometimes we’ve found weighted
scales, but they measure them before they sell it.
[State]: So they can—so they have digital scales that will
measure those amounts and perhaps even convert
grams to ounces so they can sell whatever amount is
being requested?
[Sergeant Miles]: Yes, sir. Yes, sir.
...
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[State]: When you have arrested an end user, who is nothing
more than an addict, do you find them with hundreds
of Ziploc bags of various sizes that are consistent with
the packaging and resale of controlled substances?
[Sergeant Miles]: No, sir.
[State]: Do you find them with digital scales capable of
measuring .1 gram or .1 ounce, which is typically used
for the packaging and disturbing of the thing they use?
[Sergeant Miles]: No, sir.
Appellant did not offer evidence or testimony to rebut any of the testimony provided by
Miles, and the complained-of statement was largely cumulative of the other evidence
presented by the State to show the “intent to deliver” element of the offense. Further, the
question appellant objected to—which Miles answered in the affirmative—asked whether
a person who purchased drugs would weigh the drugs after the purchase. Miles’s answer,
arguably, could have casted doubt on whether his possession of a digital scale really
indicated an intent to sell. After examining the entire record, we have fair assurance that
the statement appellant objected to did not have a substantial and injurious effect or
influence the determination of the jury’s verdict, and we conclude that any error was
harmless. See TEX. R. APP. P. 44.2; Casey, 215 S.W.3d at 885; Motilla, 78 S.W.3d 359–
60.
Finally, appellant also argues that Miles’s testimony was an improper opinion on
an ultimate issue of fact; however, appellant did not object on this ground at the trial court.
To preserve an issue for appeal, a party must timely object, stating the specific legal
basis. TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 121, 127 (Tex.
Crim. App. 1996) (en banc). An objection stating one legal theory may not be used to
support a different legal theory on appeal. Camacho v. State, 864 S.W.2d 524, 533 (Tex.
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Crim. App. 1993) (en banc); see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002) (“[T]he point of error on appeal must comport with the objection made at trial.”).
Here, appellant objected on the basis that Miles’s testimony was speculative, not that it
addressed an ultimate issue of fact. Accordingly, we conclude that this argument was not
preserved for appellate review. See TEX. R. APP. P. 33.1(a)(1); Camacho, 864 S.W.2d at
533.
We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of August, 2018.
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