Brandon Williams v. the State of Texas

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In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-24-00202-CR
     ___________________________

    BRANDON WILLIAMS, Appellant

                      V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 3
           Tarrant County, Texas
         Trial Court No. 1781183


Before Sudderth, C.J.; Birdwell and Walker, JJ.
 Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

       Brandon Williams appeals three felony convictions for possession of three

different controlled substances with the intent to deliver. See
Tex. Health & Safety Code

Ann. §§ 481.112
(a), 481.1123(a).1 Williams challenges his convictions by raising seven

issues related to the trial court’s admission of evidence offered by the State and the

sufficiency of the evidence to support the element of “possession” under the

accomplice-witness rule. Because the trial court did not reversibly err by admitting the

challenged evidence and the nonaccomplice-witness evidence sufficiently tends to

connect Williams to the offenses, we affirm.

                                     I. Background

      At a jury trial, Williams pleaded “not guilty” to three charges of possession with

intent to deliver a controlled substance, specifically fentanyl (count one), cocaine (count

three), and methamphetamine (count five). The State presented nine witnesses,

including an eyewitness, a forensic chemist, a co-defendant, and a variety of law

enforcement officers.

      Ruth Lara Kissler testified that she was living at the Relax Inn in Fort Worth,

Texas, in 2022 and 2023. Kissler, a recovering drug addict, stated that “drug dealing

[was] going on” on the floor below hers. She claimed that she had called the police



      1
       Each conviction was a first-degree felony offense, as the aggregate weight of
each controlled substance was four grams or more, but less than 200 grams.
Id.
§§ 481.112(d), 481.1123(d).

                                            2
“[c]lose to 50” times while she was living there, but nothing was done to address the

issue. Kissler identified Williams as the person she had seen selling drugs at the hotel

and testified that he had tried to sell her oxycodone after she moved in. When Kissler

informed Williams that she was clean, he offered to give her the first one free. Kissler

testified that she eventually brought the issue to the attention of a Tarrant County

Sheriff’s Office deputy. Search warrants were obtained and executed shortly after she

made this report, resulting in Williams’s arrest. Kissler testified that the drug activity at

the hotel was “silent” after his arrest.2

       Sergeant Sean Soria—with the Tarrant County Sheriff’s Office—also testified.

Sergeant Soria stated that he was working with the narcotics enforcement team as a

plainclothes officer when he received a tip about possible drug deals occurring at the

Relax Inn. To verify the tip, Sergeant Soria conducted follow-up surveillance and

observed Williams 3 complete a “hand-to-hand interaction” with an unidentified

individual at the Relax Inn. Sergeant Soria explained that a hand-to-hand transaction is,

in his experience, consistent with narcotics distribution.

       Sergeant Soria called another investigator to assist, and a traffic stop was initiated

on the person whom Sergeant Soria saw make the exchange with Williams. During the



       Kissler moved out two months after Williams’s arrest but testified that things
       2

were “silent for the duration” of her two remaining months at the hotel.
       3
         Sergeant Soria did not testify as to how Williams was first identified but did
testify that he was familiar with Williams.

                                             3
traffic stop, officers arrested the person for fentanyl possession, and the person then

identified “an individual matching [Williams’s] description” as having sold him the

fentanyl pills.

       During the investigation, Sergeant Soria spoke with another “source of

information”4 who identified Williams “as a narcotics distributor” at the Relax Inn.

Sergeant Soria also received information that the narcotics that he was investigating had

been moved from a different room to room 142. Based on his investigation, Sergeant

Soria obtained narcotic search warrants for three rooms at the Relax Inn: 142, 145, and

150. Sergeant Soria—having information that Williams had a GPS ankle monitor 5—

coordinated the execution of the search warrants to coincide with Williams’s presence

at the Relax Inn. Williams’s GPS monitor showed him at the Relax Inn every day

between May 16 and 23, and the search warrants for the three rooms were executed on




       4
        This witness was never identified in the record.
       5
         Josette Phillips, an officer with pretrial probation, testified that she supervised
everyone placed on GPS ankle monitors—including Williams. Officer Phillips also
testified that the location of the Relax Inn was not Williams’s recorded home location
nor his work location, as he was reportedly unemployed. During Officer Phillips’s
testimony, the trial court admitted Williams’s GPS monitor logs showing where he was
between May 16, 2023, and May 23, 2023. The trial court also admitted maps of
Williams’s GPS locations from each of those days.

                                             4
May 23, 2023. Sergeant Soria testified that Williams was arrested “around room 142”

and was staying in room 150.6 Jessica Campbell7 and Mitchell Green8 were also arrested.

      The search of room 142 revealed a collection of various narcotics, including

methamphetamine, cocaine, and fentanyl, along with a small digital scale covered in

white powder. No narcotics were discovered in room 145 or room 150. Sergeant Soria

testified in front of the jury that Williams could have possession and control of the

seized narcotics, even if he was not inside room 142 at the time of the seizure.

      When executing the search warrants, officers also searched Williams and his

vehicle and recovered two hotel key cards, both coded to open room 142. 9 Officers

recovered multiple stacks of cash from the glove compartment and center console of




      6
       Investigator Christopher Holland assisted with photographing room 150 and
Williams’s vehicle that was parked outside room 150. In room 150, he photographed
two receipts that had Williams’s name listed as the customer.
      7
       Campbell was arrested inside room 142 and testified as a co-defendant against
Williams. The jury charge included an accomplice-witness instruction that was not
contested by either party.
      8
       Green was arrested “around room 150” and did not testify.
      9
        Investigator Holland tested the key cards and stated that even though the door
was already open, he heard the internal parts move (a “click” when the keys were held
to the key reader). He also testified that he was able to manipulate the door handle after
holding the cards to the key reader but was not able to do so beforehand.

