## NO. 12

- 22

- 00268

- CR
IN THE COUR T OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAMONTE DEANDRE SHEARS , APPELLANT

V.
THE STATE OF TEXAS , APPELLEE §
§
§ APPEAL FROM THE 241ST
DISTRICT COURT
SMITH COUNTY, TEXAS

MEMORANDUM OPINION Appellant, Damonte Deandre Shears, app eals his conviction for possession with intent to deliver cocaine

. In five issues, Appellant contends that h is trial counsel rendered ineffective assistance, challenges the sufficiency of the evi dence t o support his conv iction, and alleges th e trial court erroneously admitted evidence. We affirm

. B ACKGROUND
On March 18, 2021, Texas Department of Public Safety Trooper Donald Appleman was driving through th e B u tler Colle ge area o f Ty ler, Texas, attempting to loc ate Appellant

. Appleman saw a GMC Yukon SUV that he believed to be driven by Appellant and confirmed his identi ty using law enforcement intelligence photographs. Thereafter, Appellant appeared to notice App leman f

ollowing him , stopped the SUV in the dr iveway of 2000 West Robbins S treet , exited the vehic le, and appeared to be making a call o n his cell phone. When Appleman approached , identified himself, and asked to speak with Ap pellant, Appellant f led on foot. Appellant ran through the yard on th e prope rty, jumped over a fence, and turned east into an

ea sement beside the property. Other law enforcement officers quick ly responded to the scene and secured the area. About fort y
- five minutes aft er Appellan t ’ s flight , while walking the path Appellant took , Appleman and Corporal Jonathan Peters located a clear plastic ba g containing a “ cookie ” of2

crack cocaine and a large number of pills. 1 T h e bag was located at the northeast corner of the fence surroundin g 1929 West Jackson Street , the prop ert y immed iately to the south of 2000 West Robbins. T here had been no fo ot traffic in the area b etween Appellan t ’ s flight and the discovery of the drugs , and Appleman noticed that the cocaine “ cookie ” was still wet when he fou nd the plastic bag , indicating th at it h ad been newly created

. That same day, d uri ng his investigation , Appleman viewed footage f rom a doorbell camera belonging to the owner of the hous e on 1929 West Jackson , showing Appellant runn ing ac ross the front part of the house less than one minut e after he fled from Appleman . The next day, S hakayla S hackleford, Ap pellant ’ s girlfriend and the registered owner of the Yukon SUV that Appellant had been driving, called Appleman and told him tha t she loaned her vehicle to Appellant the previo us da y. Law enforcement subsequently arrested Appellant and he was indicted by a grand ju ry for the offense of possession with intent to deliver a controlled substance, specifically cocaine , in an amount of mor e than four grams but less than 200 grams

. 2 Appellan t plead ed “ not g uilty , ” and this ma tter proceeded to a jury trial. At tria l, Appleman testified to the aforementioned detail s of his investigation , including that Appellant ’ s beh avior was consistent with a “ heat run, ” wherein criminal s in an area attempt
to determi ne whet her police are present in the area because of them

. Defens e counsel lodged a hearsay object ion to Appleman ’ s testimony regarding Shackleford ’ s telephone statement , which the trial court o verruled. Outside the jury ’ s presence, D efense counsel re
- urged a best evi dence

o bje ction to Applem an ’ s testimony regarding the doorbell camera vi deo

. The prosecution asserted that the foo tag e no longer existed, because th e video was not previously collected and the camera record ed over the footage

. The trial court overruled defense co unsel ’ s objection

. Therea fter , Appleman testif ied to what he saw on the video. Defens e counsel again objected to A ppleman’s testimony about the contents of the doorbell camera video base d on th e b est evidence rule

. T he trial court overruled this objection. Corporal Peters testified that he responded t o the scene to as sist Appleman by securi ng the area and the vehicle while App leman attempted to locate Appellant. He later accompanied Appleman to wal k the path Appleman suspected Appell ant took on foot , dur ing which they

1 The identi ty of t he “ c ookie ” was later confirmed b y laborator y testing , which showed that it con tained cocaine and weighed 13.19 grams
.

