Opinion issued October 31 , 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00764
- CR

——————————— R USSELL AARON HESTER , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 10th District Court Galveston County, Texas Trial Court Ca se No. 17
- CR
- 2105

O P I N I O N A j ury found a ppellant Russell Aaron H ester guilty of engaging in o rganized

cr i m inal activity and assessed his punishment at ten years ’ confi nement

. 1 In two issues, Hester a sserts on appeal that : ( 1) t h e trial court erred in admitting, over

1 See T EX
. P ENAL C ODE § 71 .02.2

Hester ’ s objection, unauthenticated text messages between the undercover detectiv e a nd a third party ; and (2) the evidence was insufficient to establish a

“ combination” as required to support Hester ’ s conviction for e ngaging in organized crime. Because we con clude that the trial c ourt did not abuse its discretion in ruling that th e te x t messages had been properly authenticated and that the evidence was sufficient to establish the elements of engaging in organiz ed crim e , we affirm. Background After receiving multiple tip s from neighbors regarding suspicious activity,
t he League City Poli c e Department began surveilling the house at 612 Brunswick in League City, Texas

. Lieutenant S. An tly testified that he supervised t he i nvestigation into the Brunswick house , wh ich he described as a “ problem house

. ” Lieutenant Antly testified that he had been “ out th e re previously on another call ” that was “ n arcotics

- related. ” Detective T. Knowlton, who al so participated in the investigat ion, testifi ed that the tip from the neighbors specifically reference d James Lafrenz , a resident of the house, as “ th e most likely s u spect ” for dealing drugs

. During surveillance operations, d etectives observed people coming and going from the house and ma de traff ic s tops when appropriate to conduct further investigation. Detectives were not able to obtain video surveillance or ph otogr a phs be cause t hey did not want to draw the attention of the house ’ s occupants or3

visitors. Li eutenant Antly testified that t he Brunswick house was on “ the very back street of [a] small subdivision ” with only “ one way in, one way out. ” He testified that off i cers with ca m eras would have been very noticeable , “ [e]specially [at the
B run swick] house, very obvious, because there was very little traffic on that street besides that house. ” On June 20, 2017, Dete c tive R. Ha unschild , acting undercover , made his first p u r chase of a small amount of methamphet amine from Lafrenz at the Brunswick house

. De tective Knowlton and other per sonnel o bserved from a distance and were available to assist if Detective H aunschild need ed it. On June 27, 2017, Detective Haun s child return ed to the Brunswic k house and ma de another small purcha se of methamphetamine from Laf renz. Detective Haunshcild observed th at Lafrenz retrieved the drugs from the master b edro om closet , and Haunschild obser ved that the closet also contained “ a scale, methamphetamines and baggies ” in addition to other miscellaneous items

. Following this sale, Haunschild was able to obtain Lafre nz ’ s phone number and beg an com m

u nicating with him by pho ne. At this point , detective s were h o ping to find out who was s uppl ying Lafrenz with the drugs that he was s elling , so o n June 29, 2017, D e tective Haunschild and Detective A. Strachan went to the Br unswick house again, this time to try to buy a larger amount of methamphetamine , an eighth of an ounce, also referred to as an4

“ eight

- ball

. ” D ete ctive Knowlton, who was conducting s urveillanc e while the other d etectives acted as unde rcover drug buyers , tes tified that he had observed a Silver Saturn in the Brunswick house ’ s driveway bef ore the underco ver detect i ves arri v ed

a n d t hat it was gone by the time Detecti ves Haunschild and St rachan arri ved

. Detective Strachan likewise testified that the only car at t he Brunswick house when they arrived was a M ercury Montego registered to Montgomery. Detective Haunschild testified that , when he arrived at the house, L afrenz was there with Montgomery. This was the first time Haunschild had interacted with Mon tgomery, bu t he testified that it ap peared to him that Montgom ery was

“ aware of what was happening. ” W hile Detective Str a chan wai ted in the car, Detective Haunschild asked Lafrenz if he could sell them an eight