                                            5
Williams’s vehicle, along with paperwork related to his community supervision and GPS

monitor.10

         After Sergeant Soria’s testimony, Campbell testified that she and Williams had

been good friends since 2007 and that he had been her cocaine supplier for more than

a year. Campbell stated that Williams paid for her to stay in room 142 at the Relax Inn

and that she helped him sell drugs. She admitted to helping bag up and sell cocaine,

methamphetamine, and fentanyl pills. Campbell also testified that Williams had multiple

rooms at the Relax Inn, but none were registered in his name to prevent law

enforcement from knowing about them. According to Campbell, the drugs—and the

scale to weigh the drugs—found in room 142 all belonged to Williams.

         At the close of evidence,11 the jury found Williams guilty of all three counts and

assessed his punishment at confinement in the Texas Department of Criminal Justice

for a term of 99 years for each count, along with a fine of $20,000 for count one. The

trial court sentenced Williams accordingly, ordering the sentences to run concurrently.

This appeal followed.

         Williams raises seven issues on appeal; we begin with his accomplice-witness

challenge.



          The trial court admitted photographs of this paperwork as State’s exhibits 71
         10

and 72.
          The defense did not present any witnesses during the guilt–innocence phase of
         11

trial.

                                             6
                           II. Accomplice Witness Challenge

      In his seventh issue, Williams complains that the evidence is insufficient to

support his convictions because the accomplice-witness testimony on the element of

possession was uncorroborated. Williams’s argument misapplies the standard of review

for the accomplice-witness rule, and we disagree that the evidence was insufficient to

support the element of possession—with or without Campbell’s testimony.

A. Standard of Review and Applicable Law

      Article 38.14 of the Code of Criminal Procedure sets out the accomplice-witness

rule: “A conviction cannot be had upon the testimony of an accomplice unless

corroborated by other evidence tending to connect the defendant with the offense

committed[,] and the corroboration is not sufficient if it merely shows the commission

of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14.

      When evaluating the sufficiency of corroboration evidence under the

accomplice-witness rule, we “eliminate the accomplice testimony from consideration

and then examine the remaining portions of the record to see if there is any evidence

that tends to connect the accused with the commission of the crime.” Malone v. State,
253 S.W.3d 253, 257
(Tex. Crim. App. 2008). “To meet the requirements of the rule,

the corroborating evidence need not prove the defendant’s guilt beyond a reasonable

doubt by itself.”
Id.
Nor is it necessary for the corroborating evidence to directly link

the accused to the commission of the offense. State v. Ambrose,
487 S.W.3d 587, 593
(Tex. Crim. App. 2016) (citing Cathey v. State,
992 S.W.2d 460, 462
(Tex. Crim. App.

                                           7
1999)). Rather, the direct or circumstantial corroborating evidence must show that

rational jurors could have found that it sufficiently tended to connect the accused to

the offense. Smith v. State,
332 S.W.3d 425, 442
(Tex. Crim. App. 2011); see Joubert v.

State,
235 S.W.3d 729, 731
(Tex. Crim. App. 2007) (“There need be only some non-

accomplice evidence tending to connect the defendant to the crime, not to every

element of the crime.”).

      We judge the sufficiency of nonaccomplice-witness evidence according to the

particular facts and circumstances of each case. Malone,
253 S.W.3d at 257
.

Circumstances that are apparently insignificant may constitute sufficient evidence of

corroboration. Simmons v. State,
205 S.W.3d 65, 73
(Tex. App.—Fort Worth 2006, no

pet.). We do not construe the nonaccomplice-witness evidence de novo but instead

defer to the factfinder’s resolutions. Smith,
332 S.W.3d at 442
.

      Proof that the defendant was at or near the scene of the crime at or about the

time of its commission when coupled with other suspicious circumstances may tend to

connect him to the crime so as to furnish sufficient corroboration to support a

conviction.
Id.
at 443–44. But a defendant’s mere presence at the scene of a crime is

insufficient to corroborate accomplice-witness testimony. Malone,
253 S.W.3d at 257
.

Possession of the fruits of a crime may also be sufficient corroboration. Dillard v. State,
550 S.W.2d 45, 51
(Tex. Crim. App. 1977); Powell v. State,
219 S.W.3d 498, 505
(Tex.

App.—Fort Worth 2007, pet. ref’d); see Keith v. State,
384 S.W.3d 452
, 457–58 (Tex.

App.—Eastland 2012, pet. ref’d).

                                            8
B. Analysis

        Here, Williams attempts to use the accomplice-witness rule to exclude

Campbell’s testimony and to challenge the sufficiency of the evidence only as to the

element of possession. We note that in his brief, Williams acknowledges that the

evidence (excluding Campbell’s testimony12) “may tend to connect [him] generally with

possessing and selling drugs at the hotel” but argues that “it fails to connect him with

the drugs made an essential element of the indictment.”

        The accomplice-witness rule is concerned with the tendency of the

nonaccomplice-witness evidence to connect the accused to the offense as a whole,

rather than to each individual element of the crime. See Joubert,
235 S.W.3d at 731
. Thus,

we agree with Williams that the evidence—without Campbell’s testimony—is sufficient

to demonstrate that he dealt drugs from the Relax Inn at the time of the offenses, but

we disagree that this evidence is insufficient to corroborate his possession of the drugs

made the basis of his convictions under the accomplice-witness rule because it tends to

connect him to the offenses charged. See Malone,
253 S.W.3d at 257
; see also Smith,
332

S.W.3d at 442
.

        The evidence shows that Williams was present at the Relax Inn when the search

warrants were executed and that he was arrested near room 142, the room where the

narcotics were recovered. In fact, the GPS log from Williams’s ankle monitor showed


         The parties do not dispute that Campbell is an accomplice witness under the
        12

rule.

                                            9
that he was frequently at the Relax Inn in the days immediately before his arrest, despite

testimony that the hotel was neither his residence nor his place of employment.

