Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-24-00295-CR George Dale Simmons, Appellant v. The State of Texas, Appellee FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY NO. B-23-0615-SA, THE HONORABLE LEE HAMILTON, JUDGE PRESIDING MEMORANDUM OPINION Appellant George Dale Simmons challenges his conviction for the second-degree- felony offense of possession of methamphetamine in the amount of four grams or more but less than two hundred grams. See Tex. Health & Safety Code § 481.115(a), (d). In three issues, he contends that the evidence is not sufficient to support his conviction, that the trial court erred when it denied his motion for directed verdict, and that the trial court abused its discretion when it overruled his Rule 403 objection. We affirm the trial court’s judgment of conviction. BACKGROUND Corporal Dwayne Zavala testified that he initiated a traffic stop of Simmons’s vehicle after observing a “defective license plate and a defective stop lamp.” After determining that Simmons had a suspended license, Corporal Zavala informed him that he was under arrest and asked him to exit the vehicle. Corporal Zavala testified that Simmons “started digging for something” either in the middle console or between the seats. Corporal Zavala testified that as Simmons exited the vehicle, he made a “weird hand motion on his right side.” Corporal Zavala testified that he asked to see Simmons’s right hand, and Simmons “moved his right hand in a weird motion on the side” before showing him his hand with his phone in it and stating, “I only have my phone in my hand.” Corporal Zavala testified that he had conducted over three hundred arrests arising from traffic stops and had never seen someone make the kind of hand movements that Simmons did. Corporal Zavala handcuffed Simmons and walked him to the patrol car. Corporal Zavala conducted an inventory search of Simmons’s vehicle. During the search, Corporal Zavala dropped his cell phone on the ground and as he reached for it, he saw something else under the car. He testified that he found an eyeglasses case containing a white crystal substance in three plastic baggies. He testified that the case was “directly underneath the driver’s door,” about a foot under the car. Corporal Zavala testified that based on a field test he conducted, the substance tested positive for methamphetamine. During Corporal Zavala’s testimony, three videos were admitted into evidence: a dashcam video of Simmons’s arrest, a body-cam video of the arrest, and a body-cam video of the inventory search. Corporal Zavala testified that the dashcam video depicted Simmons kicking his legs while being arrested. He compared the movement to someone kicking a soccer ball. He testified that in his experience this was not a common movement made by people being taken into custody. He opined that Simmons had dropped the glasses case on the ground while exiting the vehicle. On cross-examination, Corporal Zavala was shown screenshots from his body-cam footage and agreed that it showed that Simmons’s left hand was empty and that he was 2 holding his phone in his right hand. When asked how Simmons could have held and dropped the case from his right hand while maintaining grip on his phone, Corporal Zavala demonstrated how he would do so using pieces of paper. Corporal Zavala acknowledged that he never saw the case in Simmons’s hand or otherwise in his possession and did not see him drop anything. He agreed that the type of glasses case that was recovered was not the kind that fingerprints could be recovered from but that fingerprints could be recovered from the plastic baggies. He testified that he did not know whether there were any attempts made to collect prints from the plastic baggies. Forensic scientist Herman Carrol testified that he conducted lab tests of the substance in one of the three baggies and it contained 5.77 grams of methamphetamine. The State called Detective Orlando Juarez. Due to an expected defense objection to his testimony, the trial court allowed the State to question him first outside the presence of the jury. He testified that his investigative work focuses on narcotics cases. He testified that the street value of five-and-a-half grams of methamphetamine is about one-hundred-and-ten dollars. He explained that one gram is valued at twenty to thirty dollars. Defense counsel objected to this testimony based on rules of evidence 401 and 403. Specifically, he argued that the street value was not relevant to any element of the charged possession offense and emphasized that Simmons was not charged with an intent to deliver offense. He also argued that it had no probative value and would prejudice Simmons by confusing the issue and encouraging the jury to speculate about the likelihood that someone would leave behind drugs worth that amount. The State agreed that the testimony was not probative of an element of the charged offense but argued that it was probative of “a potential defense.” The State explained that “the greater the value of the narcotics . . . the less the 3 likelihood that it’s some sort of mistake that someone else besides the defendant dropped it and left it on the ground.” The trial court found that the testimony about the street value of the methamphetamine had some probative value and little prejudice to the defendant and overruled the defense’s objections. Detective Juarez then testified in front of the jury that a gram of methamphetamine is valued at between twenty and thirty dollars and that five-and-a-half grams would sell for one-hundred-and-ten to one-hundred-and-sixty dollars. The defense moved for directed verdict, which the trial court denied. After hearing all the evidence, the