Kevin Bradley Barnes v. the State of Texas

Opinion issued July 15, 2025




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                          ————————————
                               NO. 01-23-00525-CR
                         ———————————
                  KEVIN BRADLEY BARNES, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 56th District Court
                        Galveston County, Texas
                    Trial Court Case No. 22-CR-1076


                        MEMORANDUM OPINION

     Kevin Bradley Barnes appeals his conviction for possession with the intent

to deliver more than 200 but less than 400 grams of methamphetamine. See TEX.

HEALTH & SAFETY CODE § 481.112(a), (e). He was sentenced to 18 years’
imprisonment. On appeal, he argues that the evidence was insufficient to support

his conviction and that the court erred by admitting certain evidence. We affirm.

                                     Background

      Following a traffic stop in Santa Fe, Texas, Barnes was arrested and charged

with possession with intent to deliver between 200 and 400 grams of

methamphetamine. He proceeded to a jury trial. At trial, Officer J. Danesi of the

Santa Fe Police Department testified that he initiated the traffic stop after

observing Barnes’s truck “mov[ing] over to oncoming traffic for no apparent

reason.” He stopped the truck, which was pulling an empty flatbed trailer

displaying an Alaska license plate, because it was failing to maintain a single

marked lane. Officer Danesi knew the area had lots of bars and testified that in his

tenure, he had made several arrests in the area for driving while intoxicated

(“DWI”).

      When Officer Danesi approached the vehicle, he checked Barnes and the

female passenger’s identification.1 Both had active warrants for their arrest, so he

asked them to get out of the truck while dispatch verified the warrants. Officer

Danesi testified that the passenger was Ashley Woodard and that his partner stood

with her while he attended to Barnes.




1
      Officer Danesi identified Barnes in court as the driver he pulled over.
                                            2
      Officer Danesi detained Barnes, patting him down as part of the detention

while waiting for confirmation of the outstanding warrants from dispatch. Barnes

consented to a search of his pockets. Officer Danesi found about $1,400 in cash

and a baggie containing what he thought was crystal methamphetamine in the

pocket of the shorts Barnes was wearing. Officer Danesi testified that Barnes

started “freaking out a little bit” when the drugs were found.

      Officer Danesi then searched Barnes’s four-door pickup truck. In the

driver’s side door, Officer Danesi found a bottle of fake urine. Under the front

passenger seat, he found a broken glass pipe used for smoking methamphetamine.

He also found a black backpack on the floorboard of the back seat. Inside the

backpack,    he   found   bags    containing   what    he   believed   was   crystal

methamphetamines of different colors. The drugs were stored in plastic bags like

the bag recovered from Barnes’s pocket. He also found a scale with drug residue

on it. Officer Danesi suspected that Barnes sold methamphetamine based on the

cash in Barnes’s pocket, the large amount of methamphetamine, and the scale in

the backpack. Officer Danesi asked Barnes where he worked, and Barnes

responded that he worked as an oil field inspector. The backpack had a logo that

said “S&B” and “Frac Texas.” Officer Danesi knew that S&B was a petrochemical

company. Officer Danesi testified that Woodard told him that she did not work.




                                          3
      Officer Danesi testified that Barnes said that he had just left the hospital,

where he was treated for a leg injury. As a precaution, Officer Danesi called for

emergency medical services (“EMS”) to examine Barnes. EMS arrived a few

minutes later. Barnes also told Officer Danesi that he had just put on the shorts

where the methamphetamine was found.

      The court admitted into evidence Officer Danesi’s dashboard camera video

and his body camera video showing the entire encounter with Barnes and

Woodard.

      A forensic scientist with the Texas Department of Public Safety Crime

Laboratory testified that she weighed the methamphetamine from the backpack.

She testified that the gross weight of the bags with packaging was 305.58 grams.

She realized the backpack did not contain more than 400 grams of

methamphetamine, which would have resulted in a higher criminal charge. Once

she found more than 200 grams of drugs, there was no reason for her to test other

evidence because it would not bring a higher charge.

