NO. 12-22-00268-CR

IN THE COURT 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, appeals his conviction for possession with intent to 

deliver cocaine. In five issues, Appellant contends that his trial counsel rendered ineffective 

assistance, challenges the sufficiency of the evidence to support his conviction, and alleges the 

trial court erroneously admitted evidence. We affirm.

BACKGROUND

On March 18, 2021, Texas Department of Public Safety Trooper Donald Appleman was

driving through the Butler College area of Tyler, Texas, attempting to locate Appellant.

Appleman saw a GMC Yukon SUV that he believed to be driven by Appellant and confirmed his 

identity using law enforcement intelligence photographs. Thereafter, Appellant appeared to 

notice Appleman following him, stopped the SUV in the driveway of 2000 West Robbins Street,

exited the vehicle, and appeared to be making a call on his cell phone. When Appleman 

approached, identified himself, and asked to speak with Appellant, Appellant fled on foot. 

Appellant ran through the yard on the property, jumped over a fence, and turned east into an 

easement beside the property.

Other law enforcement officers quickly responded to the scene and secured the area. 

About forty-five minutes after Appellant’s flight, while walking the path Appellant took,

Appleman and Corporal Jonathan Peters located a clear plastic bag containing a “cookie” of 
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crack cocaine and a large number of pills.1 The bag was located at the northeast corner of the 

fence surrounding 1929 West Jackson Street, the property immediately to the south of 2000 West 

Robbins. There had been no foot traffic in the area between Appellant’s flight and the discovery

of the drugs, and Appleman noticed that the cocaine “cookie” was still wet when he found the 

plastic bag, indicating that it had been newly created. That same day, during his investigation, 

Appleman viewed footage from a doorbell camera belonging to the owner of the house on 1929 

West Jackson, showing Appellant running across the front part of the house less than one minute 

after he fled from Appleman. The next day, Shakayla Shackleford, Appellant’s girlfriend and the 

registered owner of the Yukon SUV that Appellant had been driving, called Appleman and told 

him that she loaned her vehicle to Appellant the previous day.

Law enforcement subsequently arrested Appellant and he was indicted by a grand jury 

for the offense of possession with intent to deliver a controlled substance, specifically cocaine, in 

an amount of more than four grams but less than 200 grams.

2 Appellant pleaded “not guilty,” and 

this matter proceeded to a jury trial.

At trial, Appleman testified to the aforementioned details of his investigation, including 

that Appellant’s behavior was consistent with a “heat run,” wherein criminals in an area attempt 

to determine whether police are present in the area because of them. Defense counsel lodged a 

hearsay objection to Appleman’s testimony regarding Shackleford’s telephone statement, which

the trial court overruled. Outside the jury’s presence, Defense counsel re-urged a best evidence 

objection to Appleman’s testimony regarding the doorbell camera video. The prosecution

asserted that the footage no longer existed, because the video was not previously collected and 

the camera recorded over the footage. The trial court overruled defense counsel’s objection.

Thereafter, Appleman testified to what he saw on the video. Defense counsel again objected to 

Appleman’s testimony about the contents of the doorbell camera video based on the best 

evidence rule. The trial court overruled this objection.

Corporal Peters testified that he responded to the scene to assist Appleman by securing

the area and the vehicle while Appleman attempted to locate Appellant. He later accompanied

Appleman to walk the path Appleman suspected Appellant took on foot, during which they 

1 The identity of the “cookie” was later confirmed by laboratory testing, which showed that it contained 

cocaine and weighed 13.19 grams.

2 TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2023).
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located the plastic bag containing the cocaine 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 testified that Appleman acknowledged that Appellant was the person in 

the video.

Shackleford 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 Appellant to drive it,

but she could not remember whether she allowed him to drive the vehicle in March 2021. She 

did not remember either the police contacting her because the Yukon had been towed or

speaking to Appleman on the phone. Shackleford cited her use of antidepressants as the reason 

she could not remember these events. Thereafter, the State recalled Appleman to repeat his 

testimony about the March 19 telephone conversation with Shackleford, to which defense 

counsel did not object.

