Opinion filed September 30, 2021

In The

Eleventh Court of Appeals __________

Nos. 11-19-00347-CR & 11-19-00348-CR

__________

JOSHUA TAYLOR WEEDON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause Nos. CR25997 & CR25998

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

A jury convicted Appellant, Joshua Taylor Weedon, of the offense of

tampering with physical evidence, a third-degree felony, and the offense of 

possession of a controlled substance, methamphetamine, also a third-degree felony. 

See TEX. PENAL CODE ANN. § 37.09(a)(1), (c), (d)(1) (West 2016) (tampering); TEX.

HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (West 2017) (possession). In each 

cause, Appellant pled “True” to one enhancement allegation, and the trial court 
2

found the enhancement to be true. The trial court assessed Appellant’s punishment 

at imprisonment for fifteen years in the Institutional Division of the Texas 

Department of Criminal Justice for each conviction, set to run concurrently. In each 

appeal, Appellant challenges his conviction on three grounds: (1) that the evidence 

was legally insufficient to sustain his convictions, (2) that the trial court abused its 

discretion in refusing to grant his motion for a mistrial after the prosecutor asked an 

improper question, and (3) that the trial court abused its discretion in admitting 

physical evidence because the chain of custody was compromised. We affirm.

Background Facts

Investigator Carlyle Gover had been investigating Appellant for about a year 

before a reliable, confidential informant told Investigator Gover that Appellant had 

been routinely borrowing a car belonging to Tina Powell, a known associate of drug 

dealers in Brown County, to transport methamphetamine from the Dallas–Fort 

Worth Metroplex to Brown County about once per month. Investigator Gover 

sought and obtained a search warrant authorizing the installation of a tracking device 

on Powell’s 2010 silver Cadillac, in order to be alerted when it traveled from 

Appellant’s residence to the Dallas–Fort Worth metro area. On December 12, 2017,

Powell’s vehicle left Appellant’s residence at 2:20 a.m., arriving just outside Fort

Worth in Kennedale at 6:22 a.m., where it stayed for about five or six hours before 

heading back toward Brown County. Investigator Gover contacted Investigator

Robert Ramirez and Deputy Jose Rodriguez of the Brown County Sheriff’s Office, 

and Sergeant Brandon McMillian from the K-9 unit of the Early, Texas Police 

Department, for assistance in stopping the vehicle. Deputy Rodriguez stopped

Powell’s vehicle and discovered Appellant sitting in the driver’s seat and a woman,

Melody Luann Sims, sitting in the front passenger seat of the vehicle. 

When Sergeant McMillian arrived on the scene, he escorted the police canine 

around the vehicle, at which point the dog gave a positive alert indicating the 
3

presence of a controlled substance. At that point, Investigator Gover and 

Investigator Ramirez, began conducting a search of the vehicle for contraband. 

During that search, they found the following items: (1) a camouflage bag behind the 

driver’s seat, which contained four unused “meth pipes” and a can of butane fuel;

(2) a small, zippered bag in the driver’s side floorboard that was open and had clear 

plastic tubing protruding from it; (3) a purple “dope kit” containing a used meth pipe

and a syringe preloaded with methamphetamine in Sims’s purse; (4) a second used 

meth pipe with usable methamphetamine still stuck to the bowl in Sims’s purse but 

outside the “dope kit”; and (5) a small glass jar containing two baggies of 

methamphetamine, which was also found in Sims’s purse but outside the “dope kit.” 

Sims told the officers that the glass jar containing the baggies of methamphetamine 

belonged to Appellant and that he had handed it to her before being stopped by

Deputy Rodriguez. Both Appellant and Sims were arrested.

Discussion

I. Issue One – The evidence of care, custody, control, or management and of

concealment is sufficient to sustain Appellant’s convictions.

