NUMBER 13-10-00138-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MELVIN JOHNSON III, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 130th District Court

of Matagorda County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Chief Justice Valdez

Appellant, Melvin Johnson III, was convicted of possession of a controlled 

substance with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 

2010). Johnson received a punishment of sixty years‘ imprisonment and a $10,000 
2

fine.1 By three issues, Johnson contends that: (1) the evidence was legally and 

factually insufficient to prove that he possessed a controlled substance with the intent to 

deliver it; and (2) the trial court abused its discretion in denying his motion to suppress 

evidence. We affirm.

I. BACKGROUND2

Deputy Jeremy Brown of the Matagorda County Sheriff‘s Department testified 

that he conducted an investigation of Johnson using confidential informants. Deputy 

Brown stated that during the course of his investigation, he identified 2928 Avenue B as 

Johnson‘s residence. Deputy Brown observed Johnson ―coming and going from the 

residence, sitting on the porch of the residence, [and] playing basketball with the child 

outside of the residence.‖3 Deputy Brown stated that during the course of a search, 

they usually look for items such as utility bills, a driver‘s license, or anything with 

identifying information inside the residence. In this case, Deputy Brown testified that 

after acquiring a search warrant and searching 2928 Avenue B, the police found 

Johnson‘s driver‘s license and ―some scattered paperwork in the back room with the 

name of Mr. Johnson on it.‖

 

1

After finding Johnson guilty of the offense, the jury found that Johnson was a repeat offender. 

See TEX. PENAL CODE ANN. § 12.42 (West Supp. 2010).

2 We note that the record reflects that Johnson ―refused‖ to sign the trial court‘s certification of 

defendant‘s right of appeal. Pursuant to rule 25.2(d), the trial court‘s certification ―shall include notice that 

the defendant has been informed of his rights concerning an appeal, as well as any right to file a pro se 

petition for discretionary review.‖ See TEX. R. APP. P. 25.2(d). Although the certification shows that 

Johnson refused to sign it, the record reflects that Johnson was notified of his rights under rule 25.2(d). 

The record also contains a letter from Johnson‘s trial counsel stating that he explained those rights to 

Johnson. Moreover, Johnson filed a timely notice of appeal, and both Johnson and the State have filed 

briefs in this case. Therefore, we conclude that rule 25.2(d)‘s requirements have been met in this case.

3 Deputy Brown testified that based on his investigation, Johnson lived at the residence with ―a 

younger child.‖
3

According to Deputy Brown, during the course of the investigation, the 

confidential informant purchased narcotics at Johnson‘s residence, and based on that 

information, Deputy Brown obtained a warrant to search Johnson‘s residence for 

narcotics. Deputy Brown testified that a SWAT team was used to effectuate the search 

warrant. Deputy Brown stated that the role of the SWAT team was to make entry into 

the house and to secure the residence from any potential threats. Deputy Brown 

assisted the SWAT team ―with the control outside . . . the house.‖ Deputy Brown 

testified that Johnson was present in the residence when entry was made and that no 

one else was present inside the residence. Johnson‘s son was outside playing 

basketball when the team made entry into the residence.

After the residence was secure, Deputy Brown executed the search warrant. 

According to Deputy Brown, the police found ―some crack cocaine in the pocket of a 

jacket that was hanging on a door separating the living room from the bedroom.‖4 

Deputy Brown stated that the crack cocaine was ―in the front pocket of the jacket where 

your hands go.‖ Deputy Brown explained that there were two ―rocks‖ of crack cocaine 

that were ―loose,‖ meaning that the pieces were not in any type of packaging. Deputy 

Brown documented that the crack cocaine weighed over one gram and less than four 

grams.

