Kervin Eugene Bryant v. the State of Texas

NUMBER 13-21-00230-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KERVIN EUGENE BRYANT, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Silva
Memorandum Opinion by Justice Longoria
Appellant Kervin Eugene Bryant was found guilty by a jury of possession with intent
to deliver between four and two hundred grams of cocaine, a first-degree felony. See TEX.
HEALTH & SAFETY CODE ANN. § 481.112(a), (d). Having found an enhancement paragraph
true, the jury sentenced Bryant to ninety-nine years’ imprisonment in the Correctional
Institutions Division of the Texas Department of Criminal Justice and assessed a $10,000
fine. By twelve issues, which we reorganize and renumber, Bryant argues the trial court
abused its discretion when it: (1) denied his motion to suppress; (2) denied his discovery
request; (3) denied his motion for continuance; (4) denied his objection to a presentation
slide during jury selection; (5) overruled his objection to the State’s reference to a person
during opening statements; (6) admitted various pieces of evidence and testimony over
his objection; and (7) denied his motion for mistrial. We affirm.
I. BACKGROUND
On December 5, 2018, Victoria Police Department (VPD) officers Timothy
Ramirez, Justin Garcia, Steven Castaneda, and Ricardo Soto arrived at Crossroads
Apartments (Crossroads) in Victoria, Texas at approximately 1:45 p.m. The officers went
to Crossroads to serve two arrest warrants on Bryant. 1 Michelle Gallegos, manager for
Crossroads, informed the officers which apartment Bryant lived in and provided them a
key to enter his apartment. Just after 2:00 p.m., the officers knocked on the door to
Bryant’s apartment and announced their presence. After receiving no response, the
officers used the key provided by Gallegos to unlock the door to Bryant’s apartment;
however, the door could not open all the way due to a chain lock from the inside. Through
the open crack of the door, Ramirez observed a person standing inside the apartment
and detected a strong odor of unburnt marijuana coming from inside the residence.
Ramirez thereafter breached the door with his foot. Bryant was ordered to turn away and
walk backwards towards the officers; Bryant complied and was placed in handcuffs.
1 The two arrest warrants were for two separate offenses of manufacture/delivery of a controlled
substance, Penalty Group 1, in an amount between four and two hundred grams. See TEX. HEALTH &
SAFETY CODE ANN. § 481.112(a).
2
Upon Bryant’s arrest, Castaneda performed a pat-down search of Bryant and
found keys inside Bryant’s pockets, which were later set aside and held as Bryant’s “jail
property.” After Bryant was arrested, Ramirez, Garcia, and Castaneda entered the
apartment to conduct a safety sweep to determine if any other persons were inside and
found none. However, the officers detected a strong scent of unburnt marijuana inside
the apartment. After the safety sweep, the officers exited the apartment. Castaneda
transported Bryant to jail, and Soto left the scene to obtain a search warrant, the basis of
which was the odor of unburnt marijuana inside Bryant’s apartment and the previous
knowledge and investigation of Bryant’s involvement in the manufacture, delivery,
storage, and sale of illegal narcotics.
The search warrant was signed by a magistrate at 3:45 pm. After the search
warrant was signed, officers re-entered Bryant’s apartment to execute the warrant and
found a locked safe in Bryant’s bedroom closet. Ramirez called Castaneda and asked
him whether there was a set of keys found on Bryant when he was taken to jail. Castaneda
then went to the jail at 4:05 p.m. to obtain the set of keys from Bryant’s “jail property,” and
left the jail at 4:11 p.m. to transport the keys back to Bryant’s apartment. Officers used
the keys obtained from Bryant’s “jail property” to unlock the safe and found crack cocaine,
powder cocaine, marijuana, ecstasy, Adderall pills, and synthetic marijuana. A revolver,
a piece of paper with a list of names, and $500 in cash in multiple denominations were
also found inside the safe. The substances found in the safe were later sent to the Corpus
Christi Crime Lab. The lab tested one of the substances and determined it was cocaine,
which had a net weight of 28.6 grams, including adulterants and dilutants.
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Bryant was later indicted and tried for committing three criminal offenses:
possession with intent to deliver between four and two hundred grams of cocaine (Count
1), see TEX. HEALTH & SAFETY CODE ANN. § 481.112(a); tampering with physical evidence
(Count 2), see TEX. PENAL CODE ANN. § 37.09; and unlawful possession of a firearm
(Count 3), see id. § 46.04. Counts 2 and 3 were abandoned by the State during trial. The
jury found Bryant guilty of possession with intent to deliver between two and four hundred
grams of cocaine (Count 1). This appeal ensued.