A. Standard of Review

We review a challenge to the sufficiency of the evidence, regardless of 

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

review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 

S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 

(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all 

of the evidence in the light most favorable to the verdict and determine whether any 

rational trier of fact could have found the essential elements of the charged offense 

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d 

729, 732 (Tex. Crim. App. 2018); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. 

App. 2010).
4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Each fact need not point directly and independently to the guilt of the 

appellant, as long as the cumulative force of all the incriminating circumstances is 

sufficient to support the conviction. Johnson v. State, 871 S.W.2d 183, 186 (Tex.

Crim. App. 1993). Circumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient 

to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). In 

short, “courts of appeals should . . . determine whether the necessary inferences are 

reasonable based upon the combined and cumulative force of all the evidence when 

viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 

16–17 (Tex. Crim. App. 2007).
5

B. Analysis

Appellant contends that the evidence is insufficient to show possession by him 

of methamphetamine because the State only showed that he was in close proximity 

to the methamphetamine. Although Sims claimed that Appellant had handed her the 

drugs prior to the stop, Sims did not testify at trial. Appellant therefore contends 

that Sims’s out-of-court statements given through the testimony of Sergeant 

McMillian cannot be used substantively to support the allegation that the drugs were 

Appellant’s nor to buttress his convictions for possession and tampering. Appellant 

argues that Sims’s statements were hearsay that did not fall within the coconspirator 

exception to the hearsay rule and that beyond Sims’s out-of-court statements, no 

other corroborating evidence linked him to the methamphetamine that the officers 

discovered in Sims’s purse. Appellant, therefore, attacks Sims’s statement as 

unconfronted hearsay that should not have been admitted by the trial court and 

should not be considered by this court in conducting our review. Appellant did not, 

however, object to the introduction of Sims’s out-of-court statement at trial and thus

failed to preserve that issue for appeal.1

 But more importantly, we consider all 

evidence admitted at trial for the purpose of a sufficiency review under Jackson v. 

Virginia. Thus, evidence that is offered and admitted from any party, even over 

Appellant’s proper objection, would still be considered in our review of the 

sufficiency of the evidence, including Sims’s hearsay statements. See Moff v. State, 

131 S.W.3d 485, 488 n.11 (Tex. Crim. App. 2004) (citing Thomas v. State, 753 

S.W.2d 688, 695 (Tex. Crim. App. 1988)). 

1

The record indicates that it was actually Appellant who initially introduced Sims’s out-of-court 

statement into evidence during cross-examination of Sergeant McMillian.

Q: Well, what did Ms. Sims tell you? I want to hear this.

A: Ms. Sims told me that the container that contained methamphetamine belonged 

to Mr. Weedon, and that he handed it to her prior to – prior to them being stopped by the 

sheriff’s office, and she didn’t know what to do with it, so she put it in her purse.
6

As to his tampering conviction, Appellant contends that he could not have 

tampered with the contraband if he never possessed it in the first place. 

Consequently, resolving Appellant’s arguments regarding his possession conviction

is dispositive of the contention asserted by Appellant as to his tampering conviction. 

In our sufficiency of the evidence review of the entire record, we note that 

evidence corroborating possession and tampering included the testimony of

Investigator Gover, who had been investigating Appellant for about a year regarding 

methamphetamine distribution. He received a tip from a reliable, confidential 

informant that Appellant had been using Tina Powell’s vehicle to retrieve 

methamphetamine from the Dallas–Fort Worth metro area and transport it back to 

Brown County. Investigator Gover testified that Dallas–Fort Worth is a hub for 

methamphetamine distribution in Texas. He was familiar with Powell through 

previous work, as she associated with known drug dealers. Based on the reliable, 

confidential informant’s tip, Investigator Gover applied for and received a search 

warrant to place a tracking device on Powell’s 2010 silver Cadillac. Investigator 

Gover testified that the vehicle left Appellant’s house on December 12, at 2:20 a.m., 

briefly stopped in Ranger, Texas, and arrived in Kennedale, Texas, just outside of 

Fort Worth, at 6:22 a.m., where it remained for only five to six hours before heading 

back toward Brown County, where it was pulled over. Investigator Gover testified 

that “drug runs” are commonly executed in the early morning hours when few 

motorists are on the roads. Importantly, it was Appellant that was driving Powell’s

vehicle, consistent with the confidential tip that the police had received. Appellant 

had a female passenger with him, Sims, which Investigator Gover explained is a 

common occurrence with male drug dealers as a security measure for hiding 

evidence in the event that they are stopped by police.