Detective Aneas Sutton of the Texas Anti-Gang Center testified that prior to March 18, 

he provided Appleman information and recommended that he locate Appellant. Sutton also 

obtained the arrest warrant for Appellant after the events of March 18. He stated that in his 

experience as a narcotics-focused officer, the crack cocaine in the clear bag would produce about 

13 “servings” and cost anywhere from $750.00 to $1,300.00. The multicolored pills from the 

bag, which Sutton’s field test presumptively determined to be ecstasy or MDMA, weighed 

approximately 100 grams. Sutton testified that each pill would likely sell for around $20.00.

The jury found Appellant “guilty” of possession of cocaine with intent to deliver and

assessed punishment of forty-five years’ imprisonment. This appeal followed.

INEFFECTIVE ASSISTANCE OF COUNSEL

In Appellant’s first, second, and third issues, he complains that trial counsel rendered

ineffective assistance by failing to object to hearsay evidence and improper predicate, and to 

request a limiting instruction as to hearsay evidence. Appellant further asserts that the cumulative 

impact of trial counsel’s errors denied him effective assistance of counsel.

Standard of Review and Applicable Law

In reviewing an ineffective assistance of counsel claim, we follow the United States 

Supreme Court’s two-pronged test found in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 

1986). Under the first prong of the Strickland test, an appellant must show that counsel’s 
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performance was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 

S.W.3d 707, 712 (Tex. Crim. App. 2000). A deficient performance occurs when “counsel made 

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by 

the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an

appellant must show that counsel’s representation 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 prong, an appellant must affirmatively show that counsel’s deficient 

performance prejudiced his defense. Strickland, 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 prove that his attorney’s 

errors, judged by the totality of the representation and not by isolated instances of error, denied 

him a fair trial. Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.—Texarkana 2000, pet. ref’d). 

It is not enough for the appellant to show that the errors had some conceivable effect on the 

outcome of the proceedings; he must show that there is a reasonable probability that, but for his 

attorney’s errors, the verdict or the extent of his punishment would have been less. See id.; see 

also Bone v. State, 77 S.W.3d 828, 837 (Tex. Crim. App. 2002). The appellant must prove both 

prongs of the Strickland test by a preponderance of the evidence to prevail; failure to make the 

required showing of either deficient performance or sufficient prejudice defeats the 

ineffectiveness claim. Tong, 25 S.W.3d at 712; Thompson v. State, 9 S.W.3d 808, 813 (Tex. 

Crim. App. 1999).

Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712. 

We begin with a “strong presumption” that counsel’s conduct falls within the wide range of 

reasonable professional assistance and was motivated by sound trial strategy. Jackson v. State, 

877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The appellant bears the burden to overcome this

presumption by presenting evidence showing why trial counsel did what he did. Id.; Tong, 25 

S.W.3d at 712. An appellant cannot meet this burden if the record does not affirmatively 

demonstrate the alleged ineffectiveness. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d) (a record that specifically focuses on the conduct of trial 

counsel is necessary for a proper evaluation of an ineffectiveness claim). Before being 

condemned as unprofessional and incompetent, defense counsel should be given an opportunity 

to explain his actions. See Bone, 77 S.W.3d at 836. When the record is silent regarding the 

reasons for counsel’s conduct, a finding that counsel was ineffective would require 
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impermissible speculation by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex. 

App.—Houston [1st Dist.] 1996, no pet.); see also Lopez v. State, 343 S.W.3d 137, 142 (Tex. 

Crim. App. 2011) (“In order for an appellate court to find that counsel was ineffective, counsel’s

deficiency must be affirmatively demonstrated in the trial record; the court must not engage in 

retrospective speculation.”).