Williams also had two key cards to room 142—despite his purported lack of

connections to the room—one on his person and one in his vehicle.13 The search of

Williams’s vehicle also resulted in multiple stacks of cash, which, according to Sergeant

Soria’s testimony, were consistent with someone who was the “head” of a drug

organization. See Dillard,
550 S.W.2d at 51
; Powell,
219 S.W.3d at 505
; see also Keith, 384

S.W.3d at 457–58.

       Additionally, the State introduced testimony from Kissler that Williams had

attempted to sell her drugs at the hotel and testimony from Sergeant Soria that during

his surveillance of the Relax Inn he witnessed a “hand-to-hand interaction” consistent

with narcotics distribution between Williams and “an unknown individual.” A traffic

stop was then initiated on the unknown individual and resulted in an arrest for

possession of fentanyl. The individual identified a person matching Williams’s

description as the one who provided him with the fentanyl pills.

       Thus, a rational juror could have found that the nonaccomplice-witness evidence

sufficiently tended to connect Williams to the commission of the offenses. See Tex.

Code Crim. Proc. Ann. art. 38.14; Smith,
332 S.W.3d at 442
; Joubert,
235 S.W.3d at 731
.



       Williams’s counsel thoroughly cross-examined Sergeant Soria regarding the
      13

testimony that the key cards found on Williams’s person and in the vehicle were
programmed to open room 142.

                                            10
      We overrule Williams’s seventh issue.14

                              III. Evidentiary Challenges

      Williams’s first five issues challenge several evidentiary rulings by the trial court.

Issues one and two challenge the admission of evidence related to Williams’s pretrial

supervision and his use of a GPS ankle monitor as part of this supervision. Williams

claims the admission of the evidence that he was on pretrial supervision violated Rule

403 (issue one) and Rule 404(b)(1) (issue two). Issue three challenges the admission of


      14
          Even if we presume Williams’s seventh issue is really a general sufficiency
challenge on the element of possession, our conclusion remains the same. In an
evidentiary-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 crime’s
essential elements beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319
,
99
S. Ct. 2781, 2789
(1979); Queeman v. State,
520 S.W.3d 616, 622
(Tex. Crim. App. 2017).
The factfinder alone judges the evidence’s weight and credibility, and we presume the
factfinder resolved any conflicting inferences in favor of the verdict. See Tex. Code
Crim. Proc. Ann. art. 38.04; Martin v. State,
635 S.W.3d 672
, 679 (Tex. Crim. App. 2021);
see also Braughton v. State,
569 S.W.3d 592, 608
(Tex. Crim. App. 2018). Possession is
“actual care, custody, control, or management.”
Tex. Health & Safety Code Ann.
§ 481.002
(38). Possession can be established by direct or circumstantial evidence, and
the evidence must establish that the accused’s connection to the drugs was more than
fortuitous. Evans v. State,
202 S.W.3d 158, 161
(Tex. Crim. App. 2006).

       Considering the nonaccomplice-witness testimony above, as well as Campbell’s
testimony that the narcotics in room 142 belonged to Williams and that he paid for the
room in exchange for her assistance in selling them, we find that it is not outside the
zone of reasonable disagreement for the jury to have found the crime’s essential
elements beyond a reasonable doubt. See Jackson,
443 U.S. at 319
,
99 S. Ct. at 2789
;
Braughton,
569 S.W.3d at 608
. Even considering the affirmative links between Williams
and the narcotics, we find the evidence supports at least six of the fourteen identified
affirmative links: numbers 1, 2, 3, 11, 12, and 13. See Evans, 202 S.W.3d at 161–62 nn.9,
12 (approving a non-exclusive list of fourteen possible factors that may circumstantially
establish the legal sufficiency as to a knowing “possession”). Therefore, if this issue is
a sufficiency challenge, it is likewise overruled.

                                            11
State’s exhibits 71 and 72 under Rule 403. Issue four challenges the admission of

Sergeant Soria’s testimony that Williams could have possessed the drugs even though

he was not in the room when the drugs were seized. Issue five raises a hearsay challenge

to testimony from Sergeant Soria that one or more non-testifying witnesses had

identified Williams as a narcotics dealer and informed police that the drugs had been

moved to room 142 before the search warrant was executed.

       We first address issue two, followed by issues one and three together, then issue

four, and finally issue five.

A. Standard of Review

       We review the trial court’s decision to admit evidence for an abuse of discretion.

Beham v. State,
559 S.W.3d 474, 478
(Tex. Crim. App. 2018). Because the trial court “has

the best view of the evidence,” an appellate court will not disturb a trial court’s ruling

if it falls within the zone in which reasonable minds may differ. Inthalangsy v. State,
634

S.W.3d 749
, 754 (Tex. Crim. App. 2021); Jumper v. State, No. 02-22-00286-CR,
2024 WL

3059060
, at *2 (Tex. App.—Fort Worth June 20, 2024, pet. ref’d) (mem. op., not

designated for publication). However, if the trial court’s decision falls outside the “zone

of reasonable disagreement,” it has abused its discretion. Montgomery v. State,
810 S.W.2d

372, 391
(Tex. Crim. App. 1991) (op. on reh’g).

       If the trial court abused its discretion in admitting the complained-of evidence,

that error is reviewed as nonconstitutional error. Patterson v. State,
508 S.W.3d 432, 440
(Tex. App.—Fort Worth 2015, no pet.) (“The erroneous admission of evidence is

                                            12
nonconstitutional error.” (citing Coble v. State,
330 S.W.3d 253, 280
(Tex. Crim. App.

2010))). Nonconstitutional error will be reversed “only if it affects an appellant’s

substantial rights.” Id.; see Tex. R. App. P. 44.2(b) (“Any other error, defect, irregularity,

or variance that does not affect substantial rights must be disregarded.”).

