## NUMBER 13 - 18 - 00091 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

ZACHARY RYAN SIMONS , Appellant,

v. THE STATE OF TEXAS , A ppellee.

On appeal from the 130 th District Court of Matagorda County, Texas.



## MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa Memoran dum Opinion by Justice Contreras Appellant Zachary Ryan Simons appeals from a judgment of conviction for possession of between one and four grams of methamphetamine, a controlled substance, with intent to deliver, a second

- degree felony. See T EX

. H EALTH & S AFETY C ODE A NN

. §§ 481.102(6), 481 .112 (West, Westlaw through 2017 1st C.S.). By one issue, appellant2

argues the trial court erred when it overrul ed his objection to part of a witness’ s testimony. We affirm.
I. B ACKGROUND Appellant was arrested during a traffic stop for an outstanding warrant. In the vehicle, police found methamphetamine, plastic bags of different sizes, and a digital scale. On May 23, 2017, appellant was indicted for possession of a controlled substance
with intent to deliver. See id. §§ 481.102(6), 481 .112. The State also alleged a prior felony conviction for the purpose of enhancing appellant’s punishment to that of a first

degree felony. See T EX

. P ENAL C ODE A NN . § 12.42(b) (West, Westlaw through 2017 1st C.S.); see also id. § 12.32 (West, Westlaw th rough 2017 1st C.S.) (providing that a first

degree felony is punishable by imprisonment for a term between five to ninety

- nine years and a fine not to exceed $10,000). He pleaded not guilty and proceeded to trial. At trial, appellant admitted that he p ossessed the controlled substance, but he disputed the “intent to deliver” element. Tyler Miles, a sergeant with the Matagorda County Sheriff’s Office, testified for the State. Miles explained that he is assigned to the narcotics task force in Matagorda County and testified about his familiarity with the sale and use of narcotics in the area. As the State questioned Miles on redirect regarding his experience with controlled purchases , the following exchange occurred: [State]: Sergeant Miles, so I don’t leave something left open, when you’re making those purchases, when you’re purchasing the controlled substance and you tell someone that, hey, we want to purchase whatever amount, a gram, eight

- ball, whatever it is, when you’re undercover what you’re sayin g that you want to purchase, is it your experience then that the person selling that controlled substance to you3 anticipates that you’re going to weigh it to make sure you bought the right amount? [Defense Counsel]: Objection, calls for speculation. [T he Court]: Overruled. [Miles]: Yes, sir. [State]: So would you typically be walking in with digital scales and say I want to weigh that before I buy it? [Miles]: I’ve never taken a scale in and weighed it. They’ve always

— the person selling it weighs it. [State]: Okay. That’s

— maybe I was

— maybe I was confusing in my question. My question is: Does the purchaser

— is the purchaser, you, expected to be weighing with your scales the amount that the dealer is selling to you? [Miles]: No, sir. The jury found appellant guilty of the offense as charged, and appellant pleaded true as to the enhancement allegation. The jury found the enhancement allegation to be true, sentenced appellant to life imprisonment in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $5,000 fine. See id. §§ 12.32, 12.42(b). This appeal followed.
II. D ISCUSSION A. Standard of Review and Applicable Law
We re view a trial court’s decision on the admissibility of evidence for an abuse of
discretion. Torres v. State , 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing Burden v. State , 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)); see Ellison v. State , 201 S.W.3d 714 , 723 (Tex. Crim. App. 2006). A trial court abuses its discretion if it acts arbitrarily or without reference to guiding rules or principles. State v. Thomas , 428 S.W.3d 99, 103 (Tex. Crim.4

App. 2014). We will not reverse the trial court’s ruling unless the ruling falls outside the zone of reasonable disagreement. Torres , 71 S.W.3d at 760.
I f we find error regarding the admissibility of evidence, we will disregard the error as harmless if it was non

- constitutional and did not affect appellant’s substa ntial rights. See T EX

. R. A PP

. P. 44.2(a), (b); Barshaw v. State , 342 S.W.3d 91, 93 (Tex. Crim. App. 2001). An erroneous evidentiary ruling is generally non

- constitutional error. See Potier v. State , 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) (en banc) ( “Erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights to present a meaningful defense.”); see also Casey v. State , 215 S.W.3d 870, 884

– 85 (Tex. Crim. App. 2007); cf. Jones v. State , 119 S.W.3d 766, 776

– 77 (Tex. Crim. App. 2003) (en banc) (noting that the admission of defendant’s confession was evidentiary error of constitutional nature because the confession was obtained without Miranda warnings in violation of the Fifth Amendment). An appellant’s “substan tial rights are not affected by the erroneous admission of evidence ‘if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.’” Motilla v. State , 78 S.W.3d 352 , 355 (Tex. Crim. App. 2002) (quoting Solomon v. State , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)); see T EX