2 T EX

. H EALTH & S AFETY C ODE A NN

. § 481.112 (a), (d) (West 20 23 )

.3

located the plasti c bag containin g the co caine and pills. Peters also viewed the doorbell camera video during the investigation, and although he did not recognize Appellant because he had not seen him before, Peters testif ied that Appleman acknowledged that Appellant was the person in the video

. S hackleford testified that she was still dating Appellant and had known him for over seven years. She owned a gold GMC Yukon and she sometimes permitted Appell ant to drive it, but she could not remember whether she allo wed him to drive t h e vehicle in March 2021 . She did not remember either the poli ce contacting her because the Yukon had been towed o r speaking to App leman on th e phone . Shack le ford cited her use of antidepressants as the reason she co uld not remember these events. Thereafter, the Sta te recalled Appleman to repeat his testimony about the March 19 telephone conversation with Shackleford , to which defense counsel did not object

. Detecti ve Aneas S utton of the Texas Anti

- Gang Center testifi ed t hat prior to Mar ch 18, he provided Appleman in formation and re commen ded that he locate Appellant. Sutton also obtaine d the arrest warrant for Appellant after the events of M a rch 18. He stat ed that in his experience as a narcotics

- focused officer, the c rack co caine in the clear bag would produc e about 13 “ servin gs ” and cost anywhere from $750.00 to $1 ,300.00. The multicolored p i lls from the bag , which Sutton ’ s field test presumptively determined to be e cstasy or MDMA, weighed approximately 100 grams . Sut ton testified that each p ill would l ikely sell for around $20.00. The jury found Appellant “ guilty ” o f pos session of co caine with intent to deliver and assessed puni shment of forty

- five ye ars ’ imprisonment. This appeal follo wed. I NEFFEC TIVE A SSISTANCE OF C OUNSEL
In Appellant ’ s first , second, and third is sues , he complains that trial counsel rendered in effective assis tance by fail ing to object to hearsay ev idence and improper predicate , and to request a limiting instruction as to hearsay evidence

. Appellant further asserts that the cumulative impact of tri al co unsel ’ s erro rs denied him effective assistance of counsel. S tandard of Review and Applicable Law In reviewing an ineffective assistance of counsel claim, we follow the United State s Supreme Court ’ s two

- pronged test found in Stri ckland v. Washington , 4 66 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1 984). Herna ndez v. State , 726 S.W.2d 53, 56

- 57 (Tex. Crim. App. 1986). Under the first prong of the Strickland test, an appellant must s how that counsel ’ s4

performance was “deficient.” Strickland , 466 U.S. at 68 7, 104 S. Ct. at 2064; Tong v. State , 25 S.W.3 d 707, 712 (Tex. Crim. App. 2000). A deficient perfor mance occurs when “ counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Stri cklan d , 466 U.S. at 687, 104 S. Ct. at 2064. To b e successfu l, an appellant must show that counsel ’ s r epresentation fell below an objective standard of reasonableness. Id. , 466 U.S. at 688, 104 S. Ct. at 2064; Tong , 25 S.W.3d at 712. Under the second pron g, an appel l ant must affirmatively show that coun s e l ’ s defic ient performance prejudiced his defense. S trickland , 466 U.S. at 687, 104 S. Ct. at 2064; Mitchell v. State , 989 S.W.2d 747, 748 (Tex. Crim. App. 1999 ). The appellant must p rove that his attorney ’ s

err ors, ju dged by the totality of the represent ation and n ot by isolated instances of error, denied him a fair trial. Burruss v. State , 20 S.W .3d 179, 186 (Tex. App.

— Texarkana 2000, p et. ref ’ d). It is not enou gh for the appellant to show that the errors had some co nceivabl e effect on the outcome of th e proceedin gs ; h e must show that there is a reasonabl e probability that, but for his attorney ’ s errors, the verdict or the extent of his punishment wou ld have been less. See id. ; see also Bone v. Sta te , 77 S .W.3d 828, 8 3 7 (Tex. Crim. App. 2002)

. The a ppellant must prove both
prongs of t he Strickland test by a preponde rance of the evidence to prevail ; f ailure to make the required showing of either deficie nt performance or sufficient prejudice def eats t he ineff ectiv eness c laim. To ng , 25 S.W.3d at 712 ; Thompson v. State , 9 S.W.3d 808, 81 3 (Tex. Crim. App. 1999)

. Review of t rial co unsel ’ s representatio n is high ly deferential. Tong , 25 S.W.3d at 712. We begin with a “strong presumption ” that c ounsel ’ s conduct falls with in the wide ran ge of reasonable professional assi stance and was motivated by sound trial stra tegy

. Jacks on v. State, 877 S.W.2d 768, 771 (Tex. Cri m. App. 1994)

. T he a ppell ant bears the burden to ove rcome th is presumption by prese nting eviden ce showing why trial c ounsel d id wha t he did

. Id. ; Tong , 25 S.W. 3d at 712. A n appellant cannot meet this bur den if the recor d d oes not affirmatively demonstrate the alleged ineffectiveness. See Kemp v. State , 892 S.W.2d 112, 115 (Tex. App.