Further, Sergeant McMillian, the K-9 officer on the scene, testified that his

canine alerted to the vehicle, indicating that drugs were present. Investigator
7

Ramirez testified that he found four unused meth pipes and a can of butane fuel in 

Appellant’s own bag and that Appellant acknowledged that the pipes were his but 

characterized them as “ornaments.” When Appellant exited the vehicle at Deputy 

Rodriguez’s request, Investigator Ramirez observed, in plain view, a partially open 

bag in the floorboard of the driver’s side of the vehicle, with clear plastic tubing 

sticking out. The location and state of the bag were highly unusual, according to 

Investigator Gover—as if the bag had been placed in the floorboard to facilitate a 

hurried removal of evidence, which would explain why the bag would be situated

by the gas and brake pedals, wide open, with some of its other contents protruding. 

Further, the location of one pipe in Sims’s purse inside the “dope kit” and one inside 

her purse but outside the “dope kit” was unusual, Investigator Gover testified,

because the very purpose of a “dope kit” is to keep all contraband in a single location 

so that it is easier to abandon incriminating evidence in a moment’s notice. 

Appellant also admitted that he owned some of the drug paraphernalia, though he 

did not characterize it as such. Even if we were to ignore Sims’s statements, the jury 

could have rationally found that the other corroborating evidence detailed above 

sufficiently connected Appellant to the possession of the methamphetamine. 

In cases involving unlawful possession of a controlled substance, the State 

must prove that the accused exercised care, custody, control, or management over 

the substance and that the accused knew that the matter possessed was contraband.

Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Ibarra, 479 S.W.3d

481, 487 (Tex. App.—Eastland 2015, pet. ref’d). When the accused is not shown to 

have had exclusive possession of the place where the contraband was found, the 

evidence must link the accused to the contraband and establish that the accused’s 

connection with the drug was more than fortuitous. Evans v. State, 202 S.W.3d 158, 

161–62 (Tex. Crim. App. 2006). In such cases, appellate courts apply the well-
8

accepted “affirmative links” rule. Id. at 161. As the Court of Criminal Appeals has 

explained:

Mere presence at the location where drugs are found is thus insufficient, 

by itself, to establish actual care, custody, or control of . . . drugs.

However, presence or proximity, when combined with other evidence, 

either direct or circumstantial (e.g., “links”), may well be sufficient to 

establish that element beyond a reasonable doubt. It is . . . not the 

number of links that is dispositive, but rather the logical force of all of 

the evidence, direct and circumstantial.

Id. at 162 (footnotes omitted). Thus, “[w]hen the contraband is not in the exclusive 

possession of the defendant,” as is the case here, “a fact finder may nonetheless infer 

that the defendant intentionally or knowingly possessed the contraband if there are 

sufficient independent facts and circumstances justifying such an inference.” Tate v. 

State, 500 S.W.3d 410, 413–14 (Tex. Crim. App. 2016).