Failure to Object to Hearsay

Appellant asserts that trial counsel was deficient because he failed to object to 

Appleman’s testimony that Shackleford told him she loaned Appellant the vehicle he was driving 

on the date of the offense. Appellant’s trial counsel raised a hearsay objection to this testimony

the first time that Appleman testified (although after Appleman had already answered the 

question), which the trial court overruled. Counsel did not object on the basis of hearsay the 

second time Appleman testified about the phone conversation, when the State recalled him to 

impeach Shackleford.

To establish ineffective assistance of counsel based on a failure to object, appellant must 

demonstrate that the trial court would have committed error in overruling the objection had trial 

counsel objected. See Vaughn v. State, 931 S.W.2d 564, 566–67 (Tex. Crim. App. 1996); 

Donald v. State, 543 S.W.3d 466, 478 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Failure 

to object to admissible evidence does not constitute ineffective assistance of counsel. McCallum 

v. State, 311 S.W.3d 9, 16 (Tex. App.—San Antonio 2010, no pet.).

Any party, including the party that called the witness, may attack a witness’s credibility. 

TEX. R. EVID. 607. One permissible way of attacking a witness’s credibility is through 

impeachment by prior inconsistent statements. See TEX. R. EVID. 613(a). Rule 613 requires that 

the party intending to examine a witness about a prior inconsistent statement must tell the 

witness the contents of the statement, the time and place of the statement, and the person to 

whom the witness made the statement. Id. at (a)(1). Then, the witness must have the opportunity 

to explain or deny the statement. Id. at (a)(3). If the witness does not “unequivocally admit”

making the statement upon examination, extrinsic evidence of the prior inconsistent statement is 

admissible (including otherwise-inadmissible hearsay). Id. at (a)(4); Willover v. State, 70 S.W.3d 

841, 846 n.8 (Tex. Crim. App. 2002).

The record reflects that counsel for the State informed Shackleford of the contents of her 

statement, the time and place she said it, and to whom she said it. She testified that she did not
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recall ever speaking to Appleman on the phone, which is not an unequivocal admittance of the 

statement. Therefore, under Rule 613, the State was permitted to introduce extrinsic evidence to 

impeach Shackleford, and it did so through Appleman’s testimony about the conversation with 

Shackleford. See TEX. R. EVID. 613(a). Without showing that the evidence 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 cannot prove the first prong of the 

Strickland test. See Donald, 543 S.W.3d at 478. Consequently, we overrule this portion of

Appellant’s first issue.

Failure to Request Limiting Instruction

Appellant argues that trial counsel was deficient by failing to request an instruction 

limiting the jury’s consideration of Appleman’s impeachment testimony only for its reflection on 

Shackleford’s credibility, and not for the truth of the matter asserted.

Generally, if a defendant does not request a limiting instruction at the time evidence is 

admitted, then the evidence is admitted for all purposes, and the trial judge has no obligation to 

limit the use of that evidence later in the jury charge. Delgado v. State, 235 S.W.3d 244, 251 

(Tex. Crim. App. 2007). But defense counsel’s failure to request a limiting instruction is not, by 

itself, deficient performance. Agbogwe v. State, 414 S.W.3d 820, 837 (Tex. App.—Houston [1st

Dist.] 2013, no pet.). If a reviewing court can imagine a strategic motive to explain the 

ineffective assistance claim, then the reviewing court may not sustain the appellant’s point of 

error. 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 

failure to request a limiting instruction on Appleman’s impeachment testimony, and we may not 

speculate as to those reasons. Generally, 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), but see

Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (appellate court should not find 

deficient 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. App. 2005) (reversing conviction “in a rare case” on basis of ineffective assistance 

of counsel). The record does not show that Appellant’s trial counsel engaged in such outrageous 

conduct that no competent attorney would have engaged in it. Multiple Texas courts have held 

that defense counsel’s choice not to request a limiting instruction on certain evidence may well
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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 request a limiting instruction so as not to emphasize

unfavorable evidence); 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 designated for publication) (trial attorney 

may reasonably decide, as part of trial strategy, not to highlight objectionable testimony by 

requesting limiting instruction). Accordingly, we cannot conclude that counsel’s performance 

fell below an objective standard of reasonable professional assistance. Bone, 77 S.W.3d at 833 n. 