      An investigator from the Galveston County District Attorney’s office

testified that she used law enforcement databases to investigate Barnes. She

entered his name, date of birth, and social security number. The database then

returned emails and phone numbers associated with those identifiers. The court

admitted into evidence results from her database searches. Over objection, the


                                        4
court admitted into evidence search results from two databases. The database

recovered that Barnes’s name, date of birth, or social security number was linked

to S.B. Management Inc. and S.B. Engineers Construction Limited. The

investigator testified that S.B. Management was one of Barnes’s last employers.

The search also yielded that Barnes had an email address that included the domain

name “sbec.com.” The investigator then testified that S.B. or S.B.E.C. was an

“engineering chemical plant.”

      The jury found Barnes guilty and assessed punishment at 18 years’

imprisonment.

                           Sufficiency of the Evidence

      In his first issue, Barnes argues that the evidence was insufficient to prove

that he knowingly possessed the backpack containing methamphetamine. We

disagree.

A.    Standard of Review

      We review a challenge to the sufficiency of the evidence under the standard

set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, “we

consider all of the evidence in the light most favorable to the verdict and determine

whether, based on that evidence and reasonable inferences therefrom, a rational

juror could have found the essential elements of the crime beyond a reasonable


                                          5
doubt.” Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (internal

quotation and citation omitted).

      In conducting our review, we defer to the factfinder to “fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Id. (quoting Jackson, 443 U.S. at 318–19). The

jury, as the sole judge of the facts and credibility of the witnesses, may choose to

believe or disbelieve any witness or portion of their testimony. Metcalf v. State,

597 S.W.3d 847, 855 ((Tex. Crim. App. 2020). We presume that the jury resolved

any conflicts in favor of the verdict and defer to that determination. Merritt v.

State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012).

      “The key question is whether the evidence presented actually supports a

conclusion that the defendant committed the crime that was charged.” Morgan v.

State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (internal quotations omitted).

And our role on appeal is “restricted to guarding against the rare occurrence when

a [factfinder] does not act rationally.” Id. (internal quotations omitted). Further, in

our review, “circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). Evidence is sufficient if the inferences necessary to establish guilt are

reasonable based on the cumulative force of all evidence considered in the light


                                          6
most favorable to the verdict. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012).

B.    Applicable Law

      The State was required to prove Barnes knowingly possessed with intent to

deliver a controlled substance listed in penalty group 1, which includes

methamphetamine. See TEX. HEALTH & SAFETY CODE § 481.112(a), (e), see also

id. § 481.102(6) (identifying methamphetamine as member of penalty group 1). To

support a defendant’s conviction, the evidence must show that the defendant

“knowingly possessed” the contraband, which requires proof that the defendant

(1) exercised “actual care, custody, control, or management” over the substance

and (2) knew the substance was contraband. See id. § 481.002(38) (definition of

possession); Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011);

Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). “Deliver” means to

transfer, actually or constructively, to another a controlled substance, including an

offer to sell a controlled substance. TEX. HEALTH & SAFETY CODE § 481.002(8).

The State need not show exclusive possession of the contraband to support a

conviction. Robinson v. State, 174 S.W.3d 320, 325 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d). Control over contraband may be exercised by more than

one person. Id.




                                         7
C.    Analysis

      On appeal, Barnes’s challenges the sufficiency of the evidence to prove he

possessed the methamphetamine.2 Barnes argues that the evidence is insufficient

due to “a lack of affirmative link as to the drugs in the knapsack.” App. Br. at 24.

He argues that his passenger, Woodard, drove his truck to pick him up from the

hospital before he was pulled over and that she had sole possession of everything

in his truck, including the backpack with methamphetamine.