The Court of Criminal Appeals has specifically endorsed fourteen factors that 

this court may consider in determining whether there are sufficient “links” to connect 

an accused to the drugs. Id. at 414. These fourteen factors include:

(1) the accused’s presence when the search was executed; (2) whether 

the contraband was in plain view; (3) the accused’s proximity to and 

the accessibility of the contraband; (4) whether the accused was under 

the influence of a controlled substance when he was arrested; 

(5) whether the accused possessed other contraband when he was 

arrested; (6) whether the accused made incriminating statements; 

(7) whether the accused attempted to flee; (8) whether he made furtive 

gestures; (9) whether there was an odor of contraband; (10) whether 

other contraband or drug paraphernalia was present; (11) whether the 

accused owned or had the right to possess the place where the drugs 

were found; (12) whether the place the drugs were found was enclosed; 

(13) whether the accused was found with a large amount of cash; and 

(14) whether the conduct of the accused indicated a consciousness of 

guilt.

Ibarra, 479 S.W.3d at 488 (citing Evans, 202 S.W.3d at 162 n.12). These factors 

are non-exhaustive and none are to be mechanically considered in isolation. See 
9

Evans, 202 S.W.3d at 164–66. While they can help guide a court’s analysis, 

“ultimately the inquiry remains that set forth in Jackson: Based on the combined and 

cumulative force of the evidence and any reasonable inferences therefrom, was a 

jury rationally justified in finding guilt beyond a reasonable doubt?” Tate, 500

S.W.3d at 414 (citing Jackson, 443 U.S. at 318–19).

Considering the factors listed above, and the totality of the circumstances 

previously recounted, we find in the record evidence that shows: (1) that Appellant 

was present when the search was executed, (2) that he was in close proximity to and 

had access to the methamphetamine, (3) that the place in which the drugs were found 

was enclosed, (4) that other contraband or drug paraphernalia2 was present and in 

plain view, (5) that he admitted that the four unused meth pipes were his (though he 

characterized them as ornaments), (6) that he had the keys to and operated the car, 

(7) that he had the right to possess the vehicle in which the drugs were discovered, 

and (8) that his phone contained a photograph depicting what appeared to be

Appellant’s penis on top of a large pile of cash. Moreover, Sims told the arresting 

officers that the “dope kit” in her purse, which contained methamphetamine and a 

used pipe, was hers, but that the other used pipe discovered on top of the rest of the 

contents of her purse and the glass jar containing the baggies of methamphetamine, 

which were not contained within her “dope kit,” belonged to Appellant and were

given to her for purposes of concealment.

The jury, as the trier of fact, was the sole judge of the credibility of the 

witnesses and of the weight to be given to their testimony. CRIM. PROC. art. 36.13 

2

In this case, the evidence suggests that the four unused meth pipes, the can of butane, and the clear

plastic tubing found in the driver’s-side floorboard were “intended for use . . . to contain, ingest, or inhale 

a controlled substance.” See Nichols v. State, 886 S.W.2d 324, 326 (Tex. App.—Houston [1st Dist.] 1994, 

pet. ref’d); see also HEALTH & SAFETY § 481.002(17) (definition of drug paraphernalia), § 481.183 

(requiring courts to consider “all . . . logically relevant factors” to discern whether an item is drug 

paraphernalia). 
10

(West 2007), art. 38.04 (West 1979). As such, the jury was entitled to accept or 

reject any or all of the testimony of any witnesses. Adelman v. State, 828 S.W.2d 

418, 421 (Tx. Crim. App. 1992). The jury was also entitled to draw reasonable 

inferences from the evidence and resolve any evidentiary conflicts. Jackson, 443 

U.S. at 319. We have reviewed the evidence in the light most favorable to the 

verdict, and we hold that a rational trier of fact could have found beyond a reasonable 

doubt that Appellant intentionally or knowingly possessed methamphetamine. 

Because the evidence is sufficient to show that Appellant possessed the 

methamphetamine found in Sims’s purse, we overrule Appellant’s first issue in each 

appeal.

II. Issue two – The trial court did not abuse its discretion by denying 

Appellant’s motion for a mistrial; the trial court promptly instructed the jury 

to disregard the objectionable question.

