Opinion filed February 4, 2021

In The

Eleventh Court of Appeals __________

No. 11-19-00060-CR

__________

STACIE MICHELLE MOORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR25374

M E M O R A N D U M O P I N I O N

Appellant, Stacie Michelle Moore, was indicted for the second-degree felony 

offense of delivery of a controlled substance in a drug-free zone. The jury convicted 

Appellant and assessed her punishment at fifteen years’ imprisonment in the 

Institutional Division of the Texas Department of Criminal Justice and a $1,000 fine. 

The trial court sentenced Appellant accordingly. In two issues, Appellant challenges

the sufficiency of the evidence to support her conviction and argues that the trial 
2

court committed reversible error when it admitted evidence of an extraneous offense 

during the guilt/innocence phase of the trial. We affirm. 

I. Factual Background

In August 2016, Joe Aaron Taylor, a narcotics detective with the Brownwood 

Police Department, began investigating the distribution of methamphetamine by 

Brittany McDonough after receiving information of McDonough’s involvement in 

the distribution of methamphetamine. Detective Taylor had used confidential 

informants to make controlled buys from McDonough on two occasions. On August 

16, 2016, Dennis Bradley, a confidential informant, arranged to purchase 1.75 grams 

of methamphetamine for $120 from McDonough at her apartment in Brownwood. 

Before Bradley proceeded to the residence, Detective Taylor searched Bradley, gave 

him $120, and equipped Bradley with the necessary audio and video recording 

devices.

When Bradley first arrived at McDonough’s residence, she was not present. 

McDonough arrived approximately five minutes later and called her mother, 

Appellant, who lived next door. McDonough told Bradley that she had given 

Appellant “[her] stuff.” She then asked Appellant to bring “that” to McDonough’s 

apartment. Bradley testified that, upon entering the apartment, Appellant said: “Here 

it is.” Appellant then handed McDonough a “brown plastic bag” that Appellant 

produced from under a red cloth. McDonough then weighed a white substance on a 

scale, put it back in the same little bag, and sold that bag to Bradley for $120. 

Bradley testified that, after the sale, he returned to Detective Taylor’s vehicle for a 

debriefing and to produce the drugs that had been purchased. The bag that Bradley 

purchased from McDonough contained 1.63 grams of methamphetamine. 

Detective Taylor testified about a previous controlled buy that occurred at the 

same location on August 12, 2016, whereby a different confidential informant, 
3

Amber Talamantez, was used. Detective Taylor testified that McDonough was not

present during this transaction, even though the controlled buy occurred at her 

residence. Talamantez’s interactions, which were also audio and video recorded, 

were solely with Appellant. Detective Taylor testified that the same controlled-buy

procedure was used with the Talamantez and Bradley transactions, except that

Appellant, acting on behalf of McDonough, sold Talamantez a package containing 

1.38 grams of methamphetamine. 

McDonough testified that she was the dealer in the transactions with Bradley 

and Talamantez. McDonough further claimed to be solely responsible for what 

occurred during these transactions and that Appellant was not involved in the 

distribution or possession of the methamphetamine in either transaction. According 

to McDonough, Appellant’s presence during the transaction with Bradley was 

merely to distract him while McDonough retrieved the methamphetamine from a 

barbecue pit outside the home. 

II. Sufficiency of the Evidence 

A. Standard of Review 

In Appellant’s first issue, she challenges the sufficiency of the evidence 

supporting her conviction. We review a challenge to the sufficiency of the evidence, 

regardless of whether it is framed as a legal or factual sufficiency challenge, under 

the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). 

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 

S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson 

standard, we review all of the evidence in the light most favorable to the verdict and 

determine whether any rational trier of fact could have found the essential elements 

of the charged offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; 
4

Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018); Isassi v. State, 330 

S.W.3d 633, 638 (Tex. Crim. App. 2010). 

Viewing the evidence in the light most favorable to the verdict requires that 

we consider all the evidence admitted at trial, including improperly admitted 

evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. 

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As such, we defer to the 

factfinder’s credibility and weight determinations because the factfinder is the sole 

judge of the witnesses’ credibility and the weight their testimony is to be afforded. 

Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is 

deferential and accounts for the factfinder’s duty to resolve conflicts in the 

testimony, to weigh the evidence, and to draw reasonable inferences from the facts. 

Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778. 

We may not reevaluate the weight and credibility of the evidence to substitute our 

judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. 