       An appellant’s substantial rights are affected only if “the error had a substantial

or injurious effect or influence on the jury’s verdict.” Barshaw v. State,
342 S.W.3d 91
,

93–94 (Tex. Crim. App. 2011). “[W]e look to the entire record to determine whether

the erroneously admitted evidence had anything more than a slight effect on the jury’s

verdict.” Traylor v. State,
660 S.W.3d 214
, 222 (Tex. App.—San Antonio 2022, no pet.).

To determine the effect on the verdict, we consider (1) the character of the alleged error

and its connection with other evidence, (2) the nature of the evidence supporting the

verdict, (3) the existence and weight of additional evidence supporting the verdict, and

(4) whether the State emphasized the error. Macedo v. State,
629 S.W.3d 237
, 240 (Tex.

Crim. App. 2021) (citing Gonzalez v. State,
544 S.W.3d 363, 373
(Tex. Crim. App. 2018)).

“[A]n appellate court must disregard the error if the 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.’” Bagheri v. State,
119 S.W.3d 755, 763
(Tex. Crim. App. 2003) (quoting Solomon

v. State,
49 S.W.3d 356, 365
(Tex. Crim. App. 2001)).

B. Rule 404(b)(1)

       In his second issue, Williams complains of the trial court’s admission of

testimony that he was on bond or pretrial supervision over his Rule 404(b) objection.

                                             13
Williams complains that the State failed to offer evidence of any similarities under Rule

404(b)(2) between the offenses charged and that for which he was on bond. The State

claimed at trial that it could present the evidence from Williams’s GPS monitor logs

only through testimony from Officer Phillips, Williams’s pretrial supervision officer,

and contended it was “not for character evidence.” In other words, the evidence that

he was on bond was incidental to establish a different fact of consequence.

       1. Applicable Law

       Character evidence is generally inadmissible because it may “weigh too much

with the jury” and encourage it “to prejudge one with a bad general record and deny [a

defendant] the fair opportunity to defend against a particular charge.” Michelson v. United

States,
335 U.S. 469, 476
,
69 S. Ct. 213, 218
(1948). It is inadmissible “to prove that on

a particular occasion the person acted in accordance with the character or trait.” Tex.

R. Evid. 404(a). Specifically, “[e]vidence of a crime, wrong, or other act is not admissible

to prove a person’s character in order to show that on a particular occasion the person

acted in accordance with the character.” Tex. R. Evid. 404(b)(1). This rule prohibits

admission of evidence to prove a person’s character “from which the trier of fact is

then to infer that the person acted in conformity with that character trait on the

occasion in question.” Johnston v. State,
145 S.W.3d 215, 219
(Tex. Crim. App. 2004).

However, under Rule 404(b)(2), this evidence may be admissible for another purpose,

including “proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Tex. R. Evid. 404(b)(2).

                                            14
      “[T]he propensity to commit crimes is not a material fact in a criminal case[.]”

Segundo v. State,
270 S.W.3d 79
, 87–88 (Tex. Crim. App. 2008). But extraneous

misconduct evidence may “be admissible if [it] is logically relevant to prove

some . . . fact” other than character propensity. Johnston,
145 S.W.3d at 219
. Evidence

of extraneous misconduct must tend to enhance or diminish the probable existence of

a fact of consequence in the case.
Id.
at 219 n.9. Even “a small nudge toward proving a

fact of consequence” satisfies relevancy. Gonzalez,
544 S.W.3d at 370
.

      A fact of consequence may be “either an elemental fact or an evidentiary fact

from which an elemental fact may be inferred.” Henley v. State,
493 S.W.3d 77, 84
(Tex.

Crim. App. 2016). Extraneous misconduct evidence may be admissible to rebut a

defensive theory that negates an element of the charged offense. Johnston,
145 S.W.3d

at 219
; Moses v. State,
105 S.W.3d 622, 626
(Tex. Crim. App. 2003).

      2. Analysis

      During Officer Phillips’s testimony, defense counsel did not make a Rule 404(b)

objection until after Officer Phillips stated that her role was to “supervise defendants

[who] are on pre-trial probation” and on a GPS ankle monitor. Officer Phillips then

confirmed that she supervised Williams, and she identified him in open court.15




      15
        Officer Phillips specifically testified that she was assigned to supervise
Williams’s GPS ankle monitor while he was on pretrial probation before there was any
objection to her testimony under Rule 404(b).

                                          15
       As a result, defense counsel’s belated objection to Officer Phillips’s testimony

failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a); Tex. R. Evid.

103(a)(1)(A); see also Polk v. State,
729 S.W.2d 749, 753
(Tex. Crim. App. 1987) (holding

to preserve error on appeal by way of objection alone, “the objection must come before

the . . . question manifestly calling for objectionable testimony is answered in front of

the factfinder” (emphasis in original)). A timely objection “must be lodged at the earliest

opportunity, or as soon as the ground of objection becomes apparent.” Polk,
729

S.W.2d at 753
(internal quotation marks omitted). Here, it cannot be assumed or

inferred that Williams was unaware of the nature of Officer Phillips’s testimony,

considering the Rule 403 objection defense counsel raised on this same issue before

trial. 16 Thus, the objection was untimely, and Williams’s Rule 404(b) objection was not

preserved for appellate review.

       However, even if this issue had been preserved, the objected-to testimony was

admissible under Rule 404(b)(2) for a purpose other than Williams’s propensity to

engage in criminal activity. See Tex. R. Evid. 404(b)(2). Instead, the evidence that he was

on bond was introduced incidentally, and only to establish that Officer Phillips was

familiar with Williams and was responsible for his GPS monitor records. Williams spent

a great deal of time at the Relax Inn, even though he neither lived nor worked there,

and thus he had—at the very least—the opportunity to engage in the alleged crimes in


       The nature of the running objection made before trial began was restricted to
       16

Rule 403—“more prejudicial than probative.”