— Hous ton [1st Dist.] 1994, pet. ref ’ d ) ( a recor d that specifically focuses on the conduct of trial counsel is necessary for a proper eva luati on of an ineffectiveness claim ). Befo re being condemned as unprofessional and incompetent, defense counsel should be giv en an opportunity
to e xplai n his a ctions. See Bo ne , 77 S.W.3d at 836

. When the record is silent regarding the reasons f

or counsel ’ s con duct, a finding that counsel was inef fective would require5

impermissible speculation by the appellate court. Gamble v. S tate , 916 S.W.2d 92, 9 3 (Te x. App.

— Houston [1st Dist.] 1996, no pet.) ; see also Lopez v. State , 34 3 S.W.3d 137, 142 (Tex. Crim. App. 2011) ( “ In order fo r an appellate court to find that counsel was ineffective, couns el ’ s deficiency must be affirmatively demonstrated in the tria l rec ord; th e court must not engage in retrospective speculation. ” ). Failure to Object to H earsay Appellant asserts that trial counsel was defi cient because he failed to object to Appleman ’ s testimony that Shackleford told him she loaned Appell ant the v ehi cle h e was drivin g

on the date of the offense. App ellant ’s trial c ounsel raised a hearsay objection to t his t e stimony the first time that App leman testified ( although after App leman had already answered the question), whic h the t rial court o verruled

. Couns el did not object on the basis of h earsay the second time Appleman testified about the phone co nversation, when the S tate recalled him to impeach Shackle ford. To establish ineffective assistance of counsel based on a failu re to o bject , appellant must demon strate that the trial court would h ave committed error in overruling the objection had trial counsel objected. See Vaughn v. St ate , 931 S.W.2d 564, 566

– 67 (Tex. Crim. App. 1996); Donald v. State , 5 43 S.W.3d 466, 478 (Tex. App.

— Ho uston [14t h Dist.] 2018 , no pet. )

. F ailure to object to admissi ble evide nce do es not constitute ineffective as sistance of counsel. McCallum v. State , 311 S.W.3d 9 , 16 (Tex. App.

— San Anton io 2010 , no pet. )

. Any party, including the party that called the wit n ess, ma y attack a witness ’ s credibility. T EX

. R. E VID

. 607. One permissib le way of attacking a witness ’ s credibility is through impeachment by pri or inconsistent statements. See T EX

. R. E VID

. 613(a). Rule 613 requires that the party intending to examine a witnes s about a prior in consistent statement must tell the witne ss the co nten ts of the statement, the time and place of the sta tement, and the person to whom the witness made the statement. Id. at (a)(1). Then, th e witness must have the opportunity
to ex p lain or deny the statemen t. Id. at (a)( 3 ). If the witness does no t “ unequi vocally admit ” making the statement upon examination, extrinsic evidence of the prior inconsistent statement is admissible (including otherwise

- inadmissible hearsay)

. Id. at (a)(4) ; Willove r v. State , 70 S.W .3d 841, 846 n. 8 (Tex. Crim. App. 2002)

. The reco rd reflects that c ouns el for the State informed Sh ackleford of the contents of her statement, the time and place she said it, and to whom she said it. She testified that she did not6

recall ever speaking to A ppleman on the phone, which is not an un equi vo c al admittance of the statement. Therefore, under Rule 613, the State was permitted to introduce extrins ic evidence to impeach Shackleford , and it did so thro ugh Appleman ’ s testimony a b out the conversation with Shackleford

. See T EX

. R. E VID

. 613(a). Without showing t hat the e vidence to which trial counsel did not object was inadmissible, Appellant cannot prove that his trial counsel performed deficiently in failing to object to same, and therefore canno t prove the first prong of the Strickland test. See Donald , 5 43 S. W.3d at 4 78

. C onsequently, we overrule this portion o f Appellan t ’ s first issue. Failure to Request Limiting In struction Appellant argues that trial counsel was de ficient b y failing to r equest a n instruction limit ing the jury ’ s consideration of App lem an ’ s impeachment t estimon y only fo r its reflection on Shackleford ’ s cred ibil ity , and not for the truth of the matter asserted. Generally, if a defendant does not request a limit ing in structio n at th e time evidence is admi tted, then t he evidence is admi tted for all purposes, and th e tr ial judge has no obligation to limit the use of that evidence la ter in the jury charge. Delgado v. State , 235 S.W.3d 244, 251 (Tex. Crim. App. 2007)

. But defense counsel ’ s failure to req uest a limit i ng instruction is not, by it self, deficient performa n ce
. Agbogwe v. State , 414 S.W.3d 820, 837 (Tex. App.