A. Standard of Review

A mistrial is only appropriate “when error is so prejudicial that expenditure of 

further time and expense would be wasteful and futile.” Ladd v. State, 3 S.W.3d 

547, 567 (Tex. Crim. App. 1999). Indeed, a trial court may only exercise its 

discretion and grant a party’s motion for a mistrial “if an impartial verdict cannot be 

reached, or if a verdict of conviction could be reached but would have to be reversed 

on appeal due to an obvious procedural error.” Id. The decision to deny a motion 

for a mistrial “rests within the sound discretion of the trial court” and will only be 

disturbed if the trial court abused its discretion. State v. Gonzalez, 855 S.W.2d 692, 

696 (Tex. Crim. App. 1993). 

Merely asking an improper question, without more, will rarely warrant a 

mistrial. Hernandez v. State, 805 S.W.2d 409, 413 (Tex. Crim. App. 1990). 

Furthermore, “any harm from such a question may be cured by an instruction to 

disregard the question.” Id. at 414. Indeed, the curative effect of an instruction to 
11

the jury will suffice “except in extreme cases where it appears that the question or 

evidence is clearly calculated to inflame the minds of the jury and is of such character 

as to suggest the impossibility of withdrawing the impression produced on their 

minds.” Gonzales v. State, 685 S.W.2d 47, 49 (Tex. Crim. App. 1985); Clark v. 

State, 500 S.W.2d 469, 470 (Tex. Crim. App. 1973) accord Hernandez, 805 S.W.2d 

at 414; Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988). In order to

determine whether we are dealing with one of the rarely encountered “extreme 

cases,” the crucial question is “whether the jury was so affected by the question that 

they were unable to disregard it in their deliberations as instructed.” Huffman, 746 

S.W.2d at 218. The answer to this question will depend upon an examination of the 

peculiar facts and circumstances of the case. Hernandez, 805 S.W.2d at 414.

B. Analysis

Appellant did not testify and his trial counsel only called a single defense 

witness at trial: Patrick Tharp. Appellant managed to use Tharp’s testimony to argue

the plausibility that the tubing found in the bag in the driver’s-side floorboard was 

related to Appellant’s livelihood as a tree cutter and lawn mower, rather than for use 

as smoking paraphernalia. This was ostensibly Appellant’s sole purpose in calling 

Tharp as a witness, as no other matters were inquired of during his direct 

examination. Five questions into its cross-examination, the State asked: “[D]o you 

currently have felony charges pending?” Appellant immediately objected. The trial 

court sustained the objection and instructed the jury to disregard the question, but it 

denied Appellant’s motion for a mistrial.

To warrant a reversal for the trial court’s refusal to grant Appellant’s request 

for a mistrial, it must “appear[] that the question . . . [wa]s clearly calculated to 

inflame the minds of the jury,” and “the question must [have] be[en] obviously 

harmful to the defendant.” Gonzales, 685 S.W.2d at 49. With respect to the first 

question, it is difficult to see any proper purpose the State had for asking the 
12

question. As a general rule, “the fact that a witness, an accused or otherwise, has 

been charged with an offense is inadmissible for the purpose of impeaching him as 

to his credibility unless the charge has resulted in a final conviction for a felony or 

an offense involving moral turpitude.” Alexander v. State, 740 S.W.2d 749, 763

(Tex. Crim. App. 1987).

There is an exception to the rule against asking about pending charges, 

however, when the proffering party makes “a showing that such evidence tends to 

establish prejudice, interest, bias[,] or motive of the witness in testifying as he has.”

Id. This exception is usually afforded to criminal defendants in particular. See, e.g.,

Simmons v. State, 548 S.W.2d 386, 388 (Tex. Crim. App. 1977) (“[G]reat latitude is 

allowed the accused in showing any fact, including pending charges, which would 

tend to establish ill feeling, bias, motive, and animus on the part of any witness 

testifying against him.”). However, it has also been afforded to the State in some 

instances. See, e.g., Massengale v. State, 653 S.W.2d 20, 23 (Tex. Crim. App. 1983)

(holding that, where the defense witness had been charged with threatening State’s 

witnesses in the very same trial, State was permitted to impeach the witness about 

the charge to demonstrate her “bias, prejudice, and interest in testifying for 

appellant”). 