II. MOTION TO SUPPRESS
In his first issue, Bryant contends the trial court abused its discretion when it denied
his motion to suppress the contents of the safe, which he argues were obtained in
violation of his Fourth Amendment rights. As part of his first issue, Bryant presents three
sub-issues which we address separately below.
On May 7, 2021, the trial court held a hearing on Bryant’s suppression motion. At
the suppression hearing, Bryant argued that the search of his home was illegal because
officers conducted the search prior to obtaining a search warrant. Bryant also argued that
the search warrant itself was not valid with respect to the contents of the safe:
[T]here was no mention of the safe . . . in that search warrant . . . .There is
nothing linking [Bryant] to a safe in the apartment, and the probable cause
claimed in the affidavit was merely based on basically [Bryant’s] name.
There’s no linking to [Bryant] at that location . . . to the search warrant there,
only an arrest warrant for two prior incidents.
After the State responded, Bryant waived his right to remain silent and testified as follows:
[Counsel]: Are you the Kervin Bryant mentioned in the
arrest warrants?
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[Bryant]: Yes, sir, I am.
[Counsel]: Okay. And can you tell us where you were living
on December 5th, 2018?
[Bryant]: 1603 Azalea Street, Victoria, Texas, Apartment
C2.
[Counsel]: Were you arrested at 1603 Azalea Street,
Victoria, Texas, Apartment C2?
[Bryant]: Yes, I was.
[Counsel]: Were you arrested at 3:00 p.m. on that day at
that location?
[Bryant]: Yes, I was.
[Counsel]: Are you aware of the arrest warrants
that . . . contained your name?
[Bryant]: Yes, I was.
[Counsel]: Okay. Were you shown these arrest warrants
when you were arrested?
[Bryant]: No, I wasn’t.
[Counsel]: Are you aware of a search warrant that
contained your name?
[Bryant]: No, I wasn’t, until recently.
[Counsel]: Was the search warrant presented to you at
3:00 p.m. when you were arrested?
[Bryant]: No.
No other witness or evidence was presented to the trial court. Bryant’s counsel argued
the following:
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The evidence presented is the evidence in the search warrant. The search
warrant was stamped at 3:45 p.m., your Honor.
The evidence also presented is, if the Court may take judicial notice of the
officer’s complaint, the officer’s complaint by Mr. Garcia, that the arrest was
executed at 1500 hours, which is 3:00 p.m., which is well before that search
warrant was signed by the magistrate, your Honor; and that’s fruits of the
poison[ous] tree to search the safe. That’s protected by the Fourth
Amendment, your Honor.
Whether or not my client has an extensive history, a protective sweep does
not involve the search of a safe. The smell of unburned marijuana, your
Honor, does not involve exigency in the search of the safe, specifically in
the search warrant that was made retroactively. Forty-five minutes while
police are at the scene, your Honor, is unacceptable for the Fourth
Amendment going forward, your Honor.
The State responded that Bryant had put forth no evidence to support quashing the
search warrant. The trial court orally denied Bryant’s suppression motion, having
pronounced the following:
For the Court to go outside the four corners of the affidavits in the search
warrants, the Court would have to make a determination that there was
some sort of false statement made in the search warrants affidavits.
At this time, based on the testimony that was presented, the defendant has
not presented any type of evidence demonstrating that there was any false
or misleading allegations in the affidavits, in the search warrant, or the arrest
warrants.
Therefore, . . . [Bryant’s] [m]otion to [s]uppress . . . [is] denied.
The trial court later entered findings of fact and conclusions of law pertaining to its denial
of Bryant’s suppression motion.
A. Standard of Review & Applicable Law
“[A] pretrial motion to suppress evidence is nothing more than a specialized
objection to the admissibility of that evidence.” Black v. State, 362 S.W.3d 626, 633 (Tex.
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Crim. App. 2012) (cleaned up). We review a trial court’s ruling on a motion to suppress
under a bifurcated standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex.
Crim. App. 2018). We review the trial court’s factual findings for an abuse of discretion
but review the trial court’s application of the law to the facts de novo. Id. Our deferential
review of the trial court’s factual determinations also applies to the trial court’s conclusions
regarding mixed questions of law and fact that turn on credibility or demeanor. State v.
Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012); Valtierra v. State, 310 S.W.3d 442,
447 (Tex. Crim. App. 2010). We review mixed questions of law and fact that do not turn
on credibility and demeanor, as well as purely legal questions, de novo. State v. Woodard,
341 S.W.3d 404, 410 (Tex. Crim. App. 2011).
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. CONST. amend. IV. “[T]he ultimate touchstone of the Fourth Amendment is
‘reasonableness.’” Riley v. California, 573 U.S. 373, 381–82 (2014) (quoting Brigham City
v. Stuart, 547 U.S. 398, 403 (2006)). Generally, for a search or seizure to be deemed
reasonable, a warrant must be granted beforehand. Maryland v. Dyson, 527 U.S. 465,
466 (1999).