Crim. App. 1999). Therefore, if the record supports conflicting inferences, we 

presume that the factfinder resolved the conflicts in favor of the verdict, and we defer 

to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 516, 

525–26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.

B. Analysis

A person commits an offense if she knowingly delivers a controlled substance. 

TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2017). “Delivery” means 

to actually or constructively transfer a controlled substance to another. Id. at 

§ 481.002(8) (West Supp. 2020). Appellant asserts that there is no evidence of an 

actual delivery of methamphetamine from Appellant to Bradley on August 16, 2016. 

Appellant further claims that the only evidence of a constructive delivery was 

Bradley’s testimony that he saw Appellant remove a bag from under a red cloth and 
5

give it to McDonough after Appellant arrived at McDonough’s residence. 

According to McDonough, Appellant’s presence was to distract Bradley while

McDonough retrieved the methamphetamine from a barbecue pit outside the 

residence. Appellant claims that the video recording of the transaction is of poor 

quality and never shows a clear transfer of a bag from Appellant to McDonough. As 

such, Appellant contends that the evidence of constructive transfer is based solely 

on the insufficient and uncorroborated testimony of the State’s confidential 

informant, Bradley. 

In Cook v. State, we addressed the corroboration requirement for the 

testimony of a covert agent. 460 S.W.3d 703, 708–10 (Tex. App.—Eastland 2015, 

no pet.). Article 38.141 of the Texas Code of Criminal Procedure is the covert agent 

rule. See TEX. CODE CRIM. PROC. ANN. art. 38.141 (West 2005). The standard for 

evaluating the sufficiency of the corroboration of a covert agent’s testimony and an 

accomplice witness’s testimony is the same. Malone v. State, 253 S.W.3d 253, 256–

58 (Tex. Crim. App. 2008); Cook, 460 S.W.3d at 708. Thus, when weighing the 

sufficiency of corroborating evidence under Article 38.141(a), we must exclude the 

testimony of the covert agent from consideration and examine the remaining 

evidence to determine whether there is evidence in the record that tends to connect 

the defendant to the commission of the charged offense. Malone, 253 S.W.3d at 

258; Cook, 460 S.W.3d at 708. The “tends-to-connect” standard does not present a 

high threshold. Cook, 460 S.W.3d at 708–09 (citing Randall v. State, 218 S.W.3d 

884, 886 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Cantelon v. State, 85 

S.W.3d 457, 461 (Tex. App.—Austin 2002, no pet.)). 

Standing alone, the corroborating evidence need not prove the defendant’s 

guilt beyond a reasonable doubt. Malone, 253 S.W.3d at 257; Cook, 460 S.W.3d at 

709. To be sufficient, the corroborating evidence must show more than just the 
6

“mere presence” of the defendant at or near the scene of the crime. Malone, 253 

S.W.3d at 257; Cook, 460 S.W.3d at 709. The corroborating evidence need not 

directly link the defendant to the crime. Cook, 460 S.W.3d at 709; Taylor v. State, 

328 S.W.3d 574, 578 (Tex. App.—Eastland 2010, pet. ref’d); Smith v. State, 211 

S.W.3d 476, 478 (Tex. App.—Amarillo 2006, no pet.). Rather, the corroborating 

evidence must only tend to connect the defendant to the charged offense. Malone, 

253 S.W.3d at 258–59; Cook, 460 S.W.3d at 709. We review the corroborating 

evidence in the light most favorable to the verdict. Cook, 460 S.W.3d at 709; Taylor, 

328 S.W.3d at 578; Smith, 211 S.W.3d at 478. 

Appellant contends that Bradley’s testimony was uncorroborated. We 

disagree. As in Cook, the State presented the audio and video recordings of the drug 

transaction depicting Bradley’s purchase of methamphetamine from McDonough. 

See Cook, 460 S.W.3d at 709–10. Prior to entering McDonough’s residence, 

Detective Taylor searched Bradley to assure that he did not have any drugs in his 

possession. McDonough is seen arriving at her residence after Bradley is inside. 

McDonough then called Appellant and asked her to “bring that over here to me.” 

Shortly thereafter, Appellant entered the residence. After Appellant handed an 

object to McDonough from under a red cloth, McDonough immediately sat down at 

a table to weigh and repackage what was later determined to be methamphetamine. 

