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In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-20-00110-CR 

________________

JAMES EDWARD HUNTER, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 9th District Court

Montgomery County, Texas

Trial Cause No. 19-04-05627-CR

________________________________________________________________________

MEMORANDUM OPINION

A Montgomery County grand jury indicted James Edward Hunter for 

possession with intent to deliver a controlled substance, methamphetamine, in an 

amount greater than four grams but less than 200 grams. See Tex. Health & Safety 

Code Ann. § 481.112(d). The indictment included one felony enhancement, and the 

State later filed a notice of a second felony enhancement. The jury convicted Hunter

of the first-degree felony offense, found both enhancements true, and assessed 
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punishment at thirty years of confinement in the Texas Department of Criminal 

Justice, Institutional Division. In two issues, Hunter complains the trial court 

erroneously admitted extraneous-offense evidence. We overrule both issues and 

affirm the trial court’s judgment.

I. Background

The evidence established that Deputy Trevor Potter with the Precinct 4 

Constable’s Office in Montgomery County worked as a “specialist on a narcotics 

tact unit[.]” Potter created an online Facebook alias and began communicating with 

Amanda Johnson. Deputy Potter explained that he created a Facebook post 

indicating he was looking for narcotics, and Johnson responded to the post. Deputy 

Potter and Johnson then began communicating about narcotics and pills. According 

to Potter, Johnson was trying to sell pills, but he “was looking for the harder drugs,” 

like “methamphetamine, cocaine, heroin, Ecstasy, [and] LSD[.]” Deputy Potter

contacted Johnson about obtaining methamphetamine. Johnson, in turn, contacted 

Hunter less than a minute later and relayed she had “a guy that wants a ball[.]”1, 2

Hunter responded to Johnson’s Facebook message confirming the price of the ball. 

Johnson and Potter then arranged to meet at a certain location for the transaction. 

1 Hunter and Johnson had an intimate relationship, but Hunter did not consider 

Johnson his “girlfriend.”

2 The evidence established that a “ball” of methamphetamine was usually 

about 3.5 grams.
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Potter did not have any contact with Hunter prior to the transaction, but both Hunter 

and Johnson arrived at the meeting location in the same vehicle with Hunter driving. 

Upon their arrest, officers located methamphetamine in the driver’s seat where 

Hunter had been seated.

A. Voir Dire

During voir dire, the defense questioned the panel about being “in the wrong 

place at the wrong time.” The defense asked the panel if they had ever been in the 

wrong place at the wrong time and if that meant they committed a crime.

B. Defense’s Opening Statement

During opening, the defense argued that Hunter “was giving Amanda a ride 

to do a drug deal[,]” but there was “no evidence showing that he was the supplier of 

this methamphetamine.” The defense argued that another individual named “James” 

who was “a known drug dealer,” was “the dealer and not Mr. Hunter.”

C. Trial and Defense’s Cross-Examination 

Deputy Potter testified that on April 16, 2019, Johnson messaged him, and 

between April 16 and April 18, 2019, they “were messaging back and forth... about 

narcotics.” Potter explained that the conversation started with Johnson asking him if 

he knew anyone looking for “narcos,” a term for “pills,” and moved from there to 

Johnson asking Potter if he “needed work, [which] is a street term for 

methamphetamine.” Potter testified, and Facebook records admitted at trial showed 
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that Johnson told him she had “bars” or Xanax, but she could get the “work” or 

methamphetamine, which meant she had access to someone who had 

methamphetamine. He explained that a “ball” was 3.5 grams of methamphetamine.

Evidence showed that Potter and Johnson discussed him purchasing 

methamphetamine on April 17, 2019. Likewise, the Facebook message evidence 

established that on the same date, within thirty seconds of Potter’s request for a ball,

Johnson communicated with Hunter inquiring about methamphetamine and pricing, 

and indicated that she had a customer who wanted “a ball.” Hunter responded to 

Johnson that he could supply the desired amount.

Potter testified they messaged on April 18, 2019, and he asked Johnson how 

much for a “ball” or 3.5 grams of meth. Johnson responded and told Potter a ball 

will cost $80, the same price Hunter confirmed the previous day. Potter testified that 

Johnson noted on the way to the transaction that the dealer was “geeked out” which 

meant he was strung out on drugs, probably meth, and he had been up for too many 

days.