No search warrant may legally issue unless it is based on probable cause that
evidence of a crime will be found at the place to be searched. See U.S. CONST. amend.
IV; TEX. CONST. art. I, § 9; TEX. CODE CRIM. PROC. ANN. art. 1.06. Probable cause exists
7
for Fourth Amendment purposes when, “under the totality of the circumstances, there is
a fair probability or substantial chance that contraband or evidence of a crime will be found
at the specified location.” Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013);
see Illinois v. Gates, 462 U.S. 213, 238–39 (1983); State v. Duarte, 389 S.W.3d 349, 354
(Tex. Crim. App. 2012). There must be “a sufficient nexus between criminal activity, the
things to be seized, and the place to be searched.” Bonds, 403 S.W.3d at 873.
When reviewing a magistrate’s decision to issue a warrant, appellate courts apply
a highly deferential standard of review because of the constitutional preference for
searches conducted pursuant to a warrant over warrantless searches. State v. McLain,
337 S.W.3d 268, 271–72 (Tex. Crim. App. 2011). “This is a flexible, non[-]demanding
standard.” Duarte, 389 S.W.3d at 354. The duty of reviewing courts is to ensure a
magistrate had a “substantial basis” for concluding that probable cause existed. Id.Reviewing courts must give great deference to a magistrate’s probable cause
determination, including a magistrate’s implicit finding. McLain, 337 S.W.3d at 271–72.
Even in close cases, reviewing courts give great deference to a magistrate’s probable
cause determination to encourage police officers to use the warrant process. Duarte, 389
S.W.3d at 354. When in doubt, reviewing courts should defer to all reasonable inferences
a magistrate could have made. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App.
2007). Reviewing courts should not invalidate a warrant by interpreting an affidavit in a
hyper-technical rather than commonsense manner. Id. at 61 n.25; McLain, 337 S.W.3d
at 272. In determining whether an affidavit provides probable cause to support a search
warrant, an issuing court and a reviewing court are constrained to the four corners of the
8
affidavit. McLain, 337 S.W.3d at 271.
When, as here, the trial court makes explicit findings of fact, we determine whether
the evidence, when viewed in the light most favorable to the trial court’s ruling, supports
the findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We afford the
prevailing party the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn from that evidence. State v. Duran, 396 S.W.3d 563, 571
(Tex. Crim. App. 2013). We will uphold the trial court’s ruling if it is reasonably supported
by the record and is correct on any theory of law applicable to the case. Lerma, 543
S.W.3d at 190; State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014).
B. Sufficiency of Supporting Affidavit
In his first sub-issue, Bryant argues that “[t]he [search] warrant was illegally issued
because[ ]the supporting affidavit does not reflect sufficient probable cause to justify the
issuance of a search warrant.” In its findings of fact and conclusions of law, the trial court
stated:
The Court finds that a valid search warrant was issued on December 5,
2018 at 3:45 p.m.
....
[Bryant] did not specifically state that the warrant lacked probable
cause. However, [Bryant] alleged that the warrant is “not valid” and there is
“nothing linking up” [Bryant] to a safe in the apartment searched. The Court
finds that [Bryant’s] argument is that the affidavit does not have sufficient
probable cause to search the residence and any container located at the
apartment. Probable cause is sufficient to support a search warrant if the
facts contained within the four corners of the affidavit and the reasonable
inferences drawn therefrom justify the magistrate’s conclusion that the
object of the search is probably on the premises at the time of the issuance
of the warrant.
9
....
After reviewing the four corners of the affidavit the Court finds that
there was probable cause to search the residence of [Bryant].
“The threshold issue in every Fourth Amendment analysis is whether a particular
government action constitutes a ‘search’ or ‘seizure’ within the meaning of the
Amendment.” Sims v. State, 569 S.W.3d 634, 643 (Tex. Crim. App. 2019). The “physical
entry of the home is the chief evil against which the wording of the Fourth Amendment is
directed.” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (cleaned up). In addition,
“[i]ndividuals have a reasonable expectation of privacy in the contents of closed
containers.” Salinas v. State, 625 S.W.3d 203, 212 (Tex. App.—Corpus Christi–Edinburg
2021, pet. ref’d) (cleaned up). Consequently, Fourth Amendment protections generally
require the State to obtain a search warrant supported by probable cause before acquiring
the contents of closed containers, such as the locked safe involved in this case. See
United States v. Ross, 456 U.S. 798, 822–23 (1982) (“[T]he Fourth Amendment provides
protection to the owner of every container that conceals its contents from plain view.”).