- ball. According to Detective Haunschild , Lafr enz stated t hat he could not supply that amount , but Lafrenz also st at ed that his “ dealer had just left and he could cal l him back to the hou se. ” They agreed on a price of $130 for the sale. At that point, Haunschild got Detective Strachan from the c ar and they waite d in the house for Lafren z ’ s dealer to arrive. According to Detect ive Strachan, after Haunschild came t o get her from the

car , they both went inside the h ouse. She testifie d that , after entering the house, she and Haunschild “ ta lked in the ki tchen with Jam es Lafrenz and Steven Montgomery, the two peop le that lived in the house. And Montgomery ended up5

going into a front bedroom while we still ta lked with L a frenz. ” Detective St rach an testified that th ese conversations were “ narcotics

- related

. ” Detective Know lton likewise testified that La frenz and Montgomer y w ere at the Brunswick house during this deal. Detec t ives Strachan and Haunschild waited approximately ten minute s until
L afrenz ’ s dealer

— later identified as Hester

— arrived. Strachan state d that Hester

“ se em ed very familiar to be able to just walk in and go straight to the master bedroom. ” Detective Haunsch i ld likewise testified that , when Hester arrive d, he and Lafrenz “ were conversing in the li ving room. And I heard a brief knock on the d oor, and Mr. Lafr enz yelled, ‘ Come in, ’ as the person was entering the ho me. ” Haunschild testified that, b ased on his ob s ervations, Hester was “ very knowled geable ” abo ut the layout of the house. Even though there were multiple ways to get from the front do or to where he an d Lafrenz were conversing , H ester

“ took the most opportune route through the kitchen area , met with Mr. Lafrenz br iefly and w a lked back into Mr. Lafre nz ’ s ma ster bedroom without being accompanied by the master of the home. ” At some point, Lafrenz had a “ br ief ” conversation with Hester in which Lafrenz told Hester, “ I told them $130 , ” apparently in reference to the cost for p urch a sing an eight

- ball of

me thamphetamine.6

According to Detective Stra chan, Hester came out of the bedroom with “ a la rge piece of crys tal meth and he commented on how much it was and then he went back in the bedroom. We weren ’ t there to p urchase that large amount. ” Detective Haunschild testi f ied that Hester told the m that the shard weighed 15
grams and that he intended t o break off a sma ller amount to sell to Haunschild and Strachan. Hester then returned to the ma ster bedroom. Detective S t rachan testified that she gav e $1 30 in cash to Detectiv e Haunschild , and H ester came out of the bedroom a second time “ with a smaller baggie with what a ppeared to be closer to the amoun t that we were going to buy. ” Haunschild confi r med the weight of the drugs in the baggie and then pai d Hester with the money h e had gotten from Strachan. After completing the p urchase, Detectives Haunsc hild and Strachan lef t

“ almost immediately , ” while Hester was stil l at the Brunswick house. Dete ct i ve Stra chan observed a silver Saturn in the dr iveway. U sing information that sh e obta ined from running the Saturn ’ s license plate information through police databases, Detective Strachan learned that the silver Saturn belonged to Hester , and she di scov e red several associated addresses, including one in Sea b rook. Detec tive Haunschi ld testified that the team wante d to set up another drug purchase directly wit h Hester.7

Detective Hau nschild texted with Lafrenz to obtain contact information for Hes t er. Haunschild then te xted Hester to arrange a purch ase f or an even larger amount of methamphetamine

— either a quarter or a half of an o unce. Hester indicated that he could get a “ quarter ” to sell to Haunschild and provided Haunschild with his address so t h at the two could meet up to get the drugs. O n July 7, 2017 , Detective H a unschild picked H e ster u p from his home in Seabrook

. Haunschild observed the silve r Saturn at Hester ’ s house

. H aunschi ld and Hester drove around and had a conversation about Hester ’ s ability to se ll the requested amount of drugs

. According to Detective Haunschild , Hester “ said that he had different connects ” and that “ his girl plug [or supplier ] could possibly fill the or der, but she had fallen off the map.