      Because Barnes was not in exclusive possession of the place where the

controlled substance was found, we cannot conclude that he had knowledge of and

control over the contraband unless the State established an “affirmative link”

between Barnes and the contraband. See Poindexter v. State, 153 S.W.3d 402, 406

(Tex. Crim. App. 2005), overruled in part on other grounds by Robinson v. State,

466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015); Robinson, 174 S.W.3d at

325. An affirmative link “generates a reasonable inference that the accused knew

of the contraband’s existence and exercised control over it.” Olivarez v. State, 171

S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Affirmative

links “are established by the totality of the circumstances.” Beall v. State, 237

S.W.3d 841, 850 (Tex. App.—Fort Worth 2007, no pet.). The elements of

possession may be proven through direct or circumstantial evidence, although the

2
      Barnes does not challenge the sufficiency of the evidence to prove intent to deliver
      the drugs.
                                           8
evidence must establish that the accused’s connection with the substance was more

than fortuitous. Evans, 202 S.W.3d at 161–62; Poindexter, 153 S.W.3d at 405–06.

Mere presence in the same place as the controlled substance is not enough to

justify a finding of possession. Evans, 202 S.W.3d at 162. But presence or

proximity, when combined with other evidence, either direct or circumstantial (e.g.

“affirmative links”), can establish possession. Id.

      The Court of Criminal Appeals has adopted a “non-exclusive list of fourteen

factors” that “may indicate a link connecting the defendant to the knowing

possession of contraband.” Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App.

2016). Those factors are: (1) the defendant’s presence when a search is conducted;

(2) whether the contraband was in plain view; (3) the defendant’s proximity to and

the accessibility of the contraband; (4) whether the defendant was under the

influence of narcotics when arrested; (5) whether the defendant possessed other

contraband when arrested; (6) whether the defendant made incriminating

statements when arrested; (7) whether the defendant attempted to flee; (8) whether

the defendant made furtive gestures; (9) whether there was an odor of contraband;

(10) whether other contraband or drug paraphernalia were present; (11) whether

the defendant owned or had the right to possess the place where the drugs were

found; (12) whether the place where the drugs were found was enclosed; (13)

whether the defendant was found with a large amount of cash; and (14) whether


                                          9
the conduct of the defendant indicated a consciousness of guilt. Id. (quoting Evans,

202 S.W.3d at 162 n.12). “It is . . . not the number of links that is dispositive, but

rather the logical force of all of the evidence, direct and circumstantial.” Evans,

202 S.W.3d at 162; see also Robinson, 174 S.W.3d at 326 (“[T]he number of

factors actually supported by the evidence is not as important as the ‘logical force’

they collectively create to prove that a crime has been committed.”). While the

factors are intended to guide the court’s analysis, the ultimate inquiry is whether,

“[b]ased on the combined and cumulative force of the evidence and any reasonable

inferences therefrom,” the jury was “rationally justified in finding guilt beyond a

reasonable doubt.” Tate, S.W.3d at 415 (citing Jackson, 443 U.S. at 318–19).

      Barnes contends that Woodard drove his truck to pick him up from the

hospital and alleges that she should be solely responsible for the contents of the

truck including the backpack. The record reflects that Barnes was driving his truck

when the search was conducted, and the State need not prove that Barnes had sole

possession of the contraband. Robinson, 174 S.W.3d at 325 (stating more than one

person may have control of contraband). Although Barnes identifies types of

affirmative links on which the State presented no evidence, as well as evidence that

weighs in his favor, “[i]t is the logical force of the circumstantial evidence, not the

number of links, that supports a jury’s verdict.” See Evans, 202 S.W.3d at 166.




                                          10
      Reviewing the record, the direct and circumstantial evidence establishes that

Barnes knowingly possessed the methamphetamine. Barnes was present when the

methamphetamine was recovered from the backpack in his truck. He also owned

and possessed the truck. Even though the methamphetamine was found in the rear

passenger area, Barnes, as driver of the truck, was near the drugs. Before

discovering the backpack, Officer Danesi found a significant amount of

methamphetamine in Barnes’s pocket. Barnes “freaked out” when he realized the

officer had found methamphetamine in his shorts. Barnes claimed that he had just

put the shorts on, implying he did not know the methamphetamine was in the

pocket, and that he had just come from the hospital. The methamphetamine found

in Barnes’s pocket was packaged similarly to the large amount of

methamphetamine found in the backpack.