Considering the four corners of the affidavit, we conclude that the affidavit contains
sufficient particularized facts to have allowed the magistrate a substantial basis to
determine probable cause existed for a warrant to search Bryant’s home. See Duarte,
389 S.W.3d at 354. The affidavit describes that VPD officers noticed an odor of fresh
unburnt marijuana when they entered Bryant’s apartment to execute two arrest warrants.
In addition, the affidavit also describes that VPD officers knew Bryant to be involved in
the manufacture, delivery, storage, and sale of illegal narcotics through numerous prior
10
investigations. The affidavit contains a sufficient nexus between criminal activity—the
possession of illegal narcotics and contraband, the things to be seized, and the place to
be searched. See Bonds, 403 S.W.3d at 873.
Bryant further argues, within this sub-issue, that the “warrant lacked reliability due
to the time it was executed versus the time of the search.” There was no evidence
presented at the suppression hearing establishing that VPD officers executed their search
prior to obtaining the signed search warrant. We overrule this sub-issue.
C. Scope of Search Warrant
In his next sub-issue, Bryant argues that “the safe searched by the State was
enclosed property not included in the search warrant and as such the search was
unlawful.” In its findings of fact and conclusions of law, the trial court stated:
The Court finds that the warrant authorized a search of places where
contraband could be stored or found. The warrant specifically authorizes
the search and seizure of “contraband,” “criminal instruments,” “materials
used in packing and distribution of illegal controlled substances” and
“currency.” The Court further finds that a “safe” does meet the description
of a place where contraband could be stored or found. The Court finds that
it is reasonable to believe that the safe may fall under the definition(s) of a
criminal instrument or a place where either contraband or currency could be
stored. Therefore, though not specifically listed, the Court finds it is
reasonable to believe that members of law enforcement were authorized to
seize and search the safe located at the residence.
In this case, the search warrant expressly stated 1603 Azalea St Apt #C2 as the
place to be searched and included a written physical description and location of the
building, including Bryant’s specific unit within it. The search warrant also expressly listed
possession of marijuana as the suspected criminal activity and authorized the seizure of
“[c]ontraband,” “[c]riminal instruments,” and “[i]mplements, instruments, and/or
11
instrumentalities tending to connect the suspects to the alleged offense(s), suspected
location(s), any seized contraband and all items specifically named within the affidavit.”
Furthermore, the search warrant specifically authorized seizure of a laundry-list of items,
including, among other things: “[i]llegal narcotics or controlled substances”;
“[p]araphernalia used to manufacture controlled substances or consume controlled
substances”; “US Currency”; “[c]ellular phones”; “[m]aterials used in packaging, cutting,
weighing and distribution of illegal controlled substances”; and “illegally possessed
firearms.”
The term “safe” is not expressly written in the search warrant. However, we agree
with the reasoning of the trial court—a safe is a place where items authorized to be seized
by the search warrant, i.e., illegal narcotics and controlled substances, contraband, or
currency, could be found. Based on the totality of the circumstances, we conclude that it
was reasonable for officers to believe that the safe might contain items authorized to be
seized by the search warrant. See Ross, 456 U.S. at 820–21 (“A lawful search of fixed
premises generally extends to the entire area in which the object of the search may be
found and is not limited by the possibility that separate acts of entry or opening may be
required to complete the search. Thus, a warrant that authorizes an officer to search a
home for illegal weapons also provides authority to open closets, chests, drawers, and
containers in which the weapon might be found. . . . When a legitimate search is under
way, and when its purpose and its limits have been precisely defined, nice distinctions
between closets, drawers, and containers, in the case of a home . . . must give way to the
interest in the prompt and efficient completion of the task at hand.”); Marsh v. State, 115
12
S.W.3d 709, 714 (Tex. App.—Austin, 2003 pet ref’d.) (holding that items authorized to be
searched for and seized by a search warrant could be concealed in a safe found at the
scene and then holding that officers did not engage in an exploratory search unauthorized
by a search warrant when opening the safe); $19,070.00 v. State, 869 S.W.2d 608, 613
(Tex. App.—Houston [14th Dist.] 1994, no pet.) (holding that search of safe and seizure
of currency found therein was not outside of scope of search warrant for controlled
substances). Because VPD officers could lawfully search the safe pursuant to the search
warrant, the State was not required to obtain a separate search warrant specifically
authorizing the search of the safe. We overrule this sub-issue.