As the finder of fact, the jury was permitted to weigh the evidence and make its own 

determinations and assessments of the images and sounds that were depicted in the

audio and video recordings. See Cook, 460 S.W.3d at 709–10 (citing Cantelon, 85 

S.W.3d at 459–62). 

We have reviewed all of the evidence in the light most favorable to the jury’s 

verdict. Here, we hold that the record before us contains sufficient evidence from 

which a rational jury could find and conclude beyond a reasonable doubt that 
7

Appellant delivered methamphetamine to Bradley. Irrespective of Bradley’s 

testimony, the corroborating evidence alone (the audio and video recordings) tends

to connect Appellant to the transaction, and the jury could have so concluded. 

Moreover, because Bradley’s testimony was corroborated, the jury could consider 

his testimony in the same manner as any other competent evidence. See Castillo v. 

State, 517 S.W.3d 363, 376 (Tex. App.—Eastland 2017, pet. ref’d) (citing Herron v. 

State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002)). 

We note that, with respect to the evidence Appellant asserts is conflicting, 

namely Bradley and McDonough’s testimony, the applicable standard of review 

requires that we presume the jury resolved the conflicts in favor of the verdict, and 

we defer to the jury’s determination on this issue. See Jackson, 443 U.S. at 326; 

Clayton, 235 S.W.3d at 778. In this case, as in all cases, the jury may accept or reject 

all, some, or none of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. 

Crim. App. 2000); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, 

pet. ref’d). Assuch, it is the jury’s role to resolve conflicts in the testimony, to weigh 

the evidence, and to draw reasonable inferences from the facts. Jackson, 443 U.S.

at 319. Accordingly, because sufficient evidence supports Appellant’s conviction 

for delivery of a controlled substance as charged in the indictment, we overrule 

Appellant’s first issue.

III. Extraneous-Offense Evidence

A. Standard of Review

In Appellant’s second issue, she challenges the trial court’s decision to admit 

extraneous evidence of a prior controlled-buy transaction whereby Talamantez

purchased methamphetamine from Appellant. We review the trial court’s decision 

to admit or exclude evidence under an abuse of discretion standard. Rhomer v. State, 

569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Coble v. State, 330 S.W.3d 253, 272 
8

(Tex. Crim. App. 2010); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 

2010). This standard of review also applies to a trial court’s decision to admit or 

exclude extraneous-offense evidence. De La Paz v. State, 279 S.W.3d 336, 343 

(Tex. Crim. App. 2009). We will not reverse a trial court’s decision to admit or 

exclude evidence, and there is no abuse of discretion, unless that decision lies outside 

the zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. 

Crim. App. 2018); De La Paz, 279 S.W.3d at 343–44; Martin v. State, 173 S.W.3d 

463, 467 (Tex. Crim. App. 2005). Furthermore, we will uphold a trial court’s 

evidentiary ruling if it is correct on any theory of law that finds support in the record 

and is applicable to the case. Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 

2016); Gonzalez v. State, 195 S.W.3d 114, 125–26 (Tex. Crim. App. 2006); 

Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no pet.). 

To be admissible under both Rule 404(b) and Rule 403, extraneous-offense

evidence must satisfy a two-prong test: (1) the extraneous-offense evidence must be

relevant to a fact of consequence in the case apart from its tendency to prove conduct 

in conformity with character and (2) the probative value of the evidence must not be 

substantially outweighed by unfair prejudice. See TEX. R. EVID. 403, 404(b); see 

also De La Paz, 279 S.W.3d at 343–44; Martin, 173 S.W.3d at 467. Therefore, if 

the offered evidence satisfies this two-prong test, a trial court’s ruling will normally 

be within the zone of reasonable disagreement. De La Paz, 279 S.W.3d at 344. 

B. Analysis

Appellant asserts that the trial court committed reversible error when it

admitted, over her objection, evidence of her involvement in a prior controlled-buy

transaction. Specifically, Appellant contends that, because the extraneous offense 

occurred on a different date and involved a different confidential informant under
9

different circumstances, the trial court abused its discretion when it admitted this

evidence. 

Conversely, the State argues that the extraneous evidence of Appellant’s 

involvement in the prior sale and delivery of methamphetamine was relevant and 

admissible (1) for noncharacter-conformity purposes; (2) to show Appellant’s 

knowledge, opportunity, intent, and lack of accident; and (3) to rebut Appellant’s 

defensive theory that she was in the wrong place at the wrong time, that she did not 

possess or deliver any methamphetamine, and that she did not bring or deliver 

methamphetamine to McDonough’s residence. We agree.