Deputy Brown testified that in cases of possession of crack cocaine, as opposed 

to cases of intent to deliver, the police usually find paraphernalia that is used to ingest 

the drugs, such as a crack pipe made of glass or a type of metal, brillo steel wool, and 

needles. Deputy Brown stated that he has also observed that in cases of possession 

 

4 Deputy Brown described the residence as as follows: ―It was a wood frame, one bedroom. 

Basically, had a bedroom, bathroom, living room, and kitchen. That was basically it.‖
4

with intent to deliver, the police find larger amounts of the drug. Deputy Brown stated, 

―A user in my past—as a user, as soon as they get their hands on [the drug], they‘re 

going to ingest it as soon as they can. There‘s not going to be amounts of crack 

cocaine throughout the residence.‖

According to Deputy Brown, to make crack, powder cocaine is ―cooked down into 

a rock form‖ which is usually ―a round circle‖ called a ―cookie‖ that reminded Deputy 

Brown of a sugar cookie. This cookie is then ―broke[n] down into denominations to what 

it‘s going to be sold to the potential buyers.‖ Deputy Brown stated that users will have 

small amounts of the drug while dealers have larger quantities and the amounts sold by 

drug dealers are ―[a]nywhere from $5 to, you know [$]50, a hundred. You know around 

here, we see a lot of 10-and 20-dollar amounts sold.‖ Deputy Brown testified that a 20-

dollar amount of crack cocaine is ―just a real small, small quantity, small rock for $20. 

Definitely less than a gram.‖ Deputy Brown agreed that crack cocaine would not be 

sold in the amount found in the residence and that amount would have to be ―broken 

down‖ into smaller pieces. According to Deputy Brown, the amount of crack cocaine 

found in the residence was valued ―[b]etween [$]150 and $200 worth of crack.‖ On 

cross-examination, Deputy Brown explained Johnson‘s intent to deliver the crack 

cocaine was shown by the amount of the drug that was found in his residence, among 

other things. Deputy Johnson stated, ―That‘s not a quantity for a user. . . . I‘ve never 

seen a crack pipe that you can put that type of—or that size of rock cocaine in.‖

According to Deputy Brown, they did not find any drug paraphernalia, such as 

brillo, a pipe, tubing, or needles. When asked if he found ―anything that suggested to 

[him] that cocaine was being used in that residence,‖ Deputy Brown replied, ―no, 
5

ma‘am.‖ Deputy Brown acknowledged that they did not find any money, packaging, or 

scales during the search. However, Deputy Brown explained that it is ―very common‖ 

for crack to be sold without any packaging and usually crack cocaine in this amount is 

sold by size and not by weight. When asked if someone could sell crack cocaine 

without scales, cooking implements, or packaging, Deputy Brown responded, ―Oh, yes, 

ma‘am.‖

Sergeant James Nesbitt of the Matagorda County Sheriff‘s Narcotics Division 

testified that ―mid[-]level dealer[s]‖ are not usually manufacturers of crack cocaine—they 

are not involved in ―cooking the dope.‖ Instead, the mid-level dealers purchase the 

crack cocaine from someone else who may have manufactured the drug. These 

manufacturers are also considered drug dealers. According to Sergeant Nesbitt, 

powder cocaine is cooked into ―a circle of crack‖ called a ―cookie.‖ The cookie is formed 

―[u]sually from the jars and stuff that it‘s made in.‖ Sergeant Nesbitt stated that once the 

cookie is made ―[f]rom that it‘s cut up to either halves or quarters or either sold as a 

cookie and then it goes down to the [$]10, 20-dollar rocks.‖ Sergeant Nesbitt agreed 

that the mid-level drug dealer would not have any manufacturing and packaging 

material ―if he‘s already buying it premade.‖ Sergeant Nesbitt agreed that the crack 

cocaine found in the residence was consistent with what a mid-level dealer might have 

in his possession. According to Sergeant Nesbitt, the larger pieces of the crack cocaine 

would be divided into smaller pieces worth five dollars to one hundred dollars 

―depending on the user that goes to purchase.‖ Sergeant Nesbitt explained that the 

crack could be broken with fingernails or thumbnails, ―anything like that.‖ Sergeant 