. . . A nd then he starte d making additional phon e calls to try and fulfill that order that we agreed upon. ” Hester also mentioned Montgo mery during this conversation. W hile Haunschil d was in the car with him , Hester ca lled “ Steve ” on the p hone in an attempt to find a supplier for the drugs , and Hester later confirmed tha t “ Steve ” was the same man

— Montgomery

— who had been at the house du ring the June 29 drug deal

. D etective Haunschild t estified that he and Hester were una ble to complete the deal at that time , so they agreed to “ cont i nue our deal, ” stating that
H ester would make more phone calls: “ [H]e was re ally wanting to look elsewhere to try to fulfill the order, and he wanted some m o re time to do that. ”8

They e x changed further text messages , including negotiati ng over the price f o r the “ quarter ” of met hamphetamine, with D etective Haunschild at one point offering $150 for the drugs. Hester replied, “ Lol. Get out of here. I ’ ll make 550 off that before 12:00 o ’ clock tonigh t. ” Ha unschild testified that, in his experience, this
meant t h at Hester “ was going t o break it down so that he could make more money off of it versus selling it to me raw. ” The negotiatio ns by text message then broke d own , and Hester and Haunsch ild were u nable to reach a deal.
D etective Haunschi ld testified that “ s h ortly thereafter ” he c ontacted Montgomery. After overhearing part of the phon e conversation between Hester and Montgomery, Haunschild thought that Montgomery might be able to fill the or der. On July 11, 2017, Haunschild met with Mont gomery at th e Brunwick house and

as ked hi m if he could get him a half ounce of methamphet amine. Mont gomery told Detective H aunschild that he could and told Ha unschild to get back in touch with him. Montgomery gave Hau nschild his phone number. Detective Haunschild used the phone number to te xt Montgomery , who tol d Haunschild he was “ checking on it

. ” H aunschild understood this to mean that Mont gomery was trying t o get the

re quested half o unce of methamphetamine. They neg ot iated a little more but were ultimately unable to complete the deal. Det ective Haunschild testified that the deal fell through because Mont gomery wanted to be paid up front before procurin g the drugs f or Hau nschild , and Haunschild would not agree to that

.9

At this point, the investigation into the Brunswi c h house ended. Detecti ve s subsequently obtained a search warrant and ar res ted H ester, Lafrenz, and Montgomery. T he jury ultimately convi cted Hester of engagi ng in organized

cr i m inal activity with regard t o selling narcoti cs.

Authenticatio n of Te x t Mess age s In his first issue, H e ster argues th at the trial court erred in admitting, over
Hester ’ s objection, copies of the text messages between Detective Haunsch ild a nd Montgomery because the messages were not p roperly authenticated. A. S tand ard of Review T o p ro perly authenticate a pi ece of evidence, “the prop onent must p r oduce evidence sufficient to support a finding that the item is what the proponent claims it is. ” T EX
. R. E VID
. 901(a) ; Tienda v. S t ate , 358 S.W.3 d 633, 638 (Tex. Crim. App. 2012)

. “ Whether th e proponent has crossed t his threshold as required by Ru le 901 i s one of the pr elimina ry questions of admissibility contemplated by Rule [of Evidence] 104( a ), ” and “ [t ]he trial court should admit proffered evid ence “ upon, or subjec t to th e introduction of ev idence sufficient to su pport a finding of authent icity

. ” Tien d

a , 358 S.W.3d at 638. It is within the jury ’ s purvie w to “determine whether an item of evidence is indeed what its pro ponent claims; the trial cou rt need only make the prelim inary determinatio n that the proponent of t he item has supplied facts suff icient t o support a reasonable jury determination that10

the p roffered evidence is authentic.” Butler v. S tate , 459 S.W.3d 595, 600 (Tex. Crim. App. 2015) ; see Tienda , 358 S.W.3d at 638 . W e review a trial c ou rt ’ s threshold determin ation of au thenticity unde r an abuse o f discretion standard. Butler , 459 S.W.3d at 600 ; s ee De La P a z v. State , 279 S.W.3d 336, 343

– 44 (Tex. Crim. App. 2009) ( stating that appella te courts review trial court ’s evidentiary rulings for a buse of discretion )

.