1. Rule 404(b) 

Rule 404(b) generally prohibits the admission of extraneous-offense evidence 

during the guilt/innocence phase of a trial to prove that a defendant committed the 

charged offense in conformity with bad character. Devoe v. State, 354 S.W.3d 457, 

469 (Tex. Crim. App. 2011) (citing TEX. R. EVID. 404(b)). However, extraneousoffense evidence may be admissible for other purposes if it has relevance apart from 

character or conformity. Id.; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App.

2003); Hernandez v. State, 426 S.W.3d 820, 825 (Tex. App.—Eastland 2014, pet. 

ref’d). Such evidence “may be admissible for another purpose, such as proving 

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). The exceptions enumerated 

under Rule 404(b) are neither mutually exclusive nor collectively exhaustive. De 

La Paz, 279 S.W.3d at 343. “‘Rule 404(b) is a rule of inclusion rather than 

exclusion.’ The rule excludes only that evidence that is offered (or will be used) 

solely for the purpose of proving bad character and hence conduct in conformity 

with that bad character.” Id. (first quoting United States v. Bowie, 232 F.3d 923, 929 
10

(D.C. Cir. 2000); then citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 

1996)). 

Here, the extraneous evidence was relevant and admissible to show 

Appellant’s knowledge, opportunity, intent, and lack of accident, and the trial court 

did not abuse its discretion when it admitted this evidence. Appellant’s prior, similar 

conduct of possessing and directly selling methamphetamine for McDonough to 

another confidential informant shows that Appellant was aware of the drug’s 

location; that she had the opportunity to, and did, possess the methamphetamine;

that she intended to participate in the transaction, delivery, and sale of 

methamphetamine; and that her presence at the location where the sale occurred was 

intended and not simply coincidental.

2. Defensive Theory Rebuttal

Rebuttal of a defensive theory is one of the permissible purposes for which 

extraneous-offense evidence may be admitted. See Williams v. State, 301 S.W.3d 

675, 687 (Tex. Crim. App. 2009); Moses, 105 S.W.3d at 626; Atnipp v. State, 517

S.W.3d 379, 392 (Tex. App.—Eastland 2017, pet. ref’d). Furthermore, extraneousoffense evidence is admissible to rebut defensive theories raised by the testimony of 

a defense witness during direct examination or a State’s witness during crossexamination. See Daggett v. State, 187 S.W.3d 444, 453–54 (Tex. Crim. App. 

2005); Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1996) (op. on reh’g). 

In this case, the extraneous evidence of Appellant’s prior, similar conduct was 

admissible to rebut the defensive theory offered by her that she was in the wrong 

place at the wrong time, that she did not possess the methamphetamine, and that she 

did not deliver the methamphetamine to McDonough’s apartment to be sold. 

Furthermore, and to her detriment, Appellant’s defensive theory strengthened the 

State’s need for presenting the extraneous evidence. Therefore, we hold that the trial 
11

court did not abuse its discretion when it determined that the extraneous evidence 

was admissible under Rule 404(b) for that purpose.

3. Rule 403/Similarity of Offense

Evidence is relevant if it has any tendency to make a fact of consequence more 

or less probable than it would be without the evidence. TEX. R. EVID. 401. Relevant 

evidence is generally admissible. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. 

App. 2009). However, even if its admissibility is not prohibited under Rule 404(b), 

evidence of a prior extraneous offense may nonetheless be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice. TEX. R.

EVID. 403. Because Rule 403 favors the admissibility of relevant evidence, it is 

presumed that relevant evidence will be “more probative than prejudicial.” 

Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh’g); 

see also De La Paz, 279 S.W.3d at 343 & n.17. The intent of Rule 403 is not to 

exclude all evidence that tends to prejudice the opponent’s case. See Davis v. State, 

329 S.W.3d 798, 806 (Tex. Crim. App. 2010). Rather, it only prevents the admission 

of evidence that promotes a jury’s decision on an improper basis. Id.; Montgomery, 

810 S.W.2d at 389. Therefore, we must determine how compelling or probative the 

evidence of Appellant’s prior, similar controlled-buy transaction is as it concerns a 

fact of consequence. Montgomery, 810 S.W.2d at 391. 