      Officer Danesi recovered other drug paraphernalia from the truck, including

a bottle of fake urine from the driver’s side area and a broken pipe under the

passenger seat. He also found a digital scale with drug residue on it in the

backpack. When patting Barnes down, Officer Danesi found a large amount of

cash in Barnes’s pocket. See Tate, 500 S.W.3d at 414 (identifying as affirmative

links defendant’s presence when search conducted, defendant’s proximity to and

accessibility of contraband, possession of other contraband or narcotics,

incriminating statements and indicia of guilt, defendant’s possession of large


                                        11
amount of cash, whether drugs were found in enclosed space, and whether

defendant owned or had right to possess place where drugs found).

      Barnes cites to Harris v. State, in which the San Antonio court of appeals

held that the evidence of affirmative links tying a defendant to a firearm inside a

bag in a car was “nothing more than speculation.” 532 S.W.3d 524, 531 (Tex.

App.—San Antonio 2017, no pet.). The defendant was not the driver or owner of

the vehicle where the firearm was found. Id. The bag was closed and found on the

passenger side near the defendant’s feet. The court reasoned that “nothing in the

bag, on the bag, or in the vehicle” connected the defendant to the firearm. Id. We

agree with the State that the facts in Harris are dissimilar to the facts here. Unlike

in Harris, Barnes was the driver and owner of the truck, and he did not remain

calm when confronted. Barnes had the same drugs in similar packaging in his

pocket and in larger quantity in the backpack. Barnes had a large amount of cash,

and the backpack bore a logo of an oil services company, the same industry Barnes

told the officer he worked in. The officer also found fake urine in the driver’s side

door. To the extent that Barnes argues that the absence of some affirmative links or

evidence, such as DNA evidence, proves his innocence, the “absence of various

affirmative links does not constitute evidence of innocence to be weighed against

the affirmative links present.” James v. State, 264 S.W.3d 215, 219 (Tex. App.—

Houston [1st Dist.] 2008, pet. ref’d). The number of factors present is not as


                                         12
important as the logical force or the degree to which the factors, alone or in

combination, tend to affirmatively link the defendant to the contraband. See Evans,

202 S.W.3d at 162.

      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational factfinder could have found beyond a reasonable doubt that Barnes

knowingly or intentionally possessed the methamphetamine. We hold that the

evidence is legally sufficient to support the conviction.

      We overrule Barnes’s first issue.

                             Admissibility of Evidence

      In his second and third issues, Barnes contends that the trial court abused its

discretion by admitting two pieces of evidence because they were hearsay and

because they were substantially more prejudicial than probative.

A.    Standard of Review

      We review a trial court’s ruling on the admissibility of evidence for an abuse

of discretion, and we will not reverse if it is within the zone of reasonable

disagreement. McDonnell v. State, 674 S.W.3d 694, 701 (Tex. App.—Houston [1st

Dist.] 2023, no pet.) (citing Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim.

App. 2011)).




                                          13
B.    Relevant Facts

      Barnes argues that the trial court abused its discretion by admitting State’s

exhibits 6 and 7 because they were unfairly prejudicial and because they were

hearsay. The exhibits showed information found as the result of online searches

conducted by an investigator with the Galveston County Criminal District

Attorney’s office. The investigator testified that she used two databases to

investigate Barnes’s employment history. The investigator testified that she was

qualified to access the databases and that they were reliable. The trial court

admitted the exhibits into evidence over Barnes’s hearsay objection.