13. Because Appellant has not made the showing required for the first prong of the Strickland

test, we overrule this portion of Appellant’s first issue. 

Improper Predicate Objection

Appellant argues in his second issue that trial counsel 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[.]” Appellant later clarifies 

that trial counsel should have objected specifically because the State did not establish the

authenticity of the original doorbell camera footage about which Appleman testified, and 

counsel’s failure to do so amounted to ineffective assistance.

Any proffered item of evidence may be authenticated under Rule 901 of the Texas Rules 

of Evidence by “evidence sufficient to support a finding that the item is what the proponent 

claims it is.” TEX. R. EVID. 901(a). Conclusive proof of authenticity 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 authenticated in a number of ways, including by direct testimony from 

a witness with personal knowledge, by comparison with other authenticated evidence, or by 

circumstantial evidence.” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Rule 

901’s standard for authentication has been described as a “liberal standard of admissibility.”

Fowler, 544 S.W.3d at 849. Consistent with the concept that counsel is not required to take an 

action that would be futile, counsel’s failure to object to a lack of foundation is not ineffective 

assistance unless the record shows that the State would not have been able to lay 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, 
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no pet.) (mem. op., not designated for publication).3 We examine counsel’s actions from the 

viewpoint of an attorney at 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 video recording, other evidence of the contents of a recording 

is admissible if all originals are lost or have been destroyed, unless the proponent lost or 

destroyed them in bad faith. TEX. R. EVID. 1002, 1004(a).

In this case, counsel represented to the trial court that the footage from the doorbell 

camera had been overwritten by the camera’s usual operation, because it saves new footage over

older footage after a certain period of time, and the video of Appellant was not collected before it 

was overwritten. Appellant did not assert that the recording was destroyed in bad faith rather 

than inadvertently, and the record contains no evidence to support such a finding. Appleman

testified that he personally noticed the doorbell camera at the house located at 1929 West 

Jackson Street, and the homeowner allowed him to view the video captured by the camera. The 

camera was triggered to record because Appellant ran past the front of the house. Appleman was 

familiar with Appellant’s appearance generally and on March 18 and recognized him in the 

footage as the same person he saw driving the gold Yukon. Peters similarly testified that he

viewed the doorbell camera recording with Appleman and that the homeowner voluntarily 

showed them the video, corroborating Appleman’s testimony as to the circumstances 

surrounding their viewing of the recording. The evidence presented by the State, both direct and 

circumstantial, satisfied the requirements of Rule 901 and served to authenticate the original 

recording. See Wood v. State, 18 S.W.3d 642, 647 (Tex. Crim. App. 2000) (testimony of person 

who viewed destroyed videotape and could identify the people depicted sufficient for

authentication). Moreover, even if the State’s authentication evidence as actually presented at 

trial was insufficient, Appellant does not contend and the record does not show that the State 

3 Multiple other Texas courts have similarly held that trial counsel’s failure to object based on lack of 

foundation is not ineffective assistance unless the record shows that the State would not have been able to lay proper 

foundation. See, e.g., F.R. v. Texas Dep’t of Fam. & Protective Servs., No. 03-17-00487-CV, 2017 WL 6503082, at 

*8 (Tex. App.—Austin Dec. 15, 2017, no pet.) (mem. op., not designated for publication) (“Assuming without 

deciding a business record affidavit would have been insufficient, there is no indication that the Department would 

not have provided adequate foundation in another way[.]”); Coker v. State, No. 08-02-00014-CR, 2004 WL 

1194362, at *3 (Tex. App.—El Paso May 27, 2004, pet. ref’d) (mem. op., not designated for publication) (“There is 

no evidence in the appellate record that had trial counsel made [foundation] objections the State would have been 

unable to meet it.”); Carrillo v. State, No. 13-01-649-CR, 2004 WL 34857, at *8 (Tex. App.—Corpus Christi Jan. 8, 

2004, pet. ref’d) (mem. op., not designated for publication) (overruling ineffective assistance point based on second 

Strickland prong because, “[h]ad trial counsel objected, the State could have presented additional evidence properly 

authenticating the [item].”)
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could not have provided adequate foundation through other, additional evidence. Darnell, 2012 

WL 626318, at *2.