“ As with other types of evidence, text messages may be auth e nticated by

‘ evidence sufficient to support a findin g that the matter is wh at its propo nent claims. ’ ” Butler , 459 S.W. 3d at 600

– 01 (qu oting T EX
. R. E VID
. 901(a) )

. Authenticat io n “ can be accomp li shed in myriad ways, ” i ncluding “ through the
test imony of a w i tness with knowledge or through evidence showing dis tinctive characteristics. ” Id. at 6 01 (citing T EX
. R. E VID
. 901(b) (1 ) , (4) )

. W hile “ ev idence that merely shows the association of a phone number wi th a purported sender

— a lon e

— might be too tenuou s , ” the Court of Criminal Appeals has held : A witness might also cl aim to have knowledge that a t ext message came from a phone num ber known to be assoc iated with the purported sender. The a ssociation of a cell

- phone number wi th a pa rticular individual might suggest that the o wner or user of that number may be the sender o f a text message. Indeed, the suggestion may be quite strong. U nlike so

- called “land lines,” commonly utilized by an entir e household, cell ph ones tend to be persona l and user

- specific

. Id.11

The Court of Criminal Appeals further recognized that , “[a] s wit h e vide n ce in general, authentica ting evidence may be direct or c ircumstantial

. ” Id. at 602. And it stated that when a s ponsoring wit ness testifie s to an association between a cell

- phone numbe r and a purported author, “ other evidence may be ava ilabl e that

m ight bridg e the logical gap and permit a proper inference that t he purported author sent the message

. ” I d. at 601. This “other evidence ” can include evidence of

“ the message ’ s ‘ appear ance, contents, substance, internal patterns, or other distinctive characteristics, ’ wh ich c onsider e d in conjunction with other circumsta nces support a conclusion that a message indeed emanated from t he purported autho r. ” Id. at 602 (quoting T EX
. R. E VID
. 901(b)(1)). B. Analysis A t trial, when t he State offered printed copies of text messages exchanged betwe en Detective Haunschild and Lafrenz , Hester, and Montgomery , Hester objected on the basis that the messages were not properly authe nticated

. Before int roducing the messages into evidence, Detective H aunschild testified that he used a program designed “ for police officers to spoof a number , ” explai ning that the program “ cre ates a number for you for whatever the area code you want. ” He further explained th a t he us e d the program to send me ssages and it

“ records everything

— everything that happens, audio recordi ng as well as text message recordi ng. ” H e testified that he used thi s program to contact Lafrenz ,12

Hester, and Montgomery from a city

- owned cell phone , and the records of those messages were printed through the police “ LETS system

. ”
R egarding the text mess ages bet ween hims elf and Montgomer y, Detective Haunschild ’ s testimony provided context for the exchange as pa rt of the larger investigation. D etective Haunschi ld stated that, following his failed negotiation for a bigger purchase from Hester, he return ed t o the B runswick house to contact
M ontgomery in person on July 11, 201 7

. Mont gomery gave Haunsch ild his cell phone numbe r during this in

- person meeting, and they later exchanged text messages. T he State sought to authenticate the text messages between Haunschild

a nd Montgomery , relying on D etective Haunschild ’ s ide ntifi cation of the messages based on his memory of the exchange

. De tec tive H aunsc hild testified tha t the
cop ies of the te xt messa ges between himself and Mon tgomery were obtained through the LETS sy stem, a nd he identified the phone number s as being the c ell phone he used for undercover work and the one that Montgomery had given him in
person . H e further testified that he knew it was Montgomery he was texting with because “ I told h im I wou ld get with him on my good number after speaki ng with him in person, ” referring to the content of the m essages themselves as being consist ent wi th the i n - person meeting h e had had with Mont gomery. T he trial court overruled Hester ’ s objection that the messages had not been pr operly authenticated and ad mitted the text messages into evidence