On the way to meet Potter, Johnson messaged him that she was supplying the 

“bars” or Xanax, and the guy with her was supplying the “clear,” which testimony 

established was slang for methamphetamine. Upon identifying Johnson at the 

meeting location based on the description of the vehicle she provided to Potter, 

officers approached the vehicle and had Hunter and Johnson exit at gunpoint. Video 
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evidence of the arrest showed Hunter in the driver’s seat, and testimony established 

officers found a baggie with a clear, rock-like substance that a DPS forensic scientist 

later determined to be methamphetamine weighing 4.75 grams.

At trial, the defense’s line of questioning during cross-examination attempted 

to show that Johnson could have thrown the baggie in Hunter’s seat while officers 

had him exit the vehicle. However, the video showed that Deputy Potter had a 

weapon trained on Johnson, and she already had her hands up before Hunter left the 

vehicle. On cross-examination, the following exchanges occurred between defense 

counsel and Deputy Potter: 

Q. Okay. And there’s certain things that dealers typically carry around 

with them; is that a fair statement?

A. Yes, sir.

Q. Things like baggies, right?

A. Yes, sir.

Q. Things like scales, right?

A. Yes, sir.

Q. And high-level drug dealers, I mean, ones that are dealing a lot, they 

are usually packing, aren’t they?

A. Most of the time.

Q. Okay. Now, with regard to Mr. Hunter, you didn’t find any baggies, 

did you?

A. No, sir.

Q. You didn’t find any scales, did you?

A. No, sir.

Q. And certainly no weapons?

A. No, sir.

 . . .

Q. Now, once you found out who James was, did you ever get a warrant 

and go search where he lived?
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A. No, sir.

Q. So you don’t know what he had there?

A. No, sir.

Q. You didn’t go back there and see if he had a lab?

A. No, sir.

Q. That he had any guns?

A. No, sir.

Q. That he had any [b]aggies?

A. No, sir.

Q. That he had any scales?

A. No, sir.

Q. So how the heck do you know he’s a dealer?

A. Well, from her identifying him as the one that was bringing the clear, 

and the clear being on his side of the car.

Q. And Amanda Johnson is a dealer in Xanax bars, right?

A. Yes, sir.

Detective Eric Prado with the Criminal Investigation Division (CID) in the 

Precinct 4 Montgomery County Constable’s Office testified next. One of the 

warrants he obtained in this case was for Amanda Johnson’s Facebook records. 

Detective Prado testified the records showed a conversation between Hunter and 

Johnson on April 17, 2019, where Johnson says, “I have a guy that wants a ball[.]

... $80?” Prado explained Johnson was asking about the cost of the ball. Prado 

confirmed that Hunter responded with “Yes[.] ... That’s fine. I got that . . . Can you 

come to me?” and explained that Hunter asked if the person who wanted the ball 

was mobile and could pick it up. Prado also testified that Hunter confirmed he had 

the amount of narcotics Johnson requested. Prado testified Hunter was aware a 

narcotics transaction was occurring, because “[i]t confirms that he has the amount 
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which is a ball and the cost of it, he confirms on the cost. And then asks if the 

individual can go and get it from him.”

D. Admission of Extraneous-Offense Evidence

The evidence the State offered during Detective Prado’s testimony and the 

trial court admitted over Appellant’s objection are Hunter’s text messages regarding 

methamphetamine transactions dating back to April 7, 2019, to unknown 

individuals.

3 The messages used slang for methamphetamine, units of measuring 

methamphetamine, and discussed pricing.

II. Standard of Review

We review a trial court’s decision on the admission of evidence under Rule 

404(b) for an abuse of discretion. See Dabney v. State, 492 S.W.3d 309, 318 (Tex. 

Crim. App. 2016); De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). 