Because Appellant did not file a motion for new trial, the record is silent as to counsel’s 

reasoning for choosing not to object or failing to object to Appleman’s testimony based on

improper predicate. To satisfy the first prong of Strickland on a silent record, it must be apparent 

“that counsel’s performance fell below an objective standard of reasonableness as a matter of 

law, and that no reasonable trial strategy could justify trial counsel’s acts or omissions, 

regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at 143. Failing to object to 

admissible evidence is not ineffective assistance of counsel, but even counsel’s decision not to 

object to arguably admissible evidence may be a matter of sound trial strategy. 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 reasonably decided at that moment that the testimony 

was not inadmissible on the basis of improper predicate, or that raising an additional objection on 

this basis would appear to the jury to be trying the case on technicalities. Fuller v. State, 224 

S.W.3d 823, 831 (Tex. App.—Texarkana 2007, no pet.). Whether counsel’s decision was the 

best possible trial strategy in hindsight is not an appropriate inquiry. Ex parte Kelley, No. WR87,470-01, 2019 WL 5788034, at *35 (Tex. Crim. App. Nov. 6, 2019) (mem. op., not designated 

for publication).

Thus, under 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 Dist.] 2015, no pet.). We overrule Appellant’s 

second issue.

Cumulative Effect of Errors

In his third issue, Appellant argues that the cumulative effect of counsel’s errors

constitutes ineffective assistance. The Texas Court of Criminal Appeals has extended the concept 

of “cumulative error” to ineffective assistance of counsel claims. See Chamberlain v. State, 998 

S.W.2d 230, 238 (Tex. Crim. App. 1999). However, there is no authority for the proposition that 

the cumulative effect of non-errors requires reversal. Id. Additionally, if an appellant’s 

individual claims of error lack merit, then there is no possibility of cumulative error. Gamboa v. 

State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009).
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Appellant does not attempt to explain how each of defense counsel’s alleged deficiencies 

cumulatively prejudiced the outcome of the case. Rather, he simply argues that the sum total of 

the errors resulted in an “unfair” and “unjust” verdict and sentence. We have already addressed 

Appellant’s complaints against his trial counsel and concluded that they are lacking in merit—

counsel’s actions were either not deficient, or those actions could not have prejudiced Appellant. 

Accordingly, we cannot conclude that this is one of those rare cases wherein the cumulative 

effect of ineffective assistance warrants reversal of the judgment on direct appeal. See id. We 

overrule Appellant’s third issue.

LEGAL SUFFICIENCY OF EVIDENCE

In his fourth issue, Appellant contends that the evidence was insufficient to support a 

finding beyond a reasonable doubt that he knowingly possessed the bag of crack cocaine.

Standard of Review

The due process guarantee of the Fourteenth Amendment requires that a conviction be 

supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S.

Ct. 2781, 2786–87, 61 L.Ed.2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.

App. 2009). In Texas, the Jackson v. Virginia 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, 912 (Tex. Crim. App. 2010). In reviewing the legal sufficiency of the evidence, 

we consider all the evidence in the light most favorable to the verdict and determine whether any 

rational factfinder could have found the essential elements of the crime beyond a reasonable 

doubt based on the evidence and reasonable inferences from that evidence. Whatley v. State, 445

S.W.3d 159, 166 (Tex. Crim. App. 2014); Brooks, 323 S.W.3d at 898–99 (Tex. Crim. App.