. The content of the messages13

indicated that Haunschild and Mont gome ry attem pted to se t up a drug deal but

were ultimatel y uns u ccessful.
H ester argues that the S tat e failed to authenticate t he text message s betwe en De tective Haunschild and Steve Montgomery when it produced eviden ce only of an associat ion between the phone num ber and Montgo me r y , and , thus, the trial court erred in admitting the unauthenticated text messages . Hester cites the C ourt of Crimina l Appeals ’ d ec ision in Butler cautioning courts that mere evidence of a n associa tion between a phone number and a pers on i s not sufficie nt to authenticat e messages . He relies on the following passage from Butler : “ Still , evidence that merely shows the ass ociation of a phone number with a purport ed sender

— al one

— might be too tenuous. We have advised caution in the event a tria l court finds that this is the only fact underlying a witness ’ s knowledge linking a text message to a purported author. ” Butler , 459 S .W.3d at 601 (emphasis in original). Here, however, there was more than a mere association between Montgomery and the pho ne n umber in quest ion. Not only did Detective Haunschild identify the number as being the one he was given in person by Mont gomery, but he relied on his own memory of having engaged in the text
messag ing with Montgomery

. H aunschild testified that he knew h e was texting with Montgomery because the cont ent of the messages the mselves was consistent with h is previous in

- person conv ersations with Montgomer y. See Butler , 45 914

S.W.3d at 601 (hold ing that a uthenticat io n “ can be accomp lished in myriad ways, ” including “ through the tes t imony of a w i tness with knowledge or through evidence showing dis tinctive characteristics ” ). Dete ctive Ha unschild asked Montgomer y in person at the Brunswick house whether Montgomery could obtain the amount of methamphetamine that he was hopin g to buy, a nd the two men continued that

convers ation by text message until it was clear that a deal could not be re ached. Detective H aunschil d ’ s test imony establishes that the content of the messages themselves, including the terms and lan guage use d , was consistent between their in

- person meeting and their s ubsequ ent text mess ages. See id. at 602 (iden tifying

“ other ev idence ” that may “ bridge t he log ical gap ” as includ i ng evidence of “ the
message ’ s ‘ appearance, contents, substance, internal patterns, or other distin ctive characteristics, ’ wh ich c onsider e d in conjunction with other circumstances support a conclusion that a message indeed emanated from t he purported autho r ” )

. The jury r ationally could have chosen t o beli eve Det e ctive Haunschild ’ s testim ony regarding t he text message exchan ge in determining that the messages were what the S tate claimed they were

— tex t messa ges exchanged between Dete ctive H aunschild and Montgome ry in a failed negot iation for the sale of methamphetamine. See id. at 600

– 0 1 ( holding that te xt messages may be auth e nticated by evidence sufficient to support findin g that matter is wh at its
propone nt claims ) . Accordin g ly, t he t rial court ’ s deci sion to admit the text15

messages and leave the ultimate question of the weight and cr edib ility of the evidence to the jury was well within the zone of reasonable di sag reement

. Se e id.
at 600, 605 (holding that ju ry must “ determine wheth er an item of evidence is indeed what its pro ponent claims ” and that “ the trial court need onl y make the prelim inary determinatio n that the proponent of the item has supplied facts suff icient t o support a reasonable jury determination that the p roffered ev idence is authentic ” ). We overrule Hester ’ s first issue

Sufficiency of the Evidence In his se cond issue, Hester argues that the evidence was insufficient to establish a “ combination” as requi red to support his conv iction for engaging in organized crime. A. S t andard of Review I n conducting a legal sufficiency revie w, we view all the evidence in the li ght most favorable to the verdict to determine whether any rational factfinder could hav e fou nd th e e ssential elements of the offense beyond a reasonable doubt. J a ckson v. Virginia , 443 U.S. 307, 319 (1979) ; Whatley v. State , 445 S.W.3d 159, 166 (Tex. Crim . App. 2014) . We defer to the factfin der to resolve conflicts, weigh the evidence, and d raw r eason ab l e inferences. Whatle y , 445 S.W.3d at 166 (“This ‘familiar sta n dard gives full pl ay to the responsibility of the16

trier of fact fairly to resolve co nflicts i n the testimony, to weigh the evidenc e, and to draw reasonable inferences from basic fac ts to ulti ma t e facts.’ ” (quoting Jackson , 443 U.S. at 319 ) ) . We presume th a t the factfinder r esolved any conflicting inferences in favor of the verdict, and we defer to that resolution. Id. ; see Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

.