Nesbitt testified that the two pieces of crack cocaine found in the residence could not be 
6

smoked in a crack pipe and would have to be ―broken down‖ if one wanted to smoke 

them. In other words, the pieces of crack cocaine found were not ―in user form.‖

Sergeant Nesbitt testified that he conducted surveillance of Johnson before the 

warrant to search the residence was issued. During the surveillance, Sergeant Nesbitt 

observed ―people come to the house, stay there for a minute or two, or maybe 

sometimes a little longer, and then get back out and leave.‖ When asked if he saw 

―very many people do that,‖ Sergeant Nesbitt replied, ―Yes, sir.‖ Sergeant Nesbitt 

acknowledged that he did not know what these people were doing at the residence; 

however, he stated that based on his experience he grew suspicious of the activity. 

Sergeant Nesbitt said that based on the fact that so many people were ―in and out so 

fast,‖ he believed that narcotic deals were occurring.

Sergeant Nesbitt stated that the amount of crack cocaine found in the residence 

was worth approximately ―anywhere from [$]150 to $200.‖ Therefore, 1.3 grams could 

be broken down into twenty rocks and sold for $10 per rock. Sergeant Nesbitt agreed 

that he had ―dealt with some of the crack heads‖ in Matagorda County and Bay City. 

Sergeant Nesbitt stated that he saw some of the ―crack heads‖ spend one or two 

minutes at Johnson‘s residence during his surveillance. Sergeant Nesbitt testified that 

he did not believe that a ―crack head‖ would go to Johnson‘s residence and hide their 

―dope‖ at his house and then leave because a ―crack head‖ would use the drug. In his 

experience, drug dealers usually hide their drugs so that it will not be stolen or found by 

the police. Sergeant Nesbitt did not have any reason to believe that the crack cocaine 

found in the residence belonged to anyone but Johnson.
7

Officer Theresa Mendoza, the ―I.D. Officer‖ for the Matagorda County Sheriff‘s 

Office, testified that her job duties include processing crime scenes and maintaining 

care, custody, and control of all evidence or property that is received by the sheriff‘s 

office. This includes maintaining the evidence lockers at the sheriff‘s department. She 

explained that an officer who obtains evidence will deposit the evidence into an 

evidence locker and then Officer Mendoza locks the locker. No one except Officer 

Mendoza can access the evidence once it is in the locker because she is the only 

person who has a key to those lockers. If an officer requests that the evidence be sent 

to the lab for testing, Officer Mendoza packages it and then transports that evidence to 

the lab and drops it off for analysis. Officer Mendoza transports drugs to the 

Department of Public Safety‘s lab in Houston, Texas. The lab then analyzes the drugs 

and generates a report that is sent to Officer Mendoza‘s agency. Officer Mendoza 

keeps a copy of the report for her files and provides a copy to the investigating officer. 

Officer Mendoza then picks up the evidence from the lab.

Officer Mendoza testified that Deputy Brown submitted some evidence for testing 

in Johnson‘s case. Officer Mendoza testified that she transported the substance to the 

Department of Public Safety for analysis. The State offered State‘s exhibits 1, 2, and 6

into evidence. Defense counsel stated, ―Your Honor, there will be no objections to 

[e]xhibits 1, 2, and 6.‖ Officer Mendoza described exhibit 1 as the substance found in 

Johnson‘s residence, exhibit 2 as a report generated by the lab concerning the 

substance found, and exhibit 6 as the ―book-in information‖ related to Johnson‘s case. 

The trial court admitted the three exhibits into evidence. Officer Mendoza testified that 

the lab report showed that State‘s exhibit 1 contained 1.30 grams of cocaine. Officer 
8

Mendoza agreed that the ―book-in sheet‖ showed that Johnson provided 2928 Avenue 

B as his address.