2010). Juries are permitted to draw multiple reasonable inferences from direct or circumstantial 

evidence. Anderson v. State, 416 S.W.3d 884, 891 (Tex. Crim. App. 2013). When the record 

supports conflicting inferences, a reviewing court must presume that the fact finder resolved the 

conflicts in favor of the prosecution and therefore defer to that determination. Clayton v. State, 

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated 

equally. Id. A conclusion of guilt can rest on the combined and cumulative force of all the 

incriminating circumstances; the duty of a reviewing court is to ensure that the evidence 

presented supports a conclusion that the defendant committed the crime charged. See Hernandez
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v. State, 190 S.W.3d 856, 864 (Tex. App.–Corpus Christi 2006, no pet.); Williams v. State, 235 

S.W.3d 742, 750 (Tex. Crim. App. 2007).

The sufficiency of the evidence is measured against the offense(s) as defined by a 

hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the 

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict 

the State’s theories of liability, and adequately describes the particular offense for which the 

defendant is tried.” Id.

Applicable Law

To prove unlawful possession of a controlled substance, the State must prove that 

Appellant (1) exercised actual care, control, and management over the contraband and (2) knew

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. Crim. App. 

1995)). When contraband is not found on the accused’s person, or is not in the exclusive 

possession of the accused, additional facts must affirmatively link the accused to the contraband 

so that one may reasonably infer that the accused exercised control over it. Smith v. State, 56 

S.W.3d 739, 747 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

A nonexclusive list of factors relevant to knowing possession—or “affirmative links”—

includes (1) the defendant’s presence during the search, (2) whether the contraband was in plain 

view, (3) the contraband’s proximity and accessibility to the defendant, (4) whether the 

defendant was under the influence of narcotics, (5) whether the defendant possessed other 

contraband, (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 was 

present, (11) whether the defendant owned or had a right to possess the place where contraband 

was found, (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 cocaine with intent to deliver. 

Circumstances considered by the courts in determining “intent to deliver” include (1) the nature of the location 

where the defendant was arrested, (2) the quantity of the drugs the defendant possessed, (3) the manner of packaging 

the drugs, (4) the presence or absence of drug paraphernalia (for use or sale), (5) whether the defendant possessed a 

large amount 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 sufficiency of the 

evidence for a finding of intent to deliver.
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defendant was found with a large amount of cash, and (14) whether the defendant’s conduct 

indicated consciousness of guilt. Tate v. State, 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 may 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 affirmative link is a shorthand expression of what must be proven to establish that a 

person possessed a controlled substance knowingly or intentionally. Brown v. State, 911 S.W.2d 

744, 747 (Tex. Crim. App. 1995). In other words, “the concept of an affirmative link is simply 

one way to describe the sufficiency of circumstantial evidence to prove intent to possess drugs.” 

Brochu v. State, 927 S.W.2d 745, 751 (Tex. App.—Houston [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 

the inquiry remains that set forth in Jackson—whether, based on the combined and cumulative 

force of the evidence and any reasonable inferences therefrom, the jury was rationally justified in 

finding guilt beyond 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 number of links that is dispositive, but rather the logical 

force of all the evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162.

Analysis

Appellant argues that the State’s evidence on the element of care, control, and 

management was legally insufficient to support the jury’s finding of guilt. In support of his 

argument, he asserts that law enforcement did not see him carrying or discarding any narcotics or 

plastic bags, no fingerprints were found on the narcotics or the plastic bag, and law enforcement 

found no narcotics, paraphernalia, or large sums of money when they searched the Yukon.

Appellant further argues that the State did not develop testimony as to “how long the narcotics 

had been in its [sic] location before Appleman found them.”

Several factors link Appellant to the contraband and support a finding of knowing 

possession. The bag containing the contraband was in plain view on the ground when law 

enforcement found it, and the bag contained a very large amount of crack cocaine. Appleman 

saw Appellant running toward the area where he found the bag, and Appellant’s path of flight 

was further confirmed by Appleman’s review of the video recording from the doorbell camera.