                                            16
this case. The testimony that he was on bond was not offered to show that he engaged

in prior extraneous offenses. See
id.
His frequent presence at the location was a fact of

consequence for the alleged possession with intent to deliver charges, and the evidence

of any prior extraneous offenses was a predicate matter to establish Officer Phillips’s

knowledge. See Johnston,
145 S.W.3d at 219
n.9.

      Additionally, one of the defensive theories raised by Williams at trial was that the

State failed to bring sufficient evidence that he possessed the seized drugs and related

paraphernalia. Thus the only means of introducing the information gathered from

Williams’s GPS monitor showing his frequent visits to the Relax Inn was through

Officer Phillips’s testimony and it was admissible to rebut his defensive theory that the

contraband was not his. See
id.
(permitting extraneous offense evidence to rebut a

defensive theory that negates an element of the charged offense).

      Alternatively, even if the evidence was not admissible under Rule 404(b), there is

nothing to support that the evidence that Williams was on bond had any injurious effect

on the verdict. See Bagheri,
119 S.W.3d at 763
. The evidence that Williams was on bond

during the events of this case was mentioned only four times in front of the jury:

(1) during Officer Phillips’s testimony about her supervision of Williams’s GPS monitor

while he was on bond; (2) during Sergeant Soria’s testimony about his knowledge of

Williams’s GPS monitor as a condition of his bond; (3) during Investigator Holland’s

testimony about the Tarrant County Community Supervision and Corrections

Department (CSCD) paperwork in State’s exhibits 71 and 72; and (4) during the State’s

                                           17
closing argument that the Relax Inn location seen frequently on the GPS logs was not

Williams’s home address according to his bond. These instances did not spend an

inordinate amount of time on Williams’s status as a probationer, nor was it emphasized

to the jury. Macedo, 629 S.W.3d at 240.

       Further, the evidence was only incidentally introduced to present Williams’s GPS

monitor logs. See id.; Gonzalez,
544 S.W.3d at 370
; Johnston,
145 S.W.3d at 219
. There

was much more persuasive evidence to support the verdict than the evidence that he

was on bond: his presence at the location, his access to the room with the contraband,

his offering to sell drugs to Kissler, his selling drugs to an individual that was witnessed

by Sergeant Soria, and his large sums of money hidden in his vehicle. See Macedo, 629

S.W.3d at 240. Thus, the knowledge that Williams was on bond did not have any

substantial or injurious effect on the jury’s verdict. See id.; Barshaw, 342 S.W.3d at 93–

94.

       Because the issue was unpreserved and because the evidence would have been

admissible under Rule 404(b)(2) and was not substantially injurious or influential on the

verdict, we overrule Williams’s second issue.

C. Rule 403

       Williams makes two complaints about the admission of evidence in violation of

Rule 403. Issue one concerns the testimony that he was on bond for another offense at

the time of his arrest in this case. Issue three concerns the admission of State’s exhibits



                                            18
71 and 72—CSCD paperwork found in Williams’s vehicle that documented his release

on pretrial supervision and the requisite electronic GPS monitoring.

      1. Applicable Law

      Under Rule 403, a trial court “may exclude relevant evidence if its probative value

is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” Tex. R. Evid. 403. “Unfair prejudice refers to the

evidence’s tendency to tempt the jury into finding guilt on grounds apart from proof of

the offense charged.” Perkins v. State,
664 S.W.3d 209
, 216 (Tex. Crim. App. 2022)

(internal quotation marks omitted).

      Following a Rule 403 objection, the trial court has a nondiscretionary obligation

to weigh the probative value of the evidence against the unfair prejudice of its

admission. Sanders v. State,
255 S.W.3d 754, 760
(Tex. App.—Fort Worth 2008, pet.

ref’d) (citing Montgomery,
810 S.W.2d at 389
). When the trial court overrules a Rule 403

objection, we presume the trial court applied a Rule 403 balancing test and determined

the evidence was admissible.
Id.
The balancing test for a Rule 403 objection in the context of extraneous conduct

evidence17 includes four factors: (1) how compelling the extraneous offense evidence is



      17
        The pretrial discussion and objections included the State’s acknowledgement
of the applicability of Rule 404(b) to the evidence that Williams was on bond as
potential evidence of extraneous acts or offenses.

                                          19
in making a fact of consequence more or less probable; (2) the potential the extraneous

offense evidence has to impress the jury in an irrational, yet indelible, way; (3) the time

needed to develop the evidence, distracting the jury from the consideration of the

indicted offense; and (4) the force of the proponent’s need for the evidence to prove a

fact of consequence. Irsan v. State,
708 S.W.3d 584
, 617 (Tex. Crim. App. 2025) (citing

De La Paz v. State,
279 S.W.3d 336
, 348–49 (Tex. Crim. App. 2009)), petition for cert. filed,

____ (U.S. Sept. 17, 2025) (No. 25-5665).

       2. Analysis

       Prior to the start of trial, Williams’s counsel objected to the State’s request to

discuss that Williams was on bond when he was arrested in the instant case. See Tex. R.

Evid. 103(a)(1) (a party preserves a claim of error if the party, on the record, timely

objects to the admission of the evidence). Williams’s counsel argued that any mention

of Williams being on bond for a prior arrest—not the fact that he was wearing a GPS

monitor—was more prejudicial than probative. The State responded that it needed to

call a pretrial services officer as a witness in order to get into the GPS evidence in the

case and that it would be inevitable that the jury would discover Williams was being

supervised based on her job description.

       We agree with the trial court that the testimony that he was on bond was a

necessary byproduct of the proper introduction of the GPS monitoring logs that

showed he was frequently at the Relax Inn despite his not living or working there, and

Officer Phillips was the only qualified witness to verify these records. See Montoya v.

                                             20
State,
832 S.W.2d 138, 141
(Tex. App.—Fort Worth 1992, no pet.) (holding the Texas

Rules of Evidence provide that records can be shown by the custodian or another

qualified witness). Further, all four Irsan factors weigh in favor of the admission of the

evidence as more probative than prejudicial.

