NUMBER 13-18-00091-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

ZACHARY RYAN SIMONS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 130th District Court 

of Matagorda County, Texas.

MEMORANDUM OPINION

Before Justices Contreras, Longoria, and Hinojosa 

Memorandum 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 TEX. HEALTH & SAFETY CODE ANN.

§§ 481.102(6), 481.112 (West, Westlaw through 2017 1st C.S.). By one issue, appellant 
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argues the trial court erred when it overruled his objection to part of a witness’s testimony. 

We affirm. 

I. BACKGROUND

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 firstdegree felony. See TEX. PENAL CODE ANN. § 12.42(b) (West, Westlaw through 2017 1st 

C.S.); see also id. § 12.32 (West, Westlaw through 2017 1st C.S.) (providing that a firstdegree 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 possessed 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 saying that you want to 

purchase, is it your experience then that the 

person selling that controlled substance to you 
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anticipates that you’re going to weigh it to make 

sure you bought the right amount? 

[Defense Counsel]: Objection, calls for speculation. 

[The 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. DISCUSSION 

A. Standard of Review and Applicable Law

We review 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. 

If 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 substantial rights. 

See TEX. R. APP. 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 “substantial 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 TEX. R. APP. P. 44.2.

B. Analysis

Appellant first argues that the trial court erred when it overruled his objection to 

Sergeant Miles’s testimony because the testimony was speculative. The 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 TEX. R. APP. P. 44.2. We will assume, without 
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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 885. 

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, appellant 

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 testified, 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 eighth 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 with 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. 

. . .
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[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 they 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. After examining the entire record, we have fair assurance that 

the statement appellant objected to did not have a substantial and injurious effect or 

influence the determination of the jury’s verdict, and we conclude that any error was 

harmless. See TEX. R. APP. P. 44.2; Casey, 215 S.W.3d at 885; Motilla, 78 S.W.3d 359–

60. 

Finally, appellant also argues that Miles’s testimony was an improper opinion 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. TEX. R. APP. P. 33.1(a)(1); Rhoades 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. 
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Crim. App. 1993) (en banc); see Wilson 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 TEX. R. APP. P. 33.1(a)(1); Camacho, 864 S.W.2d at 

533.

We overrule appellant’s sole issue. 

III. CONCLUSION

We affirm the trial court’s judgment.

DORI CONTRERAS

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

16th day of August, 2018.