D. Key to the Safe Obtained from Bryant’s “Jail Property”
In his final sub-issue, Bryant argues that “the key that opened the safe was
improperly seized from [Bryant’s] property secured at the jail without a warrant.” In its
findings of fact and conclusions of law, the trial court stated:
The safe containing the contraband was opened by a key the defendant
possessed when arrested. The key was removed from the defendant at the
time he was processed at the jail and placed in a jail property room. The
Court finds said key was placed in the defendant’s property at the jail. The
Court further finds that the key was removed from the defendant’s
possession when the key was placed in the jail property room. Once the key
was placed in the jail property room, the defendant no longer had
possession of the key. A member of the police department removed the key
from the jail property room and took the key to the location of the apartment
where the search was being conducted. The key was used at the location
of the search to open the safe.
The defendant argues that he had an expectation of privacy with
regard to his property stored at the jail property room. An accused’s
expectation of privacy where he [sic]: (a) by his conduct, he exhibited an
actual subjective expectation of privacy, a genuine intention to preserve
something as private; and (b) that circumstances existed under which
13
society was prepared to recognize his subjective expectation as objectively
reasonable. Villarreal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996)[]
(citing Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L.
Ed. 2d 220 (1979)). See also Oles v. State, 993 S.W.2d 103, 108 (Tex.
Crim. App. 1999).
The Court finds that law enforcement was authorized to remove the
key from the jail property room and use it to open the safe because the
defendant did not have an expectation of privacy when the key was placed
in the jail property room. An individual in custody does not have an
expectation of privacy for property held for them at jail. Oles v. State, 993
S.W.2d 103 (Tex. Crim. App. 1999). Therefore, law enforcement did not
need to secure a warrant to search the defendant’s possessions being held
at the jail property room.
We first conclude that the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports its factual findings. See Kelly, 204 S.W.3d at 818. Here, the
record establishes that during execution of the search warrant at Bryant’s apartment, VPD
officers found a safe and unlocked it with keys that had been found in Bryant’s pocket
after his arrest.
The keys were obtained after a lawful search incident to arrest. See State v.
Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014) (“Under the Fourth Amendment,
police officers may search an arrestee incident to a lawful arrest.”); State v. Drury, 560
S.W.3d 752, 755 (Tex. App.—Fort Worth, 2018, pet ref’d). In his brief, Bryant claims that
he had an expectation of privacy in the seized keys, and concludes, without further
argument, that the trial court’s judgment should be reversed. Bryant’s argument implies
that VPD officers’ removal of the keys from the jail property room constitutes a second
“seizure,” cites no authority supporting that proposition, and we have found none.
However, assuming without deciding that the officers’ actions in removing the keys from
14
the property room constituted a “seizure,” we conclude those actions were reasonable.
See Riley, 573 U.S. at 381–82. (“[T]he ultimate touchstone of the Fourth Amendment is
‘reasonableness.’”).
“The Fourth Amendment does not prohibit all seizures, but only those that are
unreasonable.” State v. Sanchez, 856 S.W.2d 166, 168 (Tex. Crim. App. 1993). Whether
a seizure is reasonable “depends upon all of the circumstances surrounding the search
or seizure and the nature of the search or seizure itself.” United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985). “The Fourth Amendment imposes limits on search
and seizure powers in order to prevent law enforcement officials from arbitrary and
oppressive interference with an individual’s privacy and personal security.” Garcia v.
State, 853 S.W.2d 157, 159 (Tex. App.—Corpus Christi–Edinburg, 1993, pet. ref’d) (citing
United States v. Martinez–Fuerte, 428 U.S. 543, 555 (1976)). “Thus, the permissibility of
a particular law enforcement practice ‘is judged by balancing its intrusion on the
individual’s Fourth Amendment interests against its promotion of legitimate governmental
interests.’” Id. (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)).
“The government has a legitimate interest in identification and storage of an
inmate’s property.” Alford v. State, 358 S.W.3d 647, 661 (Tex. Crim. App. 2012).
“Accordingly, the Texas Administrative Code requires that ‘[u]pon intake, a file on each
inmate shall be established,’ which ‘shall include inmate property inventory.’” Id. (quoting
37 TEX. ADMIN. CODE ANN. § 265.4(a)(11)). “The Code then provides that ‘[t]he receiving
officer shall carefully record and store the inmate’s property as it is taken.’” Id. (quoting
37 TEX. ADMIN. CODE ANN. § 265.10). “The Supreme Court has also held, in the Fourth
15
Amendment context, that ‘it is reasonable for police to search the personal effects of a
person under lawful arrest as part of the routine administrative procedure at a police
station house incident to booking and jailing the suspect.’” Id. (quoting Illinois v. Lafayette,
462 U.S. 640, 643 (1983)). However, the Supreme Court has also noted that “[t]he
reasonableness of any particular governmental activity does not necessarily or invariably
turn on the existence of alternative ‘less intrusive’ means.” Lafayette, 462 U.S. at 647.