— Houston [1 st Dist.] 2013 , no pet. )

. I f a rev iewing court can imagine a strategic motive to explain the ineffectiv e assis tance claim , then the r eviewi n g court may not sustain the appellant ’ s point of

err o r. Bone , 77 S.W.3d at 833 n. 13

. Here , the record is silent as to trial counsel ’ s defensive strategy or the reasoning for his fail ure to request a limit ing instructio n on Ap plem an ’ s impeachment te st imony , and we may not speculate a s to those reasons. Gener ally, a silent record cannot defeat the strong presumption that counsel was effective. See Garza v. State , 213 S.W.3d 338, 348 (Tex. Crim. App. 2007), b ut see Menefie ld v. S tate , 363 S.W.3d 591, 5 93 (Tex. Crim. App. 2012) (appellat e court should not find d eficient performance from undeveloped record unless challenged conduct “so outrageous that no competent attorney would have engaged in it”); Andrews v. State , 159 S.W .3d 98, 102

- 03 (Tex. Crim. A pp . 2005) (reversing conviction “in a rare case” on basis of i neffective assistance of counsel). T he record do es not show that Appellant ’ s trial counsel engaged in such outrageous conduc t that no competent attorney would have engaged in it . Multiple T ex as cour t s have held that defense counsel ’ s choice not to request a limiting instruction on certain evidence may well7

be the product of trial strategy

. See Delgado v. State , 235 S.W.3d 244, 254 (Tex. Crim. App. 2007) (defense counsel may decide not to reque st a li m i ting instruction so as not to emphasize unfavorable evid ence) ; Villalva v. State , No. 08

- 13

- 00219

- CR, 2015 WL 4134531, at *6 (Tex. App.

— El Paso July 8, 2015 , no pet. ) (mem. op., not de signated for publication) ( trial attorney may reasonably dec ide, as p ar t of tr ial strateg y , not to highlight objectionable testi mony by request ing limiting instruction ). Accordin gly , we cannot conclude t hat counsel ’ s p erformance fell below an objective standard o f reaso na ble professional assistance

. Bone , 77 S.W.3d at 833 n

. 1 3

. Becau se Appellant has not made the showing required for the first prong of the Strickland
tes t , we overrule this portion of Appellant ’ s first issue

. Improper Predicate Obj ection Appell an t argues in his second issue that trial counse l was deficient because he failed to object to “ the introduction of a verbal description of [ the ] ‘ doorbell camera ’ photographic evidence that was not properly supported by predict [ sic] testimony[. ] ” Appe llant later clarifies that trial counsel should have objec ted speci fically because the State did not establish the authenticity of th e original door bell camera footage about which App leman testified , and counsel ’ s failure to do so amounted to ineffe c tive a ssistance

. Any proffered item of evidence may be authenticated und er Rule 901 of the Texas Rules of Evidence by “evidence sufficient to support a f inding that the item is what the proponent claims it is .” T EX

. R. E VID

. 901(a). Conclusive proof of a uthenti city before allowing admission of disputed evidence is not required

. Fowler v . State , 544 S.W.3d 844, 848 (Tex. Crim. App. 2018)

. “Evidence may be a uthenticated in a number of ways, including by direct testimony from a witness with personal knowledg e, by c omparison with other authenticated evidenc e, or by circumstantial e vidence.” Tienda v. State , 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)

. R u le 901 ’ s standard for a uthentication has been described as a “ liberal standard of admissibility. ” Fowler , 544 S.W.3d at 84 9

. Consistent with the concept that counsel is not required t o take an action that would be futile , counsel ’s failure to object to a lack of f oundation is not ineffective assistance unless the record shows that the State would not have been ab le to l ay proper foundation. Holland v. State , 761 S.W.2d 307, 318

– 19 (Tex . Crim. App. 1988) ; Darnell v. State , No. 14

– 11

– 00437

– CR, 2012 WL 626318, at * 2 ( Tex. App.

— Houston [14th Dist.] Feb. 28, 2012,8

no pet.) (mem. op ., not designated for publication). 3 W e exami ne counsel ’s actions from the viewpoint of an attorney a t the time he acted, not through 20/20 hindsight. Ex parte Jimenez , 364 S.W.3d 866, 883 (Tex . Crim. App. 2012)

. Although generally the original recording is required to prove the content of a v ideo re cording , other evidence of the contents of a recording is admissibl e if all originals are lost or have been destroyed, unless the prop onent lost or destroyed them in bad faith. T E X

. R

. E VID

. 1002 , 1004( a). In this case, counsel represented to the tr ial co u rt that t he footage from the doorbell

camera had been overwritten b y the camera ’ s usual operation , bec ause it saves new footage over older footage a fter a certain period of time, and the video of Appe llan t was not collected before it

was o verwritten

. Appel lant did not assert that the recording was destroyed i n bad fa ith r ather than inadvertently , and the record contains no evidence to support such a f inding. Appleman
t estified that he personally noticed the doorbell camera at the house located at 192 9 West Jackson Street , and the homeowner allowed him to view the video cap tured by the camera