. R. A PP

. P. 44.2

. B. Analysis
A ppellant first argues that the trial court erred when i t overruled his objection to Sergeant Miles’s testimony because the testimony was speculative. T he alleged evidentiary error appellant complains of is non

- constitutional. See Jones , 119 S.W.3d at
776

– 77; Potier

, 68 S.W.3d at 663; see also T EX

. R. A PP

. P. 44.2 . We will assume, without5

deciding, that the trial court erred in overruling appellant’s objection and proceed to analyze whether the alleged error had a substantial and injurious effect in determining the jury’s verdict. See Casey , 215 S.W.3d at 88 5. Here, appellant did not dispute the physical evidence obtained during his arrest, which included a digital scale, plastic bags of different sizes, and methamphetamine, and he admitted to being in possession of the controlled substance ; however, appella nt disputed the “intent to deliver” element. Setting aside the statement objected to by appellant, the rest of Sergeant Miles’s testimony extensively illustrated why the items in appellant’s possession were indicative of the “intent to deliver” element. Miles explained , without objection, that methamphetamine is typically sold in plastic bags of different sizes consistent with the ones found on appellant’s possession and that drug dealers typically use digital scales to weigh the drugs they sell. Miles t estified, in part, as follows: [State]: Okay. Now, in the preparation of these controlled

substances for delivery

— I mean, you’ve talked about different weight measurements. You talked about grams. You talked about quarter ounces. You’ve talked about e ighth of an ounce. How is it then that someone who is preparing these drugs for delivery knows how much that is? [Sergeant Miles]: Well, typically, when we find the narcotics on

somebody who has been distributing them, they have scales that they have wi th them. They usually

— usually digital scales. Sometimes we’ve found weighted scales, but they measure them before they sell it. [State]: So they can

— so they have digital scales that will

measure those amounts and perhaps even convert grams to ounces so they can sell whatever amount is being requested? [Sergeant Miles]: Yes, sir. Yes, sir.

. . .6

[State]: When you have arrested an end user, who is nothing

more than an addict, do you find them with hundreds of Ziploc bags of various sizes that are consistent with the packaging and resale of controlled substances? [Sergeant Miles]: No, sir. [State]: Do you find them with digital scales capable of

measuring .1 gram or .1 ounce, which is typically used for the packaging and disturbing of the thing the y use? [Sergeant Miles]: No, sir. Appellant did not offer evidence or testimony to rebut any of the testimony provided by
Miles , and the complained

- of statement was largely cumulative of the other evidence presented by the State to show the “intent to deliver” element of the offense. Further, the question appellant objected to

— which Miles answered in the affirmative

— asked whether a person who purchased drugs would weigh the drugs after the purchase

. Miles’s answer , arguably, could have casted doubt on whether his possession of a digital scale really
indicated an intent to sell. A fter examining the entire record, we have fair assurance that
the statement appellant objected to did not have a substan tial and injurious effect or influence the determination of the jury’s verdict , and we conclude that any error was harmless

. See T EX

. R. A PP

. P. 44.2; Casey , 215 S.W.3d at 885 ; Motilla , 78 S.W.3d 35 9

– 60

. Finally, appellant also argues that Miles’s testim ony was an improper opini on on an ultimate issue of fact; however, appellant did not object on this ground at the trial court. To preserve an issue for appeal, a party must timely object, stating the specific legal
basis. T EX

. R. A PP

. P. 33.1(a)(1); Rhoa des v. State , 934 S.W.2d 113, 121, 127 (Tex. Crim. App. 1996) (en banc). An objection stating one legal theory may not be used to support a different legal theory on appeal. Camacho v. State , 864 S.W.2d 524, 533 (Tex.7

Crim. App. 1993) (en banc); see Wils on v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (“[T]he point of error on appeal must comport with the objection made at trial.”). Here, appellant objected on the basis that Miles’s testimony was speculative, not that it
addressed an ultimate issue of fact. Accordingly, we conclude that this argument was not preserved for appellate review. See T EX

. R. A PP

. P . 33.1(a)(1); Camacho , 864 S.W.2d at
533. We overrule appellant’s sole issue.
III. C ONCLUSION We affirm the trial court’s judgment.

DORI CONTRERAS Justice Do not publish. T EX

. R. A PP

. P . 47.2(b). Delivered and filed the 16th day of August , 2018

.