We also note that “‘arrestees do retain some level of privacy interest in the personal
effects or belongings taken from them incident to their arrest,’ but . . . there is a lesser
subjective expectation of privacy and a lesser societal expectation of privacy in
inventoried property.” Granville, 423 S.W.3d at 411 (quoting Oles v. State, 993 S.W.2d
103, 108 (Tex. Crim. App. 1999)).
We have found no case analyzing the reasonableness of a police officer’s retrieval
of lawfully seized keys from an arrestee’s “jail property” and the subsequent use of those
keys to open a closed container found in the arrestee’s residence pursuant to a valid
search warrant. However, in the context of automobile inventory searches, courts have
upheld an officer’s use of seized keys to open a closed container in a vehicle. See 1975
Chevrolet v. State, 801 S.W.2d 565, 566–67 (Tex. App.—Dallas 1990, writ denied)
(upholding the inventory search of a closed container found in a vehicle because the
police department’s policy was to open locked containers if the police had access to the
keys of the container); see also Abulughod v. State, No. 2-06-102-CR, 2007 WL 2084255,
at *2 (Tex. App.—Fort Worth, July 19, 2007, pet. ref’d) (mem. op., not designated for
publication) (holding that the seizure of a key from the appellant’s person was lawful, then
16
holding that an officer’s use of the key to open the trunk of the appellant’s vehicle was not
fruit of the poisonous tree). Though not directly analogous, we find 1975 Chevrolet and
Abulughod instructive as these cases demonstrate that the use of a key to open a closed
container found in a vehicle is proper when police officers lawfully seized or had lawful
access to a key and vehicle. See 1975 Chevrolet, 801 S.W.2d at 566–67; see also
Abulughod, 2007 WL 2084255, at *2.
The record demonstrates that the seized keys were set aside as “jail property” after
Bryant’s arrest, as opposed to being tagged as evidence. The seized keys were retrieved
from Bryant’s “jail property” only after officers discovered the safe during execution of the
search warrant—the point where the nexus between the seized keys and the offense for
which Bryant was suspected of committing under the search warrant, possession of
marijuana, became apparent to officers. Ramirez testified regarding other means in which
officers could open a safe during execution of a search warrant—“[w]e can break it with
a . . . hammer, halligan, a pry bar, and damage the property.” However, Ramirez also
testified that using keys was a more common way to open a safe and that the seized keys
were used to open Bryant’s safe in order to “not . . . damage the property.” Ramirez
indicated that the keys were not returned to Bryant’s “jail property” but stated “I believe
we tagged [the keys] . . . into evidence as safekeeping.”
Given that VPD officers lawfully possessed the seized keys after conducting a
search incident to arrest and could lawfully search the safe pursuant to a valid search
warrant, we hold that the officers’ action in retrieving the seized keys from Bryant’s “jail
property” and using the seized keys to open the safe was not unreasonable. See Riley,
17
573 U.S. at 381–82; see also 1975 Chevrolet, 801 S.W.2d at 566–67; Abulughod, 2007
WL 2084255, at *2. Thus, the trial court did not abuse its discretion in denying Bryant’s
motion to suppress. See Lerma, 543 S.W.3d at 190; Story, 445 S.W.3d at 732. We
overrule this sub-issue and the entirety of Bryant’s first issue.
III. DISCOVERY REQUEST
In his second issue, Bryant argues that the trial court abused its discretion when it
denied his discovery request for certain original photographs.
During a pretrial hearing on July 14, 2021, five days before trial commenced,
Bryant orally requested a continuance in order to obtain, among other things, photographs
of the crime scene. The trial court suggested “[i]f you believe that that evidence exists,
then you can issue a subpoena for whoever that person is that would contain that
evidence.” The State informed the trial court that discovery was made available to Bryant
on March 15, 2021, which included a “DVD with photographs contained on it.” Bryant did
not contest the State’s statement regarding discovery. Instead, Bryant urged that he could
not properly prepare for trial without receiving certain evidence:
[Bryant]: The evidence is the—the camera that Officer
Ramirez took, the digital camera used by VPD.
He took pictures, 51 photos of the inside of the
apartment and of all the evidence that he
allegedly found inside the safe. Okay. Those
pictures was [sic] uploaded to the PDF file, but
it’s not showing the timestamp and the
timeframe that he took those pictures, because
the—the way they’re angled and the way they
were taken and uploaded on to the website. But
the original pictures should show the automatic
date and timestamp.
18
[The Court]: There[ are] certain requirements that the State
needs to comply with before those pictures
would be admitted into evidence. If the State is
not—is unable to comply with those predicate
questions, then those pictures would be
inadmissible.