      Exhibit 6 was obtained from the Texas Department of Public Safety’s

Intelligence and Counterterrorism Division and Exhibit 7 was obtained from

Thomson Reuters’s CLEAR database. Exhibit 6 showed that from 2016 to 2022,

Barnes received wages from “S B Engineers & Construction Ltd,” as well as

several other companies. Exhibit 7 showed email addresses, addresses, phone

numbers, and social media profiles associated with Barnes’s full name and date of

birth. One of the email addresses included the domain name “sbec.com.”

      The investigator testified that based on a search using Barnes’s Social

Security number, name, and date of birth, Exhibit 6 showed Barnes’ employment

history. The investigator testified that her investigation showed that S.B.




                                        14
Management was one of Barnes’s last employers. The investigator then testified

that S.B. or S.B.E.C. was an “engineering chemical plant.”

      The investigator explained that Exhibit 7 showed email addresses and phone

numbers that have been used by someone with Barnes’s full name and date of

birth. She testified that results in Exhibit 7 showed that Barnes had an email

address with the S.B.E.C.’s domain name or email protocol.

C.    Analysis

      1.    Relevance under Rule 403

      Barnes first argues that the exhibits should have been excluded because they

were unfairly prejudicial. See TEX. R. EVID. 403 (excluding relevant evidence if its

probative value is substantially outweighed by danger of unfair prejudice). He

focuses this argument on the fact that the data collected from Barnes’s employment

history came from information from the Texas Department of Public Safety’s

Intelligence and Counterterrorism Division. The Division’s name is listed at the

top of the exhibit. Barnes argues that the evidence caused the jurors to convict him

because they thought he was a spy or terrorist, rather than because they believed

that he possessed and knew about the methamphetamine in the backpack. The State

responds that Barnes did not properly preserve this argument because his objection

in the trial court did not fully inform the trial court that he was objecting under

Rule 403.


                                        15
      Assuming without deciding that Barnes preserved his Rule 403 challenge,

the trial court did not abuse its discretion in admitting the evidence under Rule 403.

Generally, all relevant evidence is admissible. See TEX. R. EVID. 402. Evidence

need not by itself prove or disprove a particular fact to be relevant. Ex parte Smith,

309 S.W.3d 53, 61 (Tex. Crim. App. 2010); see also Stewart v. State, 129 S.W.3d

93, 96 (Tex. Crim. App. 2004). Evidence is relevant if it has any tendency to make

the existence of any fact of consequence to the determination of the action more or

less probable than it would be without the evidence. See TEX. R. EVID. 401. Rule

403 authorizes a trial court to exclude relevant evidence if its probative value is

substantially outweighed by the danger unfair prejudice, confusion of the issues,

tendency to mislead the jury, undue delay, or needless presentation of cumulative

evidence. TEX. R. EVID. 403. The trial court is best situated to determine whether

the evidence should be admitted or excluded. Winegarner v. State, 235 S.W.3d

787, 790 (Tex. Crim. App. 2007). The balance between probative value and the

potential for prejudice “is always slanted toward admission, not exclusion, of

otherwise relevant evidence.” De La Paz v. State, 279 S.W.3d 336, 343 (Tex.

Crim. App. 2009). Unless the trial court’s determination is so clearly wrong as to

lie outside the zone within which reasonable persons might disagree, we must

uphold its ruling. Id. at 343–44.




                                         16
      The    exhibits   strengthened    the    proof   that   Barnes   possessed   the

methamphetamine because they linked him to the company’s logo on the

backpack. This proof also rebutted the defense’s theory that the backpack and

methamphetamine belonged to Woodard.

      The exhibits have little tendency to suggest a decision on an improper basis

or to confuse or distract the jury. Barnes argues that the jury would give undue

weight to the exhibits because the data from one of them comes from the Texas

Department of Public Safety’s Division for Intelligence and Counterterrorism and

give undue weight to the evidence because the jury believed he was a terrorist. We

agree with the State that the name of the DPS division had little chance of swaying

the jury to believe that Barnes was a terrorist, or that if they so believed, that fact

would unduly influence them to believe that Barnes possessed the backpack of

methamphetamine. The State never mentioned the words “intelligence” or

“terrorism” in closing argument. The only mention of the name of the DPS

division came from the investigator, and she did not emphasize it. Finally, the

investigator’s testimony was brief, and the two exhibits were only a few pages.