“ [D] irect e v idence of the elemen ts of the offense is not required.” Hoope r v. State , 214 S.W .3 d 9, 14 (Tex. Crim. App. 2007) . C ircumstantial evidence is as probativ e as direct evidence, and juries are permitted to make reasonable inferences from the ev idenc e pre se n ted at trial and in est ablishing the defendant’s guilt. Id

. at 1 4

– 15

. “C ircumstantial evid ence alo ne can be sufficient to establ ish guilt.” Id. at 15

. “Each fact nee d not point directly and independentl y to the guilt of the appellant, as long as the cum ulati ve fo rc e of all the i ncriminating circumstances is sufficient to suppo rt the conviction. ” Thomas v . State , 444 S.W.3d 4, 8 (Te x. Crim. App. 2014) ; Winfrey v. State , 393 S.W.3d 763, 768 (Tex. Crim. App . 2013)

. A person commits the offen se of engaging i n org anize d c riminal activ ity “ if, with the intent to establish , m aintain, or participate in a com bination or in the profits of a c om

bin ation

. . . the person commits o r cons pires to commit one of more of the following [ enumerated predicate off en ses ]. ” T EX
. P E NAL C ODE § 71.02( a )

. Re levant here, section 71.02(a) recognize s th e “ u nlawful manufacture, delivery, dispensation , or distribution of a controlled substance or dan gerous drug,17

or unlawful possession of a controlled substance or dangerous drug through forgery, f

raud, misreprese ntation, or decep tion ” as a predicate off ense. I d. § 71.02( a ) (5).

“ Engaging in organiz ed criminal activity is a ‘ circumstances of the conduct ” offense, the circumstances being the existence or creation of a combination that coll aborates in carrying out cri mina l activities

. ” O ’ Brien v. State , 544 S.W.3d 376, 3 84 (Tex. Cri m. App. 2018) . For purposes of engaging in orga nized criminal activity: “Com binatio n ” means three or more persons who collaborate in carrying on criminal activities, although : (1) participa nts may not know each other ’s identity; (2) membership in the combination may change from ti me to time ; and (3) participants may stand in a whol esaler

- re ta iler or other arm ’s

- length relationship in illicit distribut ion operations. T EX
. P E NAL C ODE § 71.01 (a)

. “Conspires to commit” means that “ a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in p ursuance o f the agreement. ” Id. § 71.01(b) . Furthermore, “ [a] n agre ement constituting conspiring to commit may be inferred from the acts of the parties. ” I d.18

In consi dering the meaning of the phrase “ collaborate in carrying on criminal activities ” as used in the s tatutory definit ion of “ combination, ” the Court of Crimin al Ap peals held that “ the S tate must prove more than that the appel l ant commi tted or conspired to com mit one of the enumerated offenses with two or
more pe ople, ” and that “ something more ” is “ continu ity. ” Nguyen v. S tate , 1 S.W.3d 694, 697 ( Tex. Crim. App. 1 999); see O ’ Brien , 544 S .W.3d at 389

– 90 (noting that use of plural “ activities ” implies that combin ation at issue must do more than one thing )

. “ [I]n other words, [the S tate must prove] that the a ppellant and two or more people agreed to ‘ work together i n a continuing course of criminal activities. ’ ” Nguyen , 1 S.W.3d at 697. However, the Court of Crimin al Appe als has

“ re jected the argument that the proof of an intent to engage in a contin uing cours e of criminal act ivities require d a showing of a series of criminal acts. ” O ’ Brien , 544 S.W.3d at 390