       First, the State aimed to establish that Williams’s presence at the Relax Inn was

due to his involvement with the distribution—and possession—of the controlled

substances seized. The testimony that Williams was on pretrial supervision was only

used to lay a predicate for the admission of the GPS logs, showing that he spent time

at the Relax Inn, making it more probable that he was part of the drug operation. See

Irsan, 708 S.W.3d at 617. Second, the record does not support—and Williams’s appellate

brief does not point to any evidence—that the testimony influenced the jury in any

manner, irrational or otherwise. See id. Third, the State did not spend an inordinate

amount of time on Williams’s pretrial supervision terms. See id. The testimony from

Officer Phillips that Williams was on bond amounted to less than five pages of the 196-

page reporter’s record of the guilt–innocence phase of trial.18 See id.

       Thus, nothing in the record indicates that a decision was made on an improper

basis or that the testimony that Williams was on bond distracted the jury from the main

issues. See id. As a result, the trial court’s decision to allow this testimony was not outside

the zone of reasonable disagreement. See Montgomery, 810 S.W.3d at 391.


       18
         Further, the State did not have another witness to properly present the GPS
logs for admission and to showcase the frequency of Williams’s visits to the Relax Inn.

                                              21
      We overrule Williams’s first issue.

      In his third issue, Williams complains that the admission of State’s exhibits 71

and 72 was more prejudicial than probative. These exhibits are photographs of CSCD

paperwork bearing Williams’s name that provides (71) information about his next

appointment with Officer Phillips and (72) details related to his assigned GPS

monitoring device.19 Williams objected to the admission of both exhibits when they

were offered during his trial. See Tex. R. Evid. 103(a)(1). The trial court overruled the

objection, and the exhibits were published to the jury. The entire testimony about these

two exhibits was as follows:

      Q. What are we looking at in State’s Exhibit No. 71?
      A. This is community supervision paperwork that we located inside the
      glove box as well, with Brandon Williams’s name.
      Q. And that was with the cash?
      A. Yes, sir.



      19
        Although Williams contends on appeal that the evidence was not relevant, he
did not make this argument to the trial court. See Lovill v. State,
319 S.W.3d 687
, 691–92
(Tex. Crim. App. 2009) (“A complaint will not be preserved if the legal basis of the
complaint raised on appeal varies from the complaint made at trial.”). Additionally,
Williams did not brief the issue of relevance. As a result, we decline to address this
complaint. See Tex. R. App. P. 38.1(i).

       Also in issue three, Williams alleges that the harm could not have been cured by
the erroneous limiting instruction given. But Williams does not point to which part of
the instruction was erroneous, nor does he provide any legal support for this assertion.
We also note that he did not request any limiting instruction related to these exhibits
during trial. See Tex. R. App. P. 33.1. We therefore likewise decline to address this
complaint on appeal. See id.; Tex. R. App. P. 38.1(i).

                                            22
       Q. What are we looking at in State’s Exhibit No. 72?
       A. Just more paperwork which has Mr. Williams’s name.
Considering the same Irsan factors in the context of an extraneous conduct Rule 403

objection, the complained-of exhibits make it more probable that the stacks of cash—

folded into Williams’s paperwork—also belonged to him,20 thereby providing

circumstantial evidence linking him to the possession of the controlled substances with

intent to deliver, as alleged in the indictment. 21 See Irsan, 708 S.W.3d at 617.

       Additionally, the CSCD paperwork reflecting Williams’s upcoming appointment

with Officer Phillips and the page explaining the GPS electronic monitoring program

have no more risk of irrational impression on the jury than testimony of the same from

Officer Phillips. See id. The paperwork merely lists the offense as “unknown,” again

posing little risk of any irrational, indelible influence upon the jury’s determinations.

The State likewise took very little time to develop this testimony—doing nothing more

than identifying the exhibits. Finally, these papers—found in the console of Williams’s

vehicle and bearing his name—substantially supported the State’s claim that the vehicle,

the stacks of cash within, and the key card for the room containing the controlled

substances were all his. See id.



       State’s exhibit 68 depicts a stack of cash folded into—what appears to be—the
       20

same GPS monitoring instructions found in exhibit 72, located in the console of
Williams’s vehicle. This exhibit was admitted without objection.
       21
         When asked if “drug dealers usually keep money and drugs together,” Sergeant
Soria testified that “they do their best to keep everything separate.”

                                             23
      Like the complained-of testimony from Officer Phillips, nothing in the record

suggests that the admission of these exhibits was outside the zone of reasonable

disagreement. See Montgomery, 810 S.W.3d at 391. Further, the record supports that

neither the testimony nor the exhibits were more prejudicial than probative. See Tex. R.

Evid. 403.

      We overrule Williams’s third issue.

D. Rule 704

      In Williams’s fourth issue, he claims the trial court abused its discretion in

admitting Sergeant Soria’s testimony that Williams could still possess the drugs seized

in this case if he was not in the room at the time of the seizure. Williams objected to

the testimony on the ground that it called for an impermissible legal conclusion—and

he argues the same on appeal.22

      1. Applicable Law

      The opinion of a nonexpert witness is not admissible unless the opinion is

(a) rationally based on the perception of the witness and (b) helpful to a clear

understanding of the witness’s testimony or the determination of a fact in issue. Tex.

R. Evid. 701. And generally speaking, “[a]n opinion is not objectionable just because it

embraces an ultimate issue.” Tex. R. Evid. 704. However, an opinion is inadmissible if



      22
        Williams specifically avers that his objection to this testimony was not made
under Rule 704. Rule 704 is instructive, however, in our analysis of Sergeant Soria’s
testimony.