“The trial court’s ruling on whether extraneous-offense evidence was admissible to 

rebut a defensive theory should be upheld if it is within the zone of reasonable 

disagreement.” Dabney, 492 S.W.3d at 318. A trial court’s ruling is generally 

considered to fall within this zone if the evidence establishes “1) an extraneous 

transaction is relevant to a material, non-propensity issue, and 2) the probative value 

of that evidence is not substantially outweighed by the danger of unfair prejudice, 

3 The specific references in Hunter’s brief pertain to State’s exhibits 22, 26, 

27, and 29.
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confusion of the issues, or misleading of the jury.” De La Paz, 279 S.W.3d at 344. 

If a trial court’s evidentiary ruling is correct under any applicable theory of law, we 

do not disturb it even if the trial judge articulates an incorrect reason for the correct 

ruling. See id.

III. Analysis

Hunter complains regarding the admission of his text messages discussing

methamphetamine sales dating back to April 7, 2019, during the guilt/innocence 

phase of the trial. In his first issue, Hunter complains their admission was in violation 

of Texas Rule of Evidence 404(b), and in his second issue, he complains the 

probative value of the evidence is substantially outweighed by its unfair prejudice 

under Rule 403.

A. Rule 404

Generally, evidence of a crime, wrong, or other act is inadmissible to show 

bad character and that a defendant acted in conformity with that bad character. See

Tex. R. Evid. 404(b)(1). However, extraneous-offense evidence may be admissible 

for other purposes, such as proving motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, or lack of accident. See id. 404(b)(2); 

Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Extraneous-offense 

evidence is also admissible to rebut a defensive theory. See Moses, 105 S.W.3d at 

626 n.4 (noting such evidence is often admitted to rebut a defensive theory). “A 
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defensive theory may be raised through voir dire, opening statements, or crossexamination.” Donald v. State, 543 S.W.3d 466, 482 (Tex. App.—Houston [14th 

Dist.] 2018, no pet.); see also Dabney, 492 S.W.3d at 318 (opening statements and 

voir dire); Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (opening 

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

reh’g) (cross-examination).

The trial court determined the defense “opened the door” to the admission of 

Hunter’s text messages with unidentified individuals earlier in the same month as 

the charged crime discussing Hunter’s involvement with other drug transactions. We 

agree. Hunter put forth at least two defensive theories: (1) that he was in the wrong 

place at the wrong time, specifically that he just gave Johnson a ride and Johnson 

was the dealer who had another supplier in this transaction instead of Hunter; and 

(2) that Hunter was a drug user, but not a dealer. Upon its initial cross-examination 

of the deputy constable, the defense attempted to elicit testimony regarding 

generalities and typical behaviors of drug dealers, including possessing scales, 

baggies, and weapons. The defense then further questioned the deputy about whether 

the State saw any evidence of these things and specifically asked the deputy how 

they knew Hunter was a dealer in the absence of these items. This line of questioning

permitted the admission of the extraneous offense evidence to rebut the defensive 

theories that Hunter was not a drug dealer, was simply in the wrong place at the 
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wrong time, and another “James” was the methamphetamine supplier. See Dabney, 

492 S.W.3d at 318; Moses, 105 S.W.3d at 626 n.4; Ransom, 920 S.W.2d at 301. 

Further, the trial court could have reasonably determined this evidence showed 

Hunter’s knowledge and intent for being in the vehicle at the time of arrest, contrary 

to his assertion he was just giving Johnson a ride. Because the admission of this 

evidence to rebut a defensive theory fell “within the zone of reasonable 

disagreement[,]” we overrule this issue. See Dabney, 492 S.W.3d at 318.

B. Rule 403

Even if extraneous-offense evidence is admissible for some other purpose 

apart from showing character conformity, the trial court may still exclude the 

evidence if the probative value is substantially outweighed by the risk of unfair 

prejudice. See Tex. R. Evid. 403; see also Moses, 105 S.W.3d at 626. “Rule 403 

favors the admission of relevant evidence and carries a presumption that relevant 

evidence will be more probative than prejudicial.” Davis v. State, 329 S.W.3d 798, 

806 (Tex. Crim. App. 2010). We perform a Rule 403 analysis balancing the 

following factors:

(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 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 

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

evidence, and (6) the likelihood that presentation of the evidence will 
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consume an inordinate amount of time or merely repeat evidence 

already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (footnote 

omitted).