. “ To convict of engagi ng in organized criminal activity , i t is enough to show the collaboration to commit criminal activities including the commission of o ne of many possib le offenses; the focus is upon the colla boration, not upon which offense is committed. ” Id. S imilarly, to prove a n “intent to establish, maint ain, or participate in a combination or in the profits of a combination , ” the State must “ show th at the predicate offense was committed as part of a colla boration of three or more people working together in a continuing course of criminal activities. ” Id. at 391.19

For purposes of establishing deli very of a controlled substances, “ deliver ”

means “ to transfer , actually or constructively, to another a controll ed substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relations hip. ” T EX
. H EALTH & S AFETY C ODE § 481.002 (8). The term

“ includes offering to se ll a controlled su bstance. ” I d. B. Analysis Hester was charged with c ommitting the offense of delivery of contro lled substance “ with intent to establish , main tain o r participate i n a combination or in the profits of a combin ation, said com bination consisting of JAMES LAFRENZ and STEVE N WAYNE MONT GOMERY

. ” Thus, t he S tate had to prove beyond a

reason able doubt that H ester delivered a controlled substa nce to D etective Ha unschild as part of a collaboration with Lafrenz and Montgomery working together in a continuing course of criminal activities. The State presented evidence , t hrough the testimony of D etective
H aunschild , testimony of oth er investigating officers, the text message s, and the actual drugs purchased by detectives th at Hester, Lafrenz, and Montgomery all sold or offered t o sell methamphetami ne to Detective H aun schil d. The evidence ind icated that H ester, Lafrenz, and Montgomery knew each other and worked together to mak e the drug sales. When Lafrenz was unable to provide the amount of drugs H au nschild sought to buy, he cont acted his “ dealer, ” Hester. When H ester20

was a ttempting to find a source for the even larger amount of drugs Haunschild requested, he contacted Montgom ery. Montgomery himself at one point offered to procure the drugs Haunschild ha d requested

. This evidence was sufficient for the jury to infer t hat H es ter, acting with “ the intent to establish , maintain, or participate in a com

bination ” with Lafrenz and Mo ntgomery , committed the offense of delivery of a controlled substance. See T EX
. P E NAL C ODE § 71.02( a ); T EX
. H EALTH & S AFETY C ODE § 481.002 (8)

. H ester a cknowle dges in his brief that the evidence of the various drug transactions between Detective Haunschild , Lafrenz, and H ester “ is sufficient to allow an inference that Hester intended to engage in drug sales with Lafre nz , ” bu t he argues that there was no e videnc e that Hester and Mont gomery intended to engage in a continuing course of criminal activities. H e ste r argues that he “ is not alleged to have ever said anyt hing to Steve Montgomery ” and that Montgomery

never participated in the drug sale between Heste r and Detecti ve Haunschild except to the e xtent that he was “ simply existing in his own apartment during a time when his roommate and Hester sold drugs to an undercover office r. ” H ester argues that “ [n] o evidence exists , other than the fact of living toget her, t hat Steve Montgomery was involved in any way with th e ongoing criminal beh avio r [ of] James Lafrenz. ”21

The evidence indicates , however , more than Montgomery ’s mere presence during a single drug sale. Detectiv e Haunschild tes tified that , during the sale on Jun e 29, Mont gomery was present and seemed to be aware of what was happening with the drug sale . Haunsc hild further testified that , on July 7, 201 7, while he was driving Hester around Seabrook, Hester called M ontgomery in an attempt to fulfill Haunschi ld ’ s re quest for a quarter of an ounce of methamphetamine

. Haunschild then contacted Montgomery in person a nd through text me ssage, and during these conversations, Montgomery offered to sell metha mphetamine to Hau nschild before the deal ultimately fell apa rt. Thi s is sufficient to establish that Hester , Lafrenz, and Montgomery committed the predicate offense of delivery of a controlled subst ance as part of a coll aboration in a continuing course of criminal activi ty

. See
T EX
. H EALTH & S AFETY C ODE § 481.002 (8 ) (prov iding that term “ deliver ” includes