II. LEGAL SUFFICIENCY

By his first and second issues, Johnson contends that the evidence is legally and 

factually insufficient to prove that he possessed a controlled substance with the intent to 

deliver it. Johnson argues that the State failed to establish beyond a reasonable doubt 

that he either knowingly possessed or knowingly intended to deliver the cocaine in an 

amount more than one gram but less than four grams.

A. Standard of Review and Applicable Law

The court of criminal appeals has held that there is ―no meaningful distinction between 

the Jackson v. Virginia legal sufficiency standard and the Clewis factual-sufficiency 

standard‖ and that the Jackson standard ―is the only standard that a reviewing court 

should apply in determining whether the evidence is sufficient to support each element 

of a criminal offense that the State is required to prove beyond a reasonable doubt.‖

Brooks v. State, 323 S.W.3d 893, 902-03, 912 (Tex. Crim. App. 2010) (plurality op.). 

Accordingly, we review Johnson‘s claims of evidentiary sufficiency under ―a rigorous 

and proper application‖ of the Jackson standard of review. Id. at 906-07, 912. 

Moreover, we do not refer separately to legal or factual sufficiency and will only analyze 

Johnson‘s issues under the Jackson standard. See id. at 985 (concluding that there is 

no meaningful distinction between a legal and factual sufficiency analysis).

Under the Jackson standard, ―the relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt.‖ Jackson v. 
9

Virginia, 443 U.S. 307, 319 (1979); see Brooks, 323 S.W.3d at 898-99 (explaining that 

in the Jackson standard we consider ―all of the evidence in the light most favorable to 

the verdict,‖ and determine whether the jury was rationally justified in finding guilt 

beyond a reasonable doubt). ―[T]he fact[-]finder's role as weigher of the evidence is 

preserved through a legal conclusion that upon judicial review all of the evidence is to 

be considered in the light most favorable to the prosecution.‖ Jackson, 443 U.S. at 319 

(emphasis in original); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979) 

(―The jury, in all cases is the exclusive judge of facts proved and the weight to be given 

to the testimony . . . .‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) 

(―The jury is the exclusive judge of the credibility of witnesses and of the weight to be 

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in 

the evidence.‖).

We measure the legal sufficiency of the evidence by the elements of the offense 

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 

314 (Tex. App.–Corpus Christi 2004, pet. ref‘d) (citing Malik v. State, 953 S.W.2d 234, 

240 (Tex. Crim. App. 1997)). The elements of the offense of possession of a controlled 

substance with the intent to deliver are that the defendant: (1) possessed a controlled 

substance in the amount alleged; (2) intended to deliver the controlled substance to 

another; and (3) knew that the substance in his possession was a controlled substance. 

Figueroa v. State, 250 S.W.3d 490, 500 (Tex. App.–Austin 2008, pet. ref‘d).

B. Possession

To prove unlawful possession, the State must have presented sufficient evidence 

that Johnson exercised control, management, or care over the substance and that he 
10

knew the item possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 

(Tex. Crim. App. 2005). ―Whether this evidence is direct or circumstantial,  ̳it must 

establish, to the requisite level of confidence, that the accused‘s connection with the 

drug was more than just fortuitous. This is the whole of the so-called  ̳affirmative links‘

rule.‘‖ Id. at 405-06 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 

1995)). This rule has been established to protect an innocent bystander from conviction 

based solely upon his fortuitous proximity to someone else‘s drugs. Id. at 406. In other 

words, a roommate, spouse, or relative may jointly possess a house but not necessarily 

possess the contraband. Id. Thus, ―when the accused is not in exclusive possession of 

the place where the 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.

Texas courts have recognized as sufficient to establish a person‘s possession of 

contraband a non-exclusive list of possible ―affirmative links,‖ considered either singly or 

in combination.