As to the first two factors, the complained-of evidence directly rebutted the 

defensive theory that Hunter did not behave like a typical dealer nor possess typical 

dealer items, so he was merely a user and not a dealer. See Garner v. State, No. 09-

15-00317-CR, 2017 WL 3298225, at *3 (Tex. App.—Beaumont Aug. 2, 2017, no 

pet.) (mem. op., not designated for publication) (concluding extraneous offenses 

were probative of whether the defendant was a drug dealer, as opposed to a mere 

consumer of methamphetamine). The evidence further tended to show Hunter’s

knowledge of drug transactions, his intent for being in the vehicle with Johnson at 

the time and place of the arrest, and whether he was “in the wrong place at the wrong 

time.” To rebut the defense’s theories, the State had a need for the evidence to show 

Hunter was more than a marginal participant in the drug trade, more than only a user, 

and this was not a case of mistaken identity. See Houston v. State, 208 S.W.3d 585, 

591 (Tex. App.—Austin 2006, no pet.) (concluding extraneous offense evidence of 

a subsequent drug transaction was properly admitted to rebut any false impression 

created during defense’s cross-examination that defendant was “only a marginal 

participant in the drug trade”). We conclude these factors weigh in favor of 

admission of the evidence.
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Although there may have been some chance the evidence would impress the 

jury in some irrational way, the fact that the complained-of messages occurred less 

than two weeks before the drug transaction at issue and discussed the sale of 

methamphetamine in similar amounts, and the trial court included an instruction in 

the court’s charge limiting the scope, the risk was likely reduced.

4 See Majors v. 

State, 554 S.W.3d 802, 809 (Tex. App.—Waco 2018, no pet.) (citing Gamboa v. 

State, 296, S.W.3d 574, 580 (Tex. Crim. App. 2009)) (presuming jury followed the 

trial court’s instruction regarding limited purpose of evidence’s admissibility and 

nothing in the record indicated it impressed the jury in an irrational yet indelible 

way). This factor weighs in favor of admissibility.

4 The jury charge contained the following instruction:

You are further instructed that if there is any evidence before you 

in this case regarding the Defendant’s committing an alleged offense or 

offenses other than the offense alleged against him in the indictment in 

this case, you cannot consider such evidence for any purpose unless you

find and believe beyond a reasonable doubt that the Defendant 

committed such other offense or offenses, if any.

You are instructed that evidence of crimes, wrongs or acts other 

than what is alleged in the indictment[] is not admissible to prove the 

character of the Defendant in order to show action in conformity with 

that character, as proof he is guilty of the offenses charged in the 

indictment[]. It may, however, be admissible for other purposes, such 

as proof of motive, opportunity, intent, preparation, plan, knowledge, 

absence of mistake or accident of the Defendant, and even then you 

may only consider the same in determining the motive, opportunity, 

intent, preparation, plan, knowledge, absence of mistake or accident of 

the Defendant, if any, in connection with the offense alleged against 

him in the indictment, and for no other purpose.
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Despite Hunter’s complaint to the contrary, the evidence did not require an 

inordinate amount of time to develop.5 This factor again weighs in favor of its 

admissibility.

On balance, we conclude there is not a “clear disparity” between the 

prejudicial impact of the evidence and its probative value. See Hammer v. State, 296 

S.W.3d 555, 568 (Tex. Crim. App. 2009) (citations omitted). The trial court’s 

admission of the text messages fell within the zone of reasonable disagreement and 

therefore, did not constitute an abuse of discretion. See Wheeler v. State, 67 S.W.3d 

879, 889 (Tex. Crim. App. 2002) (weighing 403 factors and concluding evidence of 

extraneous offense was relevant and probative value not substantially outweighed 

by danger of unfair prejudice). We overrule this issue.

IV. Conclusion

Having determined that the trial court did not abuse its discretion by admitting 

the complained-of extraneous offense evidence, we affirm the trial court’s judgment.

AFFIRMED.

 ________________________________

 CHARLES KREGER 

 Justice

 

5 The testimony regarding this evidence spanned approximately thirteen pages 

in the reporter’s record.
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Submitted on December 21, 2021

Opinion Delivered March 16, 2022

Do Not Publish

Before Golemon, C.J., Kreger and Horton, JJ.