Appellant immediately fled from Appleman on foot when Appleman approached and identified
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himself. Even before running from Appleman, Appellant drove erratically when he noticed 

Appleman following him, parked at a house to which he had no connection, and made prolonged 

eye contact with Appleman before fleeing, all indications of a consciousness of guilt. That the 

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

where the bag was found for very long, is additional evidence linking Appellant to the drugs. 

As Appellant points out, evidence pertaining to several possible affirmative links was

either not present or not discussed at trial. But the State is not required to establish all possible 

affirmative links or present evidence on each factor, and the absence of some factors is not 

evidence of innocence that must be weighed against the other factors present. Espino-Cruz, 586 

S.W.3d at 546. 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, viewing 

the evidence in the light most favorable to the verdict, we conclude that a rational jury could find

beyond a reasonable doubt that Appellant knowingly possessed crack cocaine. We overrule 

Appellant’s fourth issue.

BEST EVIDENCE OBJECTION

In his fifth issue, Appellant argues that the trial court abused its discretion in admitting 

Appleman’s testimony about the contents of the doorbell camera video over Appellant’s best 

evidence objection.

Standard of Review and Applicable Law

A trial court’s ruling on the admissibility of evidence is reviewed under an abuse of 

discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Manuel v. 

State, 357 S.W.3d 66, 74 (Tex. App.—Tyler 2011, pet. ref’d). If the ruling is within the zone of 

reasonable disagreement, an appellate court will not disturb it. Manuel, 357 S.W.3d at 74.

As previously discussed, Texas Rule of Evidence 1002 provides that an original writing, 

recording, or photograph is required to prove its content unless the Rules of Evidence or other 

law provides otherwise. TEX. R. EVID. 1002. Although generally the original recording is 

required to prove the content of a video, other evidence of the content of a recording, such as 

testimony from a person who saw the video, is admissible if all originals are lost or destroyed

(unless the proponent lost or destroyed the originals in bad faith). Id. at 1004(a); Wood, 18 

S.W.3d at 647.
14

Analysis

Outside of the jury’s presence, Defense counsel re-urged Appellant’s best evidence 

objection to Appleman’s testimony regarding the video. At that time, counsel for the State 

represented to the trial court that the doorbell camera footage had been destroyed by the standard 

operation of the camera itself, because it records over older footage after a certain period of time, 

and the video of Appellant was not collected before it was overwritten. Appellant did not argue

that the recording was destroyed in bad faith rather than inadvertently. Accordingly, the trial 

court was within its discretion to determine that the original recording was unavailable as lost or 

destroyed. See Howell v. Howell, No. 13-10-00687-CV, 2013 WL 784542, at *7 (Tex. App.—

Corpus Christi Feb. 28, 2013, no pet.) (mem. op., not designated for publication) (representation 

of counsel that document was not obtainable sufficient for finding that document had been lost or 

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

“other evidence” of the video’s contents was well within the zone of reasonable disagreement, 

and thus not an abuse of the trial court’s discretion. TEX. R. EVID. 1004(a); Wood, 18 S.W.3d at

647; see also Ellis v. State, 517 S.W.3d 922, 931 (Tex. App.—Fort Worth 2017, no pet.)

(purpose of best evidence rule is to secure production of the best obtainable evidence of 

document’s contents, if the document cannot as a practical matter be produced). We overrule 

Appellant’s fifth issue.

DISPOSITION

Having overruled each of Appellant’s five issues, we affirm the trial court’s judgment.

BRIAN HOYLE

Justice

Opinion delivered June 14, 2023.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 14, 2023

NO. 12-22-00268-CR

DAMONTE DEANDRE SHEARS,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 241st District Court

of Smith County, Texas (Tr.Ct.No. 241-1718-21)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this Court that there was no error in 

the judgment.

It is therefore ORDERED, ADJUDGED, and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.