A trial court is presumed to have engaged in the required “balancing” when 

Rule 403 is invoked. Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 

1997). When performing a Rule 403 analysis, a trial court must balance: 

(1) the inherent probative force of the proffered item of evidence along 

with (2) the proponent’s need for that evidence against (3) any tendency 

of the evidence to suggest [a] decision on an improper basis, (4) any 

tendency of the evidence to confuse or distract the jury from the main 

issues, (5) any tendency of the evidence to be given undue weight by a 
12

jury that has not been equipped to evaluate the probative force of the 

evidence, and (6) the likelihood that presentation of the evidence will 

consume an inordinate amount of time or repeat evidence already 

admitted.

Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007) (citing Gigliobianco v. 

State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006)). Similarly, in reviewing 

the trial court’s determination of whether evidence should be excluded under Rule 

403, we consider the above factors and balance the claimed probative force of the 

evidence with the proponent’s need for such evidence. Henley, 493 S.W.3d at 93; 

Gigliobianco, 210 S.W.3d at 641–42.

Given the applicable presumptions and abuse-of-discretion standard of 

review, we cannot conclude that the trial court’s decision to admit the extraneous 

evidence was unreasonable. The trial court could have reasonably concluded that 

the probative value of the evidence was high and that the State’s need to present it 

was high because it allowed the State to link Appellant to the charged offense. The 

trial court could have also concluded that the State’s need to present this evidence 

increased because the State had no other means to disprove Appellant’s defensive 

theory. We do not believe that the evidence tended to confuse or distract the jury in 

an irrational way or cause the jury to make a decision on an improper basis. 

Additionally, the State’s emphasis of this evidence was limited, and the time needed 

to present the evidence was not an inordinate amount of time. 

Furthermore, the extraneous evidence challenged by Appellant involved 

remarkedly similar circumstances. Here, Appellant’s direct involvement in a similar 

controlled buy of methamphetamine with a different confidential informant that 

occurred only four days prior to the transaction in this case was probative and 

relevant apart from character conformity; tended to refute Appellant’s defensive 

theory; and addressed the issue of her knowledge, opportunity, intent, and lack of 
13

accident. As such, evidence of a similar extraneous drug offense tends to make more 

probable an allegation that a defendant intended to deliver drugs in connection with 

the charged offense. See Mason v. State, 99 S.W.3d 652, 656 (Tex. App.—Eastland 

2003, pet. ref’d); Powell v. State, 5 S.W.3d 369, 383 (Tex. App.—Texarkana 1999, 

pet. ref’d). Such is the case here.

When we review a trial court’s ruling on the admissibility of relevant 

evidence, we must give wide latitude to the trial court, particularly in light of the 

presumption that the probative value of relevant evidence outweighs the danger of 

unfair prejudice. Montgomery, 810 S.W.2d at 389; see also De La Paz, 279 S.W.3d 

at 343 & n.17. We will reverse a trial court only upon a showing of a clear abuse of 

discretion. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (citing 

Montgomery, 810 S.W.2d at 389). We have considered the Rule 403 factors and 

conclude that the trial court did not abuse its discretion when it determined that the 

probative value of the extraneous evidence was not substantially outweighed by the 

danger of unfair prejudice to Appellant, as she suggests. The trial court properly 

balanced the State’s need for this evidence, and the record supports the trial court’s 

decision to admit this evidence under either theory addressed above. As such, the 

trial court’s ruling was not outside the “zone of reasonable disagreement.” See 

Bigby v. State, 892 S.W.2d 864, 884 (Tex. Crim. App. 1994). Accordingly, we 

overrule Appellant’s second issue.

4. Limiting Instruction

Finally, we note that the trial court included a proper limiting instruction in 

the jury charge in which the trial court addressed the jury’s use and consideration of 

any extraneous-offense evidence admitted at trial so as to mitigate any potential 

improper consideration of this evidence by the jury when it was deciding Appellant’s 

guilt. Because it is presumed that the jury follows a trial court’s instructions 
14

regarding the consideration of evidence, any potential harm is mitigated by the trial 

court’s limiting instruction. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. 

App. 2009); Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996); Garcia v. 

State, 592 S.W.3d 590, 598 (Tex. App.—Eastland 2019, no pet.); Hung Phuoc Le v. 

State, 479 S.W.3d 462, 472 (Tex. App.—Houston [14th Dist.] 2015, no pet.). 

IV. This Court’s Ruling

We affirm the judgment of the trial court.

W. STACY TROTTER

JUSTICE

February 4, 2021

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

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.