[Bryant]: Okay. Because he’s trying to—he’s—he has the
PDF file photos to be used against me. I want
the originals, because that’s got something to
deal with the—with what I’m claiming is illegal
search and seizure.
[The Court]: All right. Your attorney can subpoena whatever
photos that you’re—that it is that you’re
requesting.
....
[The Court]: Whatever the information is that you’re
requesting, your attorney can ask for it. I don’t
know what that—what the evidence is for your
case.
[Bryant]: All right.
[The Court]: If you’re alleging that the officer manipulated
photographs or did not—or wasn’t truthful with
regards to testimony that he may have
presented during the search of the residence,
then those allegations could be asked about
during cross-examination of the officer. That
could consequently cause evidence to be
inadmissible and your attorney would have to
pursue that line of questioning throughout the
trial. I don’t know what—if that evidence exists
or not, because I’m not privy as to what the facts
of this case are.
On July 16, 2021, three days before trial commenced, Bryant filed his “Motion For
Access to Physical Evidence” which alleged that the State possessed, among other
19
things, “[t]he 51 original copies of pictures with time stamps . . . of the searched contents
of the . . . [s]afe searched . . . during execution of the search warrant of [Bryant’s] alleged
home on December 5, 2018,” and requested that these photographs be made available
to him before trial. The record contains no oral or written order ruling on this motion prior
to trial.
A. Standard of Review & Applicable Law
A trial court’s ruling on pretrial discovery is reviewed for an abuse of discretion.
Branum v. State, 535 S.W.3d 217, 224 (Tex. App.—Fort Worth 2017, no pet.).
Article 39.14(a) of the code of criminal procedure requires the State, upon timely
request, to produce and permit the inspection and electronic duplication of “material”
evidence by the defense. TEX. CODE CRIM. PROC ANN. art. 39.14(a); see Watkins v. State,
619 S.W.3d 265, 290 (Tex. Crim. App. 2021) (defining “material” under Article 39.14 as
“having a logical connection to a consequential fact” and “synonymous with ‘relevant’”).
Article 39.14(a) also provides that the State “may provide to the defendant electronic
duplicates of any documents or other information described by this article.” TEX. CODE
CRIM. PROC ANN. art. 39.14(a) The State has an additional, affirmative duty to disclose
“exculpatory, impeachment, or mitigating” materials that “tend[ ] to negate the guilt of the
defendant or would tend to reduce the punishment for the offense charged.” Id. art.
39.14(h).
B. Discussion
Bryant argues that the photographs he requested constituted material evidence
and that the State’s failure to provide him the requested photographs violated Article
20
39.14. See id. at 39.14(a). Here, the trial court implicitly denied Bryant’s request to compel
the State to produce the original photographs.
We first note that the record establishes that photographs of the contents of the
safe were made available to Bryant by the State. Bryant himself indicated to the trial court
that he had received them, but nevertheless alleged that the photographs he had received
were “not showing the timestamp and the timeframe [of when Ramirez] took those
pictures” and suggested, without evidence, that “the original pictures should show the
automatic date and timestamp.” The photographs were admitted at trial as State’s Exhibit
1, a DVD disc which had a PDF file containing all the photographs. At the pretrial hearing,
Bryant referred to the photographs he had received from the State as the “PDF file
photos.” Under Article 39.14(a), the State “may provide to the defendant electronic
duplicates of any documents or other information described by this article.” TEX. CODE
CRIM. PROC ANN. art. 39.14(a). We find that the PDF file provided to Bryant was an
“electronic duplicate” properly allowed under Article 39.14(a). Id. In addition, nothing in
the record establishes that the content of the photographs was manipulated or altered in
any way by the State. We also note that there is nothing in the record demonstrating what
the alleged withheld evidence would have shown regarding Bryant’s contention that
officers illegally searched his apartment before obtaining a search warrant. Accordingly,
the trial court did not err in implicitly denying Bryant’s discovery request. See Branum,
535 S.W.3d at 224. We overrule Bryant’s second issue.
IV. CONTINUANCE
In his third issue, Bryant argues that the trial court abused its discretion when it
21
denied his oral motion for continuance. Motions for continuance in criminal proceedings
must be in writing and set forth sufficient cause for the continuance. See TEX. CODE CRIM.
PROC. ANN. art. 29.03. Moreover, “[a]ll motions for continuance must be sworn to by a
person having personal knowledge of the facts relied on for the continuance.” Id. art.
29.08. A motion for continuance that is not sworn preserves nothing for appellate review.
See Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009).