. The camera was triggered to record because Appellant ran pas t the front of the house. Appleman was familiar with Appellan t ’s appearance ge neral ly and on March 18 and recognized him in the footage as the same person h e saw driving the g old Yukon

. P eters similarly testified that he viewe d the doorbell camer a recording with Appleman and that t he homeowner voluntarily showed them the video , corroborating App leman ’ s testimony as to the circumstances surrounding their viewing of the recording

. The evidence presented by the State , both direct and circum stantial, satisfied the requirements of Rule 901 and served to authenticate th e original recording. See Wood v. State , 18 S.W.3d 642, 647 (Tex. Crim. App. 2000) ( t estimony of person who viewed de stroyed video tape and could identify the people depicted sufficient for authentication). Moreover, even if th e State ’ s authentication evidence as actually presented at trial w as in suffici ent, Ap pellant do es not contend and the record does not show that th e State

3 M ultipl e other Texas courts have similarly held tha t trial counsel ’ s fa ilure to object based on lack of foundation is not ineffective assistance unless the record shows that the S tate would not have been able to lay proper foundation. See, e.g. , F.R. v. Tex as Dep ’ t of Fam. & Protect ive Servs. , No. 03

- 17

- 00 487

- CV, 2017 WL 6503 082, at *8 (Tex. App.

— Austin D ec. 15, 2017 , no pet. ) (mem. op ., not designated for publication) ( “ Assuming witho ut deciding a business record affidavit would have been insufficient, ther e is no indication that th e Department would not h ave provided adequat e foundation in another way [.] ” ); Coker v. State , No. 08

- 02

- 00014

- CR, 2004 WL 11943 62, at *3 (Tex. App.

— E l Paso May 27, 2004 , pet. ref ’ d ) (mem. op., not designated for publication) ( “ There is no evidence in the appellate record t hat had trial counsel made [foundation] objections the St ate would hav e been unable to meet it. ” ) ; Carrillo v. State , No. 13

- 01

- 649

- CR, 200 4 WL 34857, at *8 (Tex. App.

— Corpus Christi Jan. 8, 2004 , pet . ref ’ d ) (mem. op., not designated for public ation) ( overruling ineffective assistance point b ased on second Stri ckland prong because , “ [ h] ad trial counsel objected, the State could have presente d additional evidence properly authenticating the [ item]

. ” )9

coul d n ot have provided adequate foundation through ot her, additional evidence

. Darnell , 2012 WL 626318, at * 2

. Bec ause Appellant did not file a moti on for new trial, t he record is silent as to coun sel ’ s reasoning for choosing not to o bject or fai l ing to object to Appleman ’ s testimony based on improper predi cate . To satisfy the first prong of Strickland on a silent record, it must be apparent “that counsel ’ s perfor mance fell below an objective standard of reasonableness a s a matter of law, and that no reasonable trial strategy could justify trial counsel ’ s acts or omissions,
reg ardless of his or her subjective reasoning.” Lopez , 343 S.W.3d at 143

. F ailing to object to admissible evidence is not ineffective assistance of co unsel , but e ven counsel ’ s d ecision not to object to arguably admissible evidence may be a matter of sound tri al stra te gy. Thompson , 9 S.W.3d at 814 ; Jones v. State , 950 S.W.2d 386, 389 (Tex. App.

— Fort Worth 1997 , pet. ref ’ d )

. In this case, it is possible that trial counsel reasonabl y decided at that moment that the testimony
was not inadmissible on the basis of imp roper predicate, or that raising an additional objection on this basis would appear to the jury to be trying the cas e o n technicalities. Ful ler v. State , 224 S.W.3d 823, 83 1 (Tex. App.

— Texar kana 2007 , no pet. )

. Whether counsel ’ s decision was the bes t possi ble trial strategy in hindsight is not an appropriate inquiry. Ex parte Kelley , No. WR

87,470

- 01, 2019 WL 5788034, at *35 (Tex. Crim. App. N ov. 6, 2019) (mem. op., not desi gnated for publication)

. Thus, unde r the circumstances of this case , we cannot find that counsel ’ s performance was deficient for purposes of proving the first prong of Strickland

. See Lopez v. State , 462 S.W.3d 180, 185 (Tex. App.