The exception to the general rule prohibiting the questioning of a witness 

about pending charges is limited. Evidence of pending charges is only admissible if 

the charges are “relevant to a material issue in the case and the probative value of 

the evidence outweighs its inflammatory or prejudicial potential.” Alexander, 740 

S.W.2d at 763 n.6. Whether Tharp had pending felony charges of some kind was 

not relevant to a material issue in Appellant’s case, so its potential prejudicial effect

outweighed any probative value it might have had. However, the State asserted in 

its brief that it sought to impeach Tharp with evidence of his own pending charge 

for felony possession in order to demonstrate that Tharp had an ulterior motive to 
13

testify other than to simply offer a neutral opinion as a “quasi-expert on types of 

tubing.” The prosecutor may have believed Tharp’s pending charges were relevant 

under the circumstances. The trial court disagreed, and it was well within its 

discretion to do so. However, we cannot say that the State’s purpose in asking the 

question was indisputably calculated to inflame the jury and prejudice Appellant. 

Finally, regardless of whether the question was calculated to inflame the jury,

under these facts, we cannot conclude that the State’s question in this case was 

“obviously harmful” to Appellant. During its subsequent cross-examination, after 

the trial court sustained Appellant’s objection and instructed the jury to disregard the 

improper question, the State inquired as to whether the tubing could also be 

contraband:

Q: Can that tubing also be used for the consumption of meth?

A: No, sir, not that -- not that tubing, no.

Q: Why not?

A: Because it puts off a harsh, toxic taste through the hose.

Q: Okay. And how do you know that?

A: Well, I’m a mechanic. We have to know those kinds of 

things. . . .

Q: It can’t be used to make a smoking device?

A: No, sir.

Q: It can’t because it tastes bad?

A: I don’t think anybody would ever want to taste that.

Q: And it can’t because it’s not flexible?

A: It’s -- it’s flexible, yes, but there’s no elasticity in it . . .

Q: Why would you need an elastic tube to make a meth smoking 

device?

A: That’s -- I have -- I have no clue, sir.
14

Q: You have no clue?

A: I’m just saying that -- that is a fuel line.

A jury observing this cross-examination might be justified in inferring that 

Tharp had some firsthand experience with the foul taste produced from smoking 

with the tubing in question. If the jury had reached such a conclusion, it could have 

impeached Tharp’s character to some degree, but it could also have lent credence to 

his testimony regarding the unsuitability of the tubing for use as paraphernalia.

Further, the jury may have reasonably concluded that Tharpe was not personally 

familiar with the taste but, rather, reached his conclusion deductively from 

specialized knowledge as a mechanic. 

In any case, Appellant’s argument as to how or why the State’s improper 

question should be construed as “obviously harmful” to Appellant is not clear. The 

trial court instructed the jury to disregard the State’s improper question, and a jury 

is presumed to obey a trial court’s instructions. Thrift v. State, 176 S.W.3d 221, 224 

(Tex. Crim. App. 2005). Such presumption is rebuttable, “but the appellant must 

rebut the presumption by pointing to evidence that the jury failed to follow the trial 

court’s instruction.” Id. Appellant here has pointed to no evidence to rebut the 

presumption in this case, and we are unpersuaded that the prosecutor’s improper 

question resulted in any incurable impression on the jury. 