5

 Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) 

(discussing ―affirmative links,‖ which is legal jargon for the large variety of circumstantial 

evidence that may establish a knowing possession of contraband); Roberts v. State, 

321 S.W.3d 545, 549 (Tex. App.–Houston [14th Dist.] 2010, no pet.) (―[P]resence or 

 

5

The court of criminal appeals has considered, among other things, the following factors: (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. Evans 

v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).
11

proximity combined with other direct or circumstantial evidence (e.g.  ̳links‘) may be 

sufficient to establish the elements of possession beyond a reasonable doubt.‖).

However, the affirmative link terminology does not constitute a unique 

legal rule, but is only a shorthand way of expressing what must be proven 

to establish that drugs were possessed knowingly or intentionally. Indeed, 

the number of linking factors present is not as important as the ―logical 

force‖ they create to prove that the crime was committed.

Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.–Houston [1st Dist.] 2002, pet. ref‘d)

(internal citations omitted).

Here, the State presented evidence that Johnson lived at 2928 Avenue B with his 

son.6 Deputy Brown testified that he found Johnson‘s license and other paper work at 

the residence and that he determined this was Johnson‘s residence because he 

observed Johnson ―coming and going from the residence, sitting on the porch of the 

residence, [and] playing basketball with the child outside of the residence.‖ 

Furthermore, Johnson indicated on his ―book-in sheet‖ that 2928 Avenue B was his 

address.

Deputy Brown testified that as a narcotics investigator, he often relies on 

confidential informants to purchase drugs from a drug dealer in order to acquire a 

search warrant of the premises. In those cases, Deputy Brown does not arrest the 

dealer for making the sale to the confidential informant, but merely uses that information 

to get the warrant. In this case, during his investigation of Johnson, Deputy Brown 

utilized a confidential informant to acquire the search warrant of Johnson‘s residence. 

Deputy Brown testified that the confidential informant made narcotics purchases at 

 

6

In his brief Johnson appears to assert that others were present when the search warrant was 

executed; however, Johnson points to no evidence in the record that anyone else was present in the 

residence when police searched it, and we find none. Moreover, both officers who were present during 

the search testified that Johnson was alone in the residence when they executed the warrant. No one 

else who was present during the search testified.
12

Johnson‘s residence. Based on this activity, Deputy Brown acquired a warrant to 

search the residence.

During the search, Deputy Brown found two pieces of crack cocaine in a hooded 

jacket hanging on the door of the only bedroom in the residence. Johnson was alone in 

the residence. When asked if he found ―anything that suggested that the juvenile was 

involved‖ in the selling of the narcotics, Deputy Brown replied, ―No.‖ Deputy Brown 

agreed that all of the information he had and that his surveillance ―reflected upon‖ 

Johnson.

On cross-examination, Deputy Brown stated that during his investigation using 

the confidential informant, ―every time [they] went to [Johnson‘s] house there was 

narcotics at the house . . . basically from the informant standpoint.‖ Deputy Brown also 

reiterated that Johnson was the only person living at that residence that he suspected 

had narcotics. Deputy Brown did not suspect that anyone else living at that residence 

had narcotics. Deputy Brown also acknowledged that he informed the magistrate 

before acquiring the warrant that there was ―a lot of traffic coming in and out‖ of the 

residence.

Sergeant Nesbitt testified that during his surveillance of Johnson‘s residence, he 

saw a lot of ―people come to the house, stay there for a minute or two, or maybe 

sometimes a little longer, and then get back out and leave.‖ Based on this information 

and his training and experience, Sergeant Nesbitt believed that narcotic deals were 

being conducted at Johnson‘s residence. Sergeant Nesbitt testified that during his 

surveillance, he observed known ―crack heads‖—people who are addicted to crack 

cocaine—going to Johnson‘s residence and spending one or two minutes there. 
13

Sergeant Nesbitt also stated that ―crack heads‖ would not hide their drugs in Johnson‘s 

residence because a ―crack head‖ would use the drugs. Sergeant Nesbitt stated that 

along with Deputy Brown‘s investigation and his surveillance, a warrant was issued to 

search Johnson‘s house. When asked if his investigation gave him any reason to 

believe that Johnson‘s son was involved in the drug transactions he observed, Sergeant 

Nesbitt stated, ―No, sir.‖ Sergeant Nesbitt also stated that based on his investigation 

and surveillance, he did not believe that anyone other than Johnson was involved in 

selling narcotics at this location.