                                            24
it is a legal conclusion or amounts to little more than choosing sides as to how the case

should be ultimately decided. Gross v. State,
730 S.W.2d 104, 106
(Tex. App.—Texarkana

1987, no pet.). The expression of guilt or innocence in any case is a conclusion to be

reached by the jury based upon the instruction given to them in the trial court’s charge

coupled with the evidence admitted by the judge throughout the course of the trial.

Boyde v. State,
513 S.W.2d 588, 590
(Tex. Crim. App. 1974). No witness is competent to

voice an opinion as to guilt or innocence.
Id.
When a witness who is capable of being qualified as an expert testifies regarding

events that he or she personally perceived, the evidence may be admissible as both Rule

701 opinion testimony and Rule 702 expert testimony. Osbourn v. State,
92 S.W.3d 531,

536
(Tex. Crim. App. 2002). Police officers, although possessing both training and

experience, are not precluded from offering lay testimony based on their personal

observations. Id.; Solomon,
49 S.W.3d at 364
(holding lay testimony is permitted when

the witness has personal knowledge of the events). An officer may also testify regarding

his inspection of the evidence. Mohler v. State, No. 02-15-00024-CR,
2016 WL 5442066
,

at *6 (Tex. App.—Fort Worth Sept. 29, 2016, pet. ref’d) (mem. op., not designated for

publication) (citing Ex parte Nailor,
149 S.W.3d 125
, 134–35 (Tex. Crim. App. 2004)

(holding counsel not ineffective for not objecting to officer’s opinion testimony that

defendant had not been attacked); Solomon,
49 S.W.3d at 364
(holding admissible

witness’s testimony that defendant was responsible for robbery); and Williams v. State,
417 S.W.3d 162, 182
(Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (holding

                                           25
admissible officer’s testimony that the crime scene suggested “something sexual” and

that it did not appear to be a “normal sexual assault”)).

       2. Analysis

       Here, the prosecutor first asked Sergeant Soria whether Williams “could . . . still

have possession and control of [the] drugs” if he was not in the room where the drugs

were seized. Defense counsel objected to speculation and to improper legal conclusion.

See Tex. R. Evid. 103(a)(1). Both were overruled and Sergeant Soria answered,

“Absolutely.” A bench conference and hearing outside the presence of the jury then

occurred, and when the jury returned, the prosecutor asked Sergeant Soria to repeat his

response. Sergeant Soria stated: “Again, based off my previous knowledge of [Williams]

at the location, [his] being observed having interactions at room 142, [his] having the

keycard for room 142 in his pocket, and . . . Jessica Campbell[’s] . . . identifi[cation] [of

Williams] as the owner of the drugs.”

       First, the question asked Sergeant Soria if Williams could have possession and

control if he was not physically in the room when the drugs were seized, not if he did

have possession and control at that time. Second, the extended response from Sergeant

Soria explained what evidence could support the element of possession.

       It is permissible for an officer to explain the evidence. See Mohler,
2016 WL

5442066
, at *6. Sergeant Soria’s testimony was admissible as lay testimony because it

was rationally based upon his perception, assisted by his experience and training, and

was helpful to a determination of the facts at issue—if possession of drugs is possible

                                             26
when a defendant is not holding the drugs in his hands at the time of his arrest and

what evidence might be helpful in making that determination. See Ortiz v. State, No. 2-

03-259-CR,
2005 WL 1994174
, at *6 (Tex. App.—Fort Worth Aug. 18, 2005, pet. ref’d)

(mem. op., not designated for publication) (holding officer’s testimony was admissible

as lay testimony because it was helpful to a determination of a fact in question, i.e., the

defendant’s intent); see also Reece v. State,
878 S.W.2d 320, 325
(Tex. App.—Houston [1st

Dist.] 1994, pet. ref’d) (holding that officer could testify based upon his training and

experience that the defendant’s actions were consistent with those of someone selling

drugs); Williams v. State,
826 S.W.2d 783, 785
(Tex. App.—Houston [14th Dist.] 1992,

pet. ref’d) (holding that officer could give opinion as lay witness and expert witness that

he interpreted defendant’s actions to be a drug transaction).

       Moreover, in light of the evidence that Williams tried to sell Kissler drugs, sold

fentanyl during a “hand-to-hand” transaction, possessed two key cards to the room

where the drugs and related contraband were found, paid for the room where the drugs

were found, used Campbell to help bag and sell the drugs, and had stacks of cash in his

vehicle, error, if any, was harmless here. See Tex. R. App. P. 44.2(b); see also Solomon,
49

S.W.3d at 365
(holding substantial rights are not affected by the erroneous admission

of evidence if there is fair assurance the error did not influence the jury or had but a

slight effect).

       We overrule Williams’s fourth issue.



                                            27
E. Hearsay

       In his fifth issue, Williams complains that Sergeant Soria should not have been

permitted to testify to information gained during the investigation that Williams was a

narcotics distributor at the Relax Inn and that the drugs had been moved to room 142

because the testimony amounted to “back door hearsay.”

       1. Applicable Law

       Under the Texas Rules of Evidence, hearsay is an out-of-court statement offered

to prove the truth of the matter asserted. Tex. R. Evid. 801(d); see Guidry v. State,
9

S.W.3d 133, 152
(Tex. Crim. App. 1999) (“[A] statement which is not offered to prove

the truth of the matter asserted, but is offered for some other reason, is not hearsay.”);

Hernandez v. State,
585 S.W.3d 537
, 554 (Tex. App.—San Antonio 2019, pet. ref’d)

(holding generally evidence that can assist the jury by providing context for a police

officer’s actions during an investigation is not considered hearsay); Sosa v. State, No. 05-

11-01294-CR,
2012 WL 5936295
, at *3 (Tex. App.—Dallas Nov. 28, 2012, no pet.)