— Houston [ 1st D ist. ] 2015 , no pet. )

. W e overrule Appellan t ’ s second issue. Cu mulative Effect of Errors In his third issue, Appellan t argues that the cumul ative e ffect of counsel ’ s errors constitutes ineffective assistance

. The Texas Court of Criminal Appeals has extended t he concep t of “c umulative error” to ineffective assistance of c ounsel claims

. See Chamberlain v. State , 998 S.W.2d 230, 238 (T ex. Cri m. App. 1999) . However, t here is no authority for the p roposition that the cumulative effect of non

- errors requires reversal. Id

. Ad ditiona lly, if an appellant ’ s individ ual claims of err or lac k merit , then there is no possibil ity of cumulative error

. Gambo a v. State , 296 S.W.3d 574, 585 (Tex. Crim. App. 2009).10

Appellant does not attempt to explain how each of defense counsel ’ s alleged deficiencies cumulatively prejudiced the outcome of the cas e . Rathe r, he simply argues that th e sum total of the erro rs resu lted in an “ unfair ” and “unjust” verdict and sentence. We have already addressed Appellant ’ s complaints against his trial counsel an d concluded that they are lacking in merit

— counsel ’ s acti ons were e ither not deficient, or tho se actions could not ha ve prej udiced Appellant. Accordingly, we cannot conclude that this is one of those rare cases where in the cumulative effect of ineffective assistance warrants reversal of the judgment on direct appe al. See id

. We overrule Appellant ’ s third issue. L EGAL S UF F ICIENCY OF E VIDENCE
In his fourt h issue, Appellant contends that the evidence was insufficient to support a finding beyond a reason able do ubt that he knowingly possessed the bag of crack cocaine

. St a ndard o f Review
Th e du e process guara ntee of the Fourtee n th Amendment requi res that a conviction be

su pp orte d by legally suffici ent evidence. See Jackson v. Virginia , 443 U.S. 307, 315

– 16, 99 S. Ct. 2781, 2786

– 87, 61 L.Ed.2d 5 60 (1 979); Laster v . State , 27 5 S.W.3 d 512, 51 7 ( Tex

. Crim. A p p. 20 09 ). In Texas, the J ackson v. Virginia st andard is the only standard th at a reviewing
court should apply in determining whether the evidence is sufficie nt to support each element of a crimi nal o ffense th at th e state is require d to prov e beyo nd a reas o nable do ubt. Brooks v. S t ate , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In reviewing the legal sufficiency of the evidence, we consider all the evidence in the l ight most favorable to the verd ict a nd determine w hether any rationa l factfin de r co uld have found the essential eleme n ts of the crime beyond a reasonable doubt based on the evidence and re asonable inferences from that evidence. Whatley v. State , 445 S.W.3d 159, 166 (Tex. Crim. App. 201 4); B rooks , 323 S.W .3d at 898

– 9 9 (Tex. Crim. A p p. 201 0)

. J uri e s are permitted to draw m u ltiple reasonable inferences from direc t or c ircumstantial evid ence. A nderson v. State , 416 S.W.3d 884, 891 (Tex. Crim. App. 2013)

. W hen t he record supports conflicting infe rences, a revi ewing court must pr e sume th a t the fact fin d er re solved the conflicts in favor of the prosecution and therefo re def er to that determi nation. Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) . Direc t and circu mstantial evidence are t reated equally

. Id. A conc lusion of guilt ca n re st on th e comb ined and cumulative f o rce of all th e incriminating circumstances ; t he duty of a reviewin g c our t is to ensure tha t the evidence presented supports a conc lusion that the defendant committed t he cr ime charged

. S ee Hernandez11

v. Sta te , 190 S .W .3d 856, 864 (Tex. App.

– Corpus Christi 2 006, no pet.) ; Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App . 2 007)

. Th e sufficiency of the evidence is measured agains t the of fense (s) as defined by a hypot hetic ally correct j ury charge. See Mal ik v. St a te , 95 3 S.W.2d 234, 240 (Tex. Crim. App. 1 997). A hypothetically correct jury charge “accurately sets out the l aw, is authoriz ed by the indictment, does not unnecessarily i ncrea se the State ’ s burden of proof o r unn ecessarily res trict the St ate ’ s t heories o f liab ility, a n d ade quately describes th e particu lar offense for which the defendant is tried.” Id. Applicable Law
To prove un lawful possession of a controlled substance , the Stat e must prove that Appellant (1) exercise d actual care, control , an d man ag ement over the contraband and (2) k new the substance in his possession was contraband. 4 Nixon v. State , 928 S.W.2d 212, 215 (Tex. App.

— Beaumont 1996, no pet.) (citing King v

. State , 895 S.W.2d 701, 702 (Tex. C rim. App. 1995 ))

. When con traban d is not found on the accused ’ s person, or is no t in the exclusive possession o f the accused, additional facts must affirmatively link the accused to the contraband so that one may reasona bly infer that the accused exercised control over it. Smith v. State , 56 S.W.3d 739, 747 (Tex. App.