In Poindexter v. State, the court of criminal appeals held that an out-of-court 

statement of a confidential informant that he bought drugs from appellant was sufficient 

to establish an affirmative link between appellant and the crack cocaine found in his 

home.7 153 S.W.3d at 409. Here, we have both Deputy Brown‘s and Sergeant 

Nesbitt‘s testimony that a confidential informant bought drugs from Johnson at his 

residence. See id. This factor alone is enough to link Johnson to the crack cocaine 

found in his residence. See id. Furthermore, the crack cocaine was accessible only to 

one who exercised control over the residence, and both officers testified that they did 

not believe Johnson‘s son—the only other person residing at the residence—was in any 

way connected to the drugs. See id. Next, the evidence showed that Johnson was the 

owner of the premises where the crack cocaine was found. See id. Further, because 

Johnson lived at the residence where the contraband was found, the contraband was 

certainly more accessible to him than to someone who did not reside there; and, again 

based on their investigations, both officers stated that Johnson‘s son was not involved 

 

7

In Poindexter, the appellant was not home when the officers found the drugs. 153 S.W.3d 402, 

405 (Tex. Crim. App. 2005).
14

in the sale of drugs at this residence. See id. Thus, the State presented sufficient 

evidence that Johnson exercised control, management, or care over the substance 

found in his residence. See Poindexter, 153 S.W.3d at 405. Viewing the evidence in 

the light most favorable to the prosecution, we conclude that a rational trier of fact could 

have found that Johnson knowingly possessed the crack cocaine beyond a reasonable 

doubt.‖ See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 898-99. We overrule 

Johnson‘s first issue.

C. Intent to Deliver

Intent to deliver may be established by expert testimony, such as testimony from 

an experienced law enforcement officer, and circumstantial evidence. Moreno v. State, 

195 S.W.3d 321, 325-26 (Tex. App.–Houston [14th Dist.] 2006, pet. ref‘d); Ingram v. 

State, 124 S.W.3d 672, 675 (Tex. App.–Eastland 2003, no pet.). ―Inferences can be 

made from the conduct of the defendant as well as the amount of the controlled 

substance possessed and the manner in which it was possessed.‖ Ingram, 124 S.W.3d 

at 675-76. Some circumstantial factors to consider are: ―(1) the nature of the location 

at which the accused was arrested; (2) the quantity of contraband in the accused‘s 

possession; (3) the manner of packaging; (4) the presence or lack thereof of drug 

paraphernalia (for either use or sale); (5) the accused‘s possession of large amounts of 

cash; and (6) the accused‘s status as a drug user.‖ Moreno, 195 S.W.3d at 325-26; 

Erskine v. State, 191 S.W.3d 374, 380 (Tex. App.–Waco 2006, no pet.). The number of 

factors present is not as important as the logical force the factors have in proving the 

elements of the offense. Moreno, 195 S.W.3d at 326. Intent is a question of fact that is 

determined by the trier of fact. Ingram, 124 S.W.3d at 676. ―Intent can be inferred from 
15

the acts, words, and conduct of the accused.‖ Moreno, 195 S.W.3d at 326 (citing 

Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995)).

Here, Sergeant Nesbitt testified that he observed ―crack heads‖ and other 

individuals go to Johnson‘s residence and stay for only one or two minutes and then 

leave. Deputy Brown testified that according to the confidential informant, every time 

they went to Johnson‘s residence, there were drugs. The evidence showed that a 

warrant was issued after the confidential informant purchased drugs at Johnson‘s 

residence, and both officers testified that, based on their investigations, Johnson‘s son 

was not involved in selling drugs.