(mem. op., not designated for publication) (“[I]f a statement is offered to show the

effect on the listener, rather than for the truth of the matter asserted, then the statement

is not hearsay.” (first citing Young v. State,
10 S.W.3d 705, 712
(Tex. App.—Texarkana

1999, pet. ref’d); and then citing In re Bexar Cnty. Crim. Dist. Att’y’s Off.,
224 S.W.3d 182,

189
(Tex. 2007) (orig. proceeding))).

       Within the context of the rule, a “statement” is “a person’s oral or written verbal

expression, or nonverbal conduct that a person intended as a substitute for verbal

                                             28
expression.” Tex. R. Evid. 801(a). A “matter asserted” is any matter that (1) is explicitly

asserted and (2) is implied by a statement “if the probative value of the statement as

offered flows from the declarant’s belief about the matter.” Tex. R. Evid. 801(c).

      2. Analysis

      Here, both the challenged statements were offered to give context to Sergeant

Soria’s investigation to prepare a narcotics search warrant and are not hearsay. See

Hernandez, 585 S.W.3d at 554.

      Sergeant Soria testified that he received information from someone “frequent in

the . . . hotel scene in west Fort Worth” who identified Williams as a narcotics

distributor at the hotel and that he received a tip that the drugs had been moved to

room 142. This testimony was not offered to prove that Williams possessed the drugs

that may have been in room 142 of the Relax Inn, or even that he intended to sell these

drugs, but to establish what statements Sergeant Soria relied on in preparing the search

warrant. See Davis v. State,
169 S.W.3d 673, 676
(Tex. App.—Fort Worth 2005, no pet.)

(mem. op.) (“[A] police officer may testify about anonymous tips received for the

purpose of showing why the investigation focused on a particular defendant.” (citing

Cano v. State,
3 S.W.3d 99, 110
(Tex. App.—Corpus Christi–Edinburg 1999, pet. ref’d);

and Levario v. State,
964 S.W.2d 290, 296
(Tex. App.—El Paso 1997, no pet.)). This

testimony does little more than showcase the development of Sergeant Soria’s

investigation in preparing the search warrants and was therefore not hearsay.



                                            29
       But even if we presume the statements were offered for the truth of the matter

and are “back door hearsay,” we hold any error harmless under Rule 44.2(b). See Tex.

R. App. P. 44.2(b). The evidence that Williams frequently visited the Relax Inn, that he

had two key cards to room 142 where the drugs were discovered, that he had several

stacks of cash, that he had attempted to sell Kissler drugs, and that Sergeant Soria saw

Williams sell fentanyl in a “hand-to-hand” transaction all suggest that any error had no

influence, or at most a slight effect, on the verdict and was harmless. See Nguyen v. State,
693 S.W.3d 732
, 740 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (citing Johnson v.

State,
967 S.W.2d 410, 417
(Tex. Crim. App. 1998)).

       We overrule Williams’s fifth issue.

                            IV. Cumulative Error Challenge

       In his sixth issue, Williams claims that he was denied a fair trial because of the

cumulative effect of the alleged evidentiary errors in issues one through five. 23

A. Applicable Law

       The doctrine of cumulative error provides that the cumulative effect of multiple

errors can, in the aggregate, constitute reversible error, even though no single instance

of error would. Chamberlain v. State,
998 S.W.2d 230, 238
(Tex. Crim. App. 1999); Priddy

v. State, No. 02-13-00586-CR,
2014 WL 5307180
, at *1 (Tex. App.—Fort Worth Oct.


       23
         Williams’s brief takes the position “that the errors set out in issues one through
six are in isolation sufficient to require reversal of the convictions.” As the cumulative
error issue is raised in issue six, we read this to mean that the cumulative error argument
refers only to the first five issues raised.

                                             30
16, 2014, no pet.) (mem. op., not designated for publication). However, for the doctrine

to apply, the alleged errors complained of must actually constitute error. Gamboa v. State,
296 S.W.3d 574, 585
(Tex. Crim. App. 2009); Priddy,
2014 WL 5307180
, at *1. “The

doctrine of cumulative error . . . rarely results in reversal, and is predicated upon

meeting the standard of reversible error.” Vasquez v. State, No. 2-04-214-CR,
2006 WL

133462
, at *5 (Tex. App.—Fort Worth Jan. 19, 2006, no pet.) (mem. op., not designated

for publication).

B. Analysis

       Here, as we have explained, the trial court did not abuse its discretion by

admitting the complained-of evidence during the guilt–innocence phase of Williams’s

trial. We have likewise determined that, even if the trial court did abuse its discretion by

admitting any of the challenged evidence, Williams was not harmed by such admission.

Thus, as set out above, there are no errors in this case to cumulate. See Jenkins v. State,
493 S.W.3d 583, 613
(Tex. Crim. App. 2016) (overruling appellant’s cumulative-error

complaint when he failed to show that the trial court erred “with respect to any point

of error”); Bell v. State, No. 02-18-00244-CR,
2019 WL 1967538
, at *9 (Tex. App.—Fort

Worth May 2, 2019, pet. ref’d) (mem. op., not designated for publication) (“Bell argues

that even if each of his previous points do not constitute harm sufficient for reversal,

their cumulative effect does, undermining the fundamental fairness of the proceedings.

But his individual points either do not demonstrate reversible error or do not show that

he was harmed. Therefore, there is no error to cumulate.”); Baker v. State, No. 03-18-

                                            31
00240-CR,
2019 WL 1646260
, at *7 (Tex. App.—Austin Apr. 17, 2019, no pet.) (mem.

op., not designated for publication) (“Here, Baker’s cumulative-error contention lacks

merit because we have concluded, as to his preserved appellate issues, that one

complained-of error was harmless and that there was no error as to the remaining

complaints.”).

      We overrule Williams’s sixth issue.

                                   V. Conclusion

      Having overruled all seven of Williams’s issues, we affirm the trial court’s

judgments.

                                                    /s/ Wade Birdwell

                                                    Wade Birdwell
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: October 23, 2025




                                            32