jury found Simmons guilty of possession of methamphetamine in the amount of four grams or more but less than two hundred grams. See id. § 481.115(a), (d). Simmons pleaded true to two enhancement paragraphs. The trial court found the enhancement paragraphs true and sentenced Simmons to fifty years in prison. See Tex. Penal Code §§ 12.32, 12.42(b). Simmons appealed. EVIDENCE OF POSSESSION WAS SUFFICIENT In his first two issues, Simmons contends that the evidence was insufficient to support the jury’s finding that he possessed the methamphetamine found under his vehicle, and consequently, that the trial court should have granted his motion for directed verdict. We will address these two issues together because a trial court’s ruling on a motion for directed verdict is viewed as a challenge to the sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The sufficiency of the evidence is measured by the elements of the offense as defined in a hypothetically correct jury charge, which is “one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or 4 unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “This standard requires the appellate court to defer ‘to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Id. (quoting Jackson, 443 U.S. at 319). “We may not re-weigh the evidence or substitute our judgment for that of the factfinder.” Id. Although factfinders “may not speculate about the meaning of facts or evidence,” they are permitted to “draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial.” Id. at 733. “We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution.” Id. This is because the factfinders are “the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony.” Id. “Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Id. Further, we consider all evidence that was admitted at trial regardless of whether it was properly admitted. See Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). Here, the State was required to prove that Simmons knowingly possessed over four but under 200 grams of methamphetamine. See Tex. Health & Safety Code § 481.115(a), 5 (d). “To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (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). The evidence must establish that the defendant’s connection with the drugs is more than just his fortuitous proximity to someone else’s drugs. Id. at 405–06. There must be an affirmative link between the defendant and the drugs. Id. at 406. When the defendant is not in exclusive possession of the place where the controlled substance is found, “it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.” Id. The Texas Court of Criminal Appeals has identified the following non-exclusive factors that “may indicate a link connecting the defendant to the knowing possession of contraband”: (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 narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics 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 the conduct of the defendant indicated a consciousness of guilt. Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016). 6 Simmons emphasizes the listed links that are not present in this case. Specifically, that he was not in control of the public street; that he could not reach under his vehicle while inside it; that the glasses case was not in plain view of him when he was in his vehicle; that no drugs, paraphernalia, or large amounts of cash were found on him or in his vehicle; that he did not attempt to flee; and that he did not make any incriminating statements. However, it is “not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial.” Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Further, Simmons’s assertions of missing links is based on an assumption that the drugs were always under the vehicle. However, we must view the evidence in the light most favorable to the verdict. See Tate, 500 S.W.3d 414 (“Although these factors can help guide a court’s analysis, ultimately the inquiry remains that set forth in Jackson.”). Doing so, the evidence supports a reasonable inference that Simmons retrieved the glasses case from inside his vehicle, dropped it on the ground as he exited the vehicle, and then kicked it underneath as he was being handcuffed. In addition to Corporal Zavala’s testimony that supports this inference as summarized above, his body-cam footage depicted how the glasses case looked that day. Although it did not appear new, it was not visibly damaged or dirty. The jury could have drawn a reasonable inference from the condition of the case that it had been recently dropped on the ground. Simmons’s furtive gestures made in an attempt to conceal the drugs—reaching into a concealed part of the vehicle, concealing his hand behind him while exiting, and making a kicking motion in the spot that the drugs were found—is an affirmative link between him and the drugs that is more than mere presence. See Davila v. State, 749 S.W.2d 611, 613 (Tex. App.— Corpus Christi–Edinburg 1988, pet. ref’d) (“Furtive gestures are an affirmative link between the 7 accused and drugs he attempts to hide or dispose of.”). Additionally, it was uncontested that Simmons was the driver and sole occupant of the vehicle when he was arrested. See Grant v. State, 989 S.W.2d 428, 433 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (concluding that “[b]ecause appellant was the driver and sole occupant of the vehicle, the first element of the offense of possession [was] satisfied”). We conclude that the evidence is sufficient to support the jury’s finding that Simmons knowingly possessed the methamphetamine found in the glasses case under his vehicle. See Uranga v. State, 247 S.W.3d 375, 381 (Tex. App.