— Houston [14th Di st.] 2001, pet. ref ’ d)

. A nonexclusive list of factors relevant to knowing possession

— or “af firmative links”

— includes (1) the d efendant ’ s pr e sence during the search, (2) whether the contraband was in pl ain vi ew, (3 ) th e contraband ’ s proximity and access ibi lity to the defendant, (4) whether the defendant was under the influence of narcotics, (5) w hether the defendant possessed othe r contraband, (6) whether the defendant made incriminating statements wh en arrest ed, (7 ) wh ether the defendant attempted to fl ee, (8) whether the defendant made furtive gestures, (9) whether there was an odor of contraban d, (10) whether other contraband or drug paraphe r nalia was present, (11) whether the defendant owned or had a right to pos sess the place where contraband was fou nd, (12) whether the place where the drugs were found was enclosed, (13) whether the

4 The State must also prove that Appellant possessed the crack c ocaine with intent to deliver. Circu mstance s consi dered by the courts in determining “intent to deliver” include (1) the nature of t he location where the defendant was ar rested, (2) the quantity of the drugs the defendant possessed, (3) the manner of packa ging the drugs, (4) the presence or absence of dru g paraphernalia (for use or sale), (5) whether the defendant possessed a large amo unt of cash in addition to the drugs, and (6) the defendant ’ s status as a drug user. Garrett v. State , 161 S.W.3d 664, 671 ( Tex. App.

— Fort Worth 2005, pet. ref ’ d). Appellant does not contest the legal sufficien cy of the evidence for a findi ng of intent to deliver.12

defendant was found with a large amount of ca sh, and (14) w hether the defendant ’ s conduct indicated consciousness of gui lt. Ta te v. Stat e , 500 S.W.3d 410, 414 (Tex. Crim. App . 2016) (quoting Evans v. State , 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)). Further, the presence of a large quantity of contraband m ay be a factor affirmatively linking an appellant to the contraband. Espino

- Cruz v. State , 586 S.W.3d 538, 544 (Tex. App.

— Houston [14th Dist.] 2019 , pet. ref ’ d )

. An affirm ative link is a shorthand expressio n of what must be proven to establish that a
perso n possessed a controlled substance kn owin gly or intentionally. Brown v. Stat e , 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). In other words, “the concept of an affirmative l ink is simply one way to describe t he sufficiency of circumstantial evidence to prove intent to possess drugs. ” Broc hu v. Stat e , 927 S.W.2d 745, 751 (Tex . App.

— H ouston [14th Dist.] 1996, pet. ref ’ d) ( citing Brown , 911 S.W.2d at 747). Although these factors can help guide a court ’ s analysis , ultimately th e inquiry remains that set forth in Jackson

— whether, based on the c ombine d an d cumulative force of the e vidence and any reasonable inferences therefrom , the jury was rationally justified in finding guilt bey ond a reasonable doubt. Tate , 500 S.W.3d at 414; see Jackson , 443 U.S. at 318

- 19, 99 S. Ct. at 2789. “It is .. . not the nu mber of links that is dispositi ve, but rather the logical force of all the evi dence, direct and circumstantial.” Evans , 202 S.W.3d at 162. A na lysis Appellant argues that the State ’ s evidence on the element of care, cont rol, and
manageme nt was l egally insufficient to support the jury ’ s f inding of guilt

. In suppo rt of his argument, he asserts that law enforcement did not see him carrying or discar ding any na rcotics or plastic bags, no fingerprints we re found on the narcoti cs or the plastic bag, an d law enforcement found no narcotics, parap hernalia, or la rge sums of money w hen they sear ched the Yukon

. Appellant further a rgues that the State did not develop testimony as to “ how long the narcotics had been in its [sic] loca tio n before Appleman fou nd the m. ” S ever al factors link Appellant to the contraband and s upport a finding of knowing possessi on
. The bag containing the contraband was in plain view on the ground when law enforce ment found it , and the bag contained a very larg e amount of cra ck cocaine

. Appleman saw Appellant running toward the area where he found the bag, and Appellant ’ s path of flight was further conf

irmed by App leman ’ s review of t he video recording from the doorbell camera. A ppellant immedia tely fle d from Appleman on foot when Appleman approached and i den tified13

himself

. Even before running from App l eman, Appellant drove erratically when he noticed Appleman following him, parked at a house t o which he had no connection , and made pr olonged

e ye contact with Appleman before fleeing, all i n dications of a consciousness of guilt. T hat the