This evidence did not take an inordinate time to present.

      We cannot say that, in light of weighing all the factors, the admission of this

evidence was unfairly prejudicial to Barnes. The trial court did not abuse its

discretion by admitting State’s Exhibits 6 and 7 over Barnes’s Rule 403 objection.


                                          17
      2.     Hearsay

      Barnes next contends that both exhibits were inadmissible hearsay. The State

responds that the exhibits met the hearsay exception for public records. See TEX. R.

EVID. 803(8) (making exception to hearsay rule for factual findings from legally

authorized investigation when opponent fails to demonstrate that source of

information lacks trustworthiness). Even if the trial court had admitted these

exhibits incorrectly, Barnes cannot prevail on this issue because the record does

not show any harm to Barnes’s substantial rights under Rule of Appellate

Procedure 44.2(b). See TEX. R. APP. P. 44.2(b) (“Any [nonconstitutional] error,

defect, irregularity, or variance that does not affect substantial rights must be

disregarded.”); Kibble v. State, 340 S.W.3d 14, 20 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d).

      A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury’s verdict. Kibble, 340 S.W.3d at 20

(citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). An error does

not affect a substantial right if we have “fair assurance that the error did not

influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356,

365 (Tex. Crim. App. 2001). We must examine whether the evidence had

significant potential “to lure the factfinder into declaring guilt on a ground




                                        18
different from proof specific to the offense charged.” Old Chief v. United States,

519 U.S. 172, 180 (1997).

      In making this determination, we consider (1) the character of the alleged

error and how it might be considered in connection with other evidence; (2) the

nature of the evidence supporting the verdict; (3) the existence and degree 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).

      The exhibits played a minor role supporting the conviction. By the time the

investigator testified about the exhibits, the jurors had heard significant evidence

supporting Barnes’s guilt. The evidence reflected that he was the owner and driver

of the truck where the methamphetamine was recovered. He had a significant

amount of methamphetamine in his pocket, and a larger amount in the backpack in

the truck. He “freaked out” when the officer found methamphetamine in his

pocket. The methamphetamine in the backpack was divided into bags, suggesting it

was for sale, and the bags were similar to the bag of methamphetamine in Barnes’s

pocket. There was a scale in the backpack. Police recovered a bottle of fake urine

from the driver’s side door of the truck. The logo on the backpack was for a

company in the industry that Barnes told the responding officer he worked.

      The State did not emphasize the exhibits or Barnes’s employment history. In

closing argument, the State mentioned the records once when urging the jury that


                                        19
the defense’s theory that the backpack belonged to Woodard was farfetched.

Arguing the jury should consider reasonable inferences from the evidence, the

State said, “You mean the drugs that were found in a backpack that has [Barnes’s]

last known employer, according to his records on it, in the back of his truck that he

was driving, that he admits is his, when he’s got methamphetamine in his pocket,

when he’s got fake urine right next to him in his front door, we are supposed to

believe that she’s the drug dealer?”

         The jury heard ample evidence to demonstrate that Barnes had possession of

considerable methamphetamine intended for sale. Even assuming the two

complained-of exhibits were erroneously admitted, we have fair assurance that the

exhibits did not influence the jury or had but a slight effect. Solomon, 49 S.W.3d at

365. The error did not affect Barnes’s substantial rights. See TEX. R. APP. P.

44.2(b). We overrule Barnes’s issues related to the admission of State’s Exhibits 6

and 7.




                                         20
                                   Conclusion

      We affirm the trial court’s judgment.




                                                Susanna Dokupil
                                                Justice

Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           21