“ offering to se ll a controlled substance ” ); O ’ Brien , 544 S.W.3d a t 391

. H ester also asserts that “ the evidence is only sufficient to prove that in this criminal e pisode, H ester intended to work with Lafrenz to faci litate the delivery of the controlled sub stance to [Detective] Haunschild. ” Hester ’ s evaluation of the

“ cri minal episode ” narrow ly focu ses on the June 29 drug sale, when Haunschild purchased an “ eight

- ball ” of met hamphetamine from Hester a t Lafrenz and
Mon tgome ry ’ s home. This limited view of the criminal activity alleged in this case is undermined by the evid ence before the jury

— the jury learned of multiple drug22

sales or attempts to sell dr ugs that involved L afre nz, Hester, and Montgomery at

va rious times. There w as also evidence that all three were aware of and worked together to make the drug sales. When Hes ter arrived to se ll Dete c ti ve Ha unschild the “ eight

- ball, ” H ester was very comfortable in Lafrenz and Mo ntgomery ’ s house

. H e entered before waiting fo r anyone to a nswer his kno ck and knew his way around the h o me. H aunschild testified tha t Montgomery app eared to be aware of what was ha ppening during the drug sale. Detective Haunschild further testified that , on July 7, while Hester was attempting to proc ure a quarter of an ounce of methamphet a mine for Haunschild, he spoke to Montgomery on the phone and
ot herwise indicated that Mont gomery w as a potential source for obtaining the drugs. Montgomery later offered to obt ain the drugs Haunschild wanted to purch ase , but the deal was neve r completed because Montgomery wanted
Hau nschild to provi de the money before receiving the drugs and Haunschild would not agree to that arrangement. Hester further argues that no othe r physical evidence, such as “ ledgers or notebo oks with numbers or deals ” or “ marked money , ” indicated that Hester was working in com

bination with Laf

renz and Montgomery. S uch evidence is not required. Rather, the S tate must provide evidence of Hester ’ s “i ntent to establish, maintain, or participate in a combination or in the p rofits of a combination ” by committ ing the offense of delivery of a c ontrolle d substance “ as part of a23

collaboration of three or more people ”

— here, specifically with Lafrenz and Montg omery

— working together “ in a continuing course of criminal activities

. ” Se e T EX
. P ENAL C ODE § 71.02(a); O ’ Brien , 544 S.W.3d at 391. The State could
pr ov e these elements through c ircumstantial evidence , and the jury was permitted to make reasonable inferenc es from the ev idenc e prese n ted at trial in esta blishing
Hester ’ s guilt. 2 S ee Hooper , 214 S.W .3 d at 14

– 15

. Accordingly, we conclude that a rational jur y could have determined beyond a reasonable doubt that Hester engaged in organized criminal activity. See See T EX
. P E NAL C ODE § 71.02( a ) ; J acks on , 443 U. S. at 319

. We overrule Hest er ’ s second issue.

2 Hester also argues that the State ’ s ins ufficient evidence was “ bolstered ” by a mi sleading argument m ade by th e S tate during closing statements. During closing arguments , the State mistakenly referred to text messages as having been e x chang ed betwe en Hester and Montgomery, rather than between D etective Haunschild and Mon tgomery. H ester ’ s counsel, however, failed to object to this statement by the State, and, thus, any error with regard to this statement is waived. See T EX
. R. A PP
. P . 33.1( a)

. And in light of the other e vidence recounted above, including D etective H aunschild ’ s testimony clearly identi fying t he text messages as having been e xchanged between him self and Montgomery, we conclu de that this one stat ement during closing arguments doe s not unde rmine our conclu sion that a rational jury could hav e fou nd the e ssential elements of the offense beyond a re asonable doubt. See Ja ckson v. Virginia , 443 U.S. 307, 319 (1979)

.24 C onclusion We affirm th e judgment of the trial c ourt.

Richard Hightower Justice Panel consists of J ustices Kelly, Hig htower, and Countiss.
P ublis h. T EX
. R. A PP
. P. 47.2(b).