“ cookie ” of c r ack cocaine had been newly created, and thus could not have been in the yard

w here the bag was found for very long, is additional evidence linking Appellant to the drugs. As A ppellant po ints o ut, evidence pertaining to several possible affirmative links w as either not present or not discussed at trial. But the State is not required to establish all possible affirmative links or present evidence on ea ch factor, and the absence of some fact ors is not evidence of innocence that must be weighed against the oth er factors present. Espino

- Cruz , 586 S.W.3d at 54 6

. Additionally, that Appellant ran so that Appleman could not see him significantly lessens the importance that Appleman failed to see Appellant drop the bag. Accordingly, v iewing the evidence in the light most favorable to the verdict, we c o nclude that a rational jury c ould find beyond a re asonabl e doubt that Appellant knowingly possessed crack co caine

. We overrule Appel lant ’ s fourth issue. B EST E VID ENCE O BJECTION In his fifth issue, Appellant argues that the trial court abuse d it s discretion in adm itting App leman ’ s testimony about the conten t s of the doorbell camera video over Appellant ’ s best evidence objection

. Standard of Review and Appl icable Law
A tri al court ’ s ruling on the admissibility of evidence is reviewed unde r an abuse of discretion standard. Mose s v. State , 105 S.W .3 d 622, 627 (Tex. Crim. App. 2003); Manuel v

. St ate , 357 S.W.3d 66, 74 (Tex. App.

— Ty ler 2011, pet. ref ’ d). If t he ruling is w ithin the zone of reasonable disagreement, an appellate court will not d istu rb it. Manuel , 357 S.W.3d at 74. As previously discussed , Te xas Rule of E vidence 1002 provides that an original writing, recording, or photograph is r equired to prove i ts content unless the Rules of Evidence or other law provides otherwise. T E X

. R

. E VID

. 1002

. Althoug h ge nerally the origin al recording is

r equired to prove the c onten t of a video, other evidence of the content o f a recording , suc h as testimony from a person who saw the vid e o, is admissible if all originals are lost or de stroyed (unless the proponent lost or destroyed the originals in ba d fait h). Id. at 1004 (a) ; Wo od , 18 S.W.3d at 647

.14

A nalysis
O utside of the jury ’ s presence , Defense counse l re

- u rged App ellant ’ s best evidence objection to Appleman ’ s testimony regarding the vi deo

. A t that tim e, c ounsel for the Stat e repre sented to the trial court that t he do orbell ca mera footage had been destroyed by the standard operati on of the came ra itself, bec ause it re cords over older footage after a certain period of t ime, and the video of Appe llan t was not collected before it was o verwritten

. Appellant did not argue that the r ecording was destroyed i n bad fa ith rather than inadver tently

. Accord ingly, the trial court was wit hin its discretion to determine that the origi nal record ing was unavaila ble as lost or destroyed

. See Howell v. Howell , No. 13

- 10

- 00687

- CV, 2013 WL 784542, a t *7 (Tex. App.

— Corpus Christi Feb. 28, 2013, no pet.) (mem. op., not designated for publication) ( representation of counsel that do cument was no t obtainable sufficient for finding that docume nt had been lost or destr oyed )

. Consequently , the trial court ’ s ruling that Appleman ’ s testimony was admissible as

“ oth er evidence ” o f the video ’ s contents was wel l within the zon e of reasonable dis agre ement , and thus not an abuse of the trial court ’ s d iscretion

. T E X

. R

. E VID

. 100 4(a) ; Wood , 18 S.W.3d at 647 ; see also Ellis v. State , 517 S.W.3d 922, 9 31 (Tex. App.

— Fort Wor th 2017 , no pe t. ) ( purpose of best evidence rule is to secure production of the bes t obtai nable evidence of document ’ s contents, if the document cannot as a practical matter be produced )

. We o verrule A ppellant ’ s fifth issue. D ISPOSITION Having overruled each of Appellan t ’ s five issues, we affirm the trial court ’ s judgment

.

B R IAN H OYLE Justice Opinion delivered June 14 , 2023. Panel consisted of Worthen, C.J ., Hoyle, J., and Neeley , J.

( DO NOT PUBLI SH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 14 , 2023

NO. 12

- 22

- 00268

- CR

DAMONTE DEANDRE SH EARS ,

Appellant V. THE STATE OF T EXAS , Appellee

Appeal from the 241st D istrict Co urt of Smith County, Texas (Tr.Ct.No. 241

- 1718

- 21 )
THIS CAUSE came to be heard on the appellate record and briefs f iled herein, and the same be ing considered, it is the opinion of this Court that there was no error in the judgment

. It is therefore ORDERE D, ADJUDGED, and DECREED that the judgme nt of the court below be in all things affirmed , and that this decision be c ertified to the court below for observance.

Brian Hoyle , Justice

. Panel consisted of Worthen , C.J., Hoyle, J., and Nee ley, J.