—Texarkana 2008) (concluding that evidence was sufficient to support that defendant “not only possessed the drugs, but was aware of their illegality” when defendant had sole possession of bag containing drugs and attempted to destroy that drug evidence), aff’d, 330 S.W.3d 301 (Tex. Crim. App. 2010). We overrule his first and second issues. ADMISSION OF EVIDENCE WAS NOT AN ABUSE OF DISCRETION In his third issue, Simmons contends that the trial court erred when it admitted Detective Juarez’s testimony about the value of the methamphetamine. Standard of review We review a trial court’s ruling regarding the admission or exclusion of evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Under that standard, a trial court’s ruling will be deemed an abuse of discretion only if it is so clearly wrong as to lie outside “the zone of reasonable disagreement,” Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is “arbitrary or unreasonable,” State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that the trial 8 court’s decision “is reasonably supported by the record and is correct under any theory of law applicable to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). In addition, an appellate court reviews the trial court’s ruling in light of the record before the court “at the time the ruling was made.” Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.— Dallas 2005, no pet.). Rule 403 provides that relevant evidence may be excluded “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. “Under Rule 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice. The rule envisions exclusion of evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value.” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (footnotes and internal quotation marks omitted). Accordingly, “the plain language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial. Indeed, all evidence against a defendant is, by its very nature, designed to be prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (internal citation omitted). “Probative value” means more than relevance; it “refers to the inherent probative force of an item of evidence—that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation—coupled with the proponent’s need for that item of evidence.” Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “Unfair prejudice” refers to a “tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Id.; see Inthalangsy v. State, 634 S.W.3d 749, 758 (Tex. Crim. 9 App. 2021). In conducting a Rule 403 analysis, the trial court must balance the claimed probative force of the proffered evidence along with the proponent’s need for the evidence against: (1) any tendency of the evidence to suggest that the case would be decided on an improper basis; (2) any tendency of the evidence to confuse or distract the jury from the main issues; (3) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence; and (4) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016) (citing Gigliobianco, 210 S.W.3d at 641–42). These factors may blend together in practice. Gigliobianco, 210 S.W.3d at 642. The trial court’s balancing test need not be performed on the record. See Hitt, 53 S.W.3d at 706. Reviewing courts should afford trial courts a high level of deference regarding admissibility determinations under Rule 403. See Brickley v. State, 623 S.W.3d 68, 79–80 (Tex. App.— Austin 2021, pet. ref’d). Balancing test Simmons contends that the evidence had no probative value—the probative force plus the State’s need for it—because the value of the drugs was not an element that the State was required to prove. However, a piece of evidence’s probative value is not limited to only the elements of the offense. Colone v. State, 573 S.W.3d 249, 267 (Tex. Crim. App. 2019) (explaining that probative value of motive evidence was not minimized by not being element of charged offense but rather was “highly relevant”). Evidence that tends to rebut a defensive theory is relevant, see Taylor v. State, 920 S.W.2d 319, 322 (Tex.Crim.App.1996), and a fact of consequence, see Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) (referring to 10 “rebutting a defensive theory” as example of potential “fact of consequence in the case”). Here, Simmons’ defensive theory was that the glasses case was already on the ground when he was pulled over for the traffic stop. Thus, the evidence had the probative force of rebutting that theory and weighs in favor of admission. In deciding whether the evidence was needed by the State, we consider whether the proponent had other evidence to establish the fact of consequence, how strong the other evidence was, and whether the “fact of consequence related to an issue that is in dispute.” See Erazo v. State, 144 S.W.3d 487, 495–96 (Tex. Crim. App. 2004). As discussed above, the State’s evidence that Simmons possessed the drugs included the dash-cam and body-cam footage from the arrest and search and Corporal Zavala’s testimony that Simmons reached into the vehicle, made a weird hand gesture while exiting, and kicked his feet in the area and direction of where the drugs were found. Through cross-examination, the defense elicited testimony that Corporal Zavala did not see the glasses case in Simmons’ hand, see it fall to the ground, or suspect that something had fallen until he looked under the vehicle to retrieve his phone. Corporal Zavala also testified that the baggies could have been tested for fingerprints. No fingerprint evidence was admitted. Thus, although the State had other evidence that tended to show that it was more likely that the drugs originated inside Simmons’s car than on the street, the evidence was weakened by cross-examination and the defensive theory. Further, whether Simmons dropped