Even had the jury failed to disregard the question as instructed, we cannot 

conclude that the result would be “obviously harmful” to Appellant. Tharp did not 

answer the question. The State gave no indication of the kind of felony that it was 

suggesting when it asked whether Tharp had charges pending. The possibility that 

Tharp had been charged with something in no way contradicts his technical claim 

about the use of the tubing in question or his claim that smoking from such tubing 

would taste bad. 
15

In short, we conclude that the State’s question was not so inflammatory that 

it could not be cured by an instruction from the trial court to disregard it, which the 

trial court did in this case. We hold that the trial court did not abuse its discretion in 

denying Appellant’s motion for mistrial. We overrule Appellant’s second issue in 

each appeal.

III. Issue Three – The police’s evidentiary chain of custody was sufficiently 

demonstrated.

A. Standard of Review

Appellate courts review a trial court’s decision regarding the admissibility of

evidence for abuse of discretion. de la Luz Torres v. State, 570 S.W.3d 874, 878 

(Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). Indeed, “[a] trial judge has great 

discretion in the admission of evidence at trial.” Druery v. State, 225 S.W.3d 491, 

503 (Tex. Crim. App. 2007). When reviewing a trial court’s decision to admit 

evidence over an attack on the chain of custody in particular, we bear in mind that 

“[p]roof of the beginning and end of the chain will support admission of the narcotics 

into evidence barring any showing of tampering or alteration.” Mello v. State, 806 

S.W.2d 875, 878 (Tex. App.—Eastland 1991, pet. ref’d). Hence, so long as the State 

accounts for the beginning and end of the chain of custody, and absent evidence of 

actual tampering, infirmities in a chain of custody do not affect the admissibility of 

the evidence but, rather, affect only “the weight that the fact-finder should give the 

evidence, which may be brought out and argued by the parties.” Druery, 225 S.W.3d 

at 504–05.

B. Analysis

Appellant does not dispute that an infirmity in the chain of custody only goes 

to the weight of the evidence rather than its admissibility, so long as the beginning 

and end are accounted for and there is no evidence of actual tampering. Nor, for that 

matter, does Appellant challenge that the State did account for the beginning and 
16

end of the chain of custody. Indeed, the State did adequately prove the beginning 

and end of the chain of custody in this case. Investigator Gover testified that he 

personally took possession of all of the items of physical evidence seized from the 

vehicle that Appellant was driving. Thus, the beginning of the chain of custody is 

accounted for here. The State further established, through Investigator Gover’s 

testimony, that he personally retrieved those same items of evidence from his own

evidence locker, to which he has the only key, and delivered them to court for 

Appellant’s trial. As such, the end of the chain of custody has also been adequately 

established. Thus, absent actual evidence of tampering, the bar for admissibility has 

been satisfied here.

Appellant concedes that “there was no specific evidence that anyone had 

tampered with the evidence at issue.” Rather, the entirety of Appellant’s argument 

is that Investigator Gover “simply placed the methamphetamine and other evidence 

seized from the vehicle on an open, accessible table in the evidence room,” at least 

for a period of time, and that such “handling of the evidence raises serious concerns 

of tampering, serious enough to require exclusion of the evidence.” This is a novel 

argument without precedent in Texas law. We decline to adopt such a rule here.

Therefore, any concern regarding accessibility of the methamphetamine in the 

evidence room goes to the weight of that evidence, not its admissibility.

The fact that, for a single evening, the evidence was left on a table in the 

evidence room, and not within Investigator Gover’s own personal evidence locker 

within that larger evidence room, goes to the weight and credibility of the physical 

evidence admitted. Indeed, Appellant’s trial counsel spent ample time attacking the 

midsection of the chain of custody for this reason. The jury was entitled to place as 

much, or as little, weight on this physical evidence as it saw fit. Hence, the trial 

court did not abuse its discretion in admitting the State’s proffer of 
17

methamphetamine and other evidence seized from the vehicle Appellant was driving 

when the police stopped him. We overrule Appellant’s third issue in each appeal. 

 This Court’s Ruling 

We affirm the judgment of the trial court in each cause. 

W. BRUCE WILLIAMS

JUSTICE

September 30, 2021

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

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.