Sergeant Nesbitt testified that a mid-level dealer will usually have crack cocaine 

in larger quantities for sales purposes, whereas users, ―as soon as they get their hands 

on [the drugs], they‘re going to ingest it as soon as they can.‖ The evidence showed 

that none of the tools necessary for ingesting crack cocaine were found in Johnson‘s 

residence, which according to Deputy Brown indicated that Johnson was not a user of 

the drug.

Sergeant Nesbitt stated that a factor he considered as showing that Johnson 

intended to deliver the cocaine was the quantity found. He stated, ―That‘s not a quantity 

for a user. . . . I‘ve never seen a crack pipe that you can put that type of—or that size of 

rock cocaine in.‖ According to Sergeant Nesbitt, the quantity of crack cocaine found 

would need to be ―broken down for the user,‖ and it is ―normal‖ for a mid-level dealer to 

break down a larger piece of crack cocaine in order to sell the smaller pieces usually for 

five, ten, or twenty dollars. Sergeant Nesbitt stated that it is also normal for mid-level 
16

drug dealers to keep larger pieces of crack cocaine because they will wait to break off a 

piece of the crack cocaine until the user requests a certain amount.

Viewing the evidence in a light most favorable to the jury's verdict, we find that 

the evidence was sufficient for the jury to have determined beyond a reasonable doubt 

that Johnson possessed the crack cocaine with the intent to deliver. See Jackson, 443 

U.S. at 319; Brooks, 323 S.W.3d at 898-99. We overrule Johnson‘s second issue.

III. MOTION TO SUPPRESS

By his third issue, Johnson contends that the trial court abused its discretion by 

denying his motion to suppress evidence—the crack cocaine. Specifically, Johnson 

argues that the affidavit submitted in support of the search warrant issued in this case 

did ―not set forth facts sufficient to establish probable cause that (1) a specific offense 

has been committed, (2) specifically described property or items to be searched for and 

seized constitute evidence of the offense, and (3) the property or items constituting such 

evidence are located at the particular place to be searched.‖

It is well-settled that when a pre-trial motion to suppress evidence is overruled, 

the defendant is not required to subsequently object at trial to the same evidence in 

order to preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. 

App. 1986); Thomas v. State, 312 S.W.3d 732, 736 (Tex. App.–Houston [1st Dist.] 

2009, pet. ref‘d); Adams v. State, 180 S.W.3d 386, 406 n.29 (Tex. App.–Corpus Christi 

2005, no pet.) (citing Wilson v. State, 857 S.W.2d 90, 93 (Tex. App.–Corpus Christi 

1993, pet. denied)). ―However, when the defendant affirmatively asserts during trial that 

he has  ̳no objection‘ to the admission of the complained of evidence, he waives any 
17

error in the admission of the evidence despite the pre-trial ruling.‖ Moraguez, 701 

S.W.2d at 904; Thomas, 312 S.W.3d at 736; Adams, 180 S.W.3d at 406 n.29.

Here, the record reflects that Johnson obtained an adverse ruling on his pretrial 

motion to suppress the crack cocaine. However, when the State offered the offending 

evidence during trial, Johnson‘s trial counsel stated, ―There will be no objections to [the 

State‘s exhibits, including the crack cocaine].‖ Because Johnson affirmatively asserted 

that he had no objection to the offending evidence, he has waived any error in the 

admission of the evidence despite the pre-trial ruling. See Moraguez, 701 S.W.2d at 

904; Thomas, 312 S.W.3d at 736; Adams, 180 S.W.3d at 406 n.29. Accordingly, we 

overrule Johnson‘s third issue.

IV. CONCLUSION

We affirm the trial court‘s judgment.

____________________

ROGELIO VALDEZ

Chief Justice

Do not Publish. 

TEX. R. APP. P. 47.2(b)

Delivered and filed the 

2nd day of June, 2011.