the glasses case on the ground or if it was already there was the main factual dispute at trial. Applying the three Erazo questions to this case, we conclude that the State’s need for this evidence weighs in favor of admission. Simmons contends that the evidence had a high tendency to suggest a decision on an improper basis. Specifically, he contends that it allowed the State to make an improper 11 argument to the jury requesting that they speculate about how the drugs ended up on the roadside. Simmons does not provide support for his contention that it was improper for the jury to be allowed to consider the value of the drugs for the purpose of determining whether it was less likely that someone else had left or lost them in the road. Rather, our sister court has concluded, in the context of a sufficiency analysis, that evidence that the drugs found were in a large and valuable amount suggested that it was “an amount not likely be misplaced or forgotten by an owner or person entrusted with its possession.” Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). We cannot conclude that the trial court abused its discretion in determining that this evidence was presented for a proper purpose. This factor weighs in favor of admission. Simmons contends that the evidence distracted the jury from focusing on the elements of the offense. This factor addresses the evidence’s “tendency to confuse or distract the jury from the main issues in the case.” See Gigliobianco, 210 S.W.3d at 641. Here, the main factual dispute was how the drugs got under Simmons’s vehicle, which related to whether Simmons possessed them. Although the State was not required to prove the value of the drugs, this testimony was ultimately focused on a main issue of the case. Thus, we conclude that it weighs in favor of admission. Cf. Ex parte Lane, 303 S.W.3d 702, 711 (Tex. Crim. App. 2009) (holding in context of ineffective assistance of counsel claim that any risk that evidence of street value of methamphetamine “might confuse the issues before the jury was outweighed by its helpfulness in translating the testimony into terms that were easily comprehended by the jury”). The next factor concerns “a tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds. For example, ‘scientific’ evidence might mislead a jury that is not properly equipped to judge the probative force of the evidence.” See 12 Gigliobianco, 210 S.W.3d at 641. Simmons contends that the jury was not equipped to evaluate the testimony and was misled by the evidence because it had no probative force. As discussed above, the evidence had the probative force of rebutting Simmons’s defensive theory. Further, the testimony and underlying argument that the drugs were valued at an amount that made it less likely for someone to lose or misplace them on the side of the road did not require the jury to have any specialized knowledge. Rather, the State argued to the trial court that this testimony was intended to provide the jurors with the necessary knowledge needed for them to use their common sense. This factor weighs in favor of admission. Regarding the time-consuming or repetitive nature of the evidence, Detective Juarez’s testimony was short and narrowly focused on establishing his credentials as a narcotics officer and giving his professional opinion of the street value of the methamphetamine. This factor concerns “whether the jury was distracted from the charged offense.” Love v. State, 706 S.W.3d 584, 616 (Tex. App.—Austin 2024, pet. ref’d). In calculating the time needed to develop the extraneous-offense evidence, we exclude jury argument and hearings held outside the jury’s presence, see Dennis v. State, 178 S.W.3d 172, 181 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d), and include “any testimony introduced regarding the evidence, including cross-examination, redirect examination, and any rebuttal offered by the defense in response to the evidence,” Hart v. State, 688 S.W.3d 883, 893 (Tex. Crim. App. 2024). Here, all the evidence was presented in two days and covers about seventy-four pages of transcript. Detective Juarez’s testimony in front of the jury covered about two pages—less than three percent. See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (concluding this factor weighed in favor of admission where extraneous-offense testimony amounted to “less than one-fifth” of trial testimony). Simmons concedes that the time spent developing this testimony was “minimal.” 13 However, he contends that based on his assertion that the testimony had no probative value that even the short testimony took “valuable time and focus away from the charged offense itself.” However, contrary to Simmons characterization of this testimony, it is related to the charged offense. See Love, 706 S.W.3d at 616 (noting that “[t]he precise ratio is less important than determining whether the jury was distracted from the charged offense”). Whether the drugs were possessed by Simmons or were already on the road when he was pulled over was the main factual issue in dispute. This factor weighs in favor of admission. In summary, all of the factors weigh in favor of admission of the evidence. Further, “Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial.” Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). Thus, we conclude that the trial court did not abuse its discretion when it admitted the objected-to testimony. We overrule Simmons third issue. CONCLUSION Having overruled all of Simmons’s issues, we affirm the trial court’s judgment of conviction. __________________________________________ Gisela D. Triana, Justice Before Justices Triana, Kelly, and Theofanis Affirmed Filed: October 8, 2026 Do Not Publish 14