Here, nothing in the record demonstrates that Bryant filed a written and sworn
motion for continuance as required by the Texas Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. ANN. art. 29.03. Therefore, Bryant has 2 preserved nothing for our
review. See Anderson, 301 S.W.3d at 279. We overrule Bryant’s third issue.
V. USE OF PRESENTATION SLIDE DURING VOIR DIRE AND OPENING STATEMENTS
In his fourth issue, Bryant argues that the trial court abused its discretion in
overruling his objection to the State’s use of a presentation slide during voir dire which
contained an image of a fictional violent drug dealer from a television show. However, in
his brief, Bryant does not present any argument or cite pertinent legal authority related to
this issue. See TEX. R. APP. P. 38.1(i) (“[A] brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
record.”). Therefore, Bryant has waived this issue through inadequate briefing. See id.;
Wolfe v. State, 509 S.W.3d 325, 342–43 (Tex. Crim. App. 2017) (noting that we have no
obligation to make an appellant’s argument for him); Lucio v. State, 353 S.W.3d 873, 877–
2The record demonstrates that Bryant made an oral motion for continuance at the July 14, 2021
pretrial hearing, as well as on the first day of his trial. Both oral motions were orally denied by the trial court.
22
78 (Tex. Crim. App. 2011) (finding a point of error inadequately briefed where the brief
contains a single-sentence assertion and is unaccompanied by any other argument or
authorities).
We note that in his brief, as part of his fourth issue, Bryant raises an issue which
is related to but distinct from the voir dire issue he inadequately briefed. Bryant argues
that the State made improper opening statements “equating [Bryant] to a violent fictional
drug dealer” through the State’s use of the image. In order for an issue to be preserved
on appeal, there must be a timely objection that specifically states the legal basis for the
objection. TEX. R. APP. P. 33.1(a). “The purpose of requiring a specific objection in the
trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him
the opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to
the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). Failure
to properly object and preserve a complaint waives any appellate review of the matter.
See Vidaurri v. State, 49 S.W.3d 880, 885–86 (Tex. Crim. App. 2001). Nothing in the
record indicates that the State used the complained-of image during its opening
statements, nor is there an objection by Bryant related to such alleged use. Therefore,
Bryant has not preserved this issue on appeal and has waived any appellate review of
the matter. TEX. R. APP. P. 33.1(a); see Vidaurri, 49 S.W.3d at 885–86. We overrule
Bryant’s fourth issue.
VI. STATE’S OPENING STATEMENT
In his fifth issue, Bryant argues that the trial court abused its discretion in denying
his objection to the State’s reference to Leslie Lamar during its opening statement.
23
A. Standard of Review & Applicable Law
We review a trial court’s rulings on opening statements for an abuse of discretion.
See Donnell v. State, 191 S.W.3d 864, 867 (Tex. App.—Waco 2006, no pet.). It is an
abuse of discretion only if the trial court’s ruling is outside the “zone of reasonable
disagreement.” Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1990) (op. on reh’g)). A trial court’s ruling should be upheld so long as it is correct under
any valid legal theory, regardless of whether the reason was argued before the court. See
Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012).
A prosecutor’s opening statement is authorized by article 36.01. See TEX. CODE
CRIM. PROC. ANN. art. 36.01(a)(3). The opening statement should inform the jury of the
nature of the accusation and the facts which are expected to be proved by the State. See
id.; Taylor v. State, 947 S.W.2d 698, 706 (Tex. App.—Fort Worth 1997, pet. ref’d).
However, an opening statement in which a party engages in jury argument, rather than
stating to the jury the nature of the issues and the evidence that the party expects to be
produced, is improper. See Hullaby v. State, 911 S.W.2d 921, 927 (Tex. App.—Fort Worth
1995, pet. ref’d). In reviewing whether improper comments by the prosecutor during
opening statement constitute reversible error, an appellate court must determine whether,
when viewed in conjunction with the record as a whole, the statement was so prejudicial
as to deny appellant a fair trial. Herrera v. State, 915 S.W.2d 94, 97 (Tex. App.—San
Antonio 1996, no pet.).
B. Discussion
During the State’s opening statement to the jury, the prosecutor spoke about the
24
protective sweep that VPD officers conducted after gaining entry to Bryant’s apartment
and referenced Lamar as a person whom officers knew to be Bryant’s associate in the
sale of drugs. Bryant objected to the State’s reference to Lamar:
[The State]: They conducted a protective sweep of the
apartment for their own officer safety, which
they’re also allowed to do. You’ll hear the
officers knew the defendant to sell drugs with
another individual by the name of Leslie Lamar.
And they had a female romantic partner they
knew him to associate with and aren’t just going
to take the drug dealer’s word for it that nobody
else is in the house.
[Bryant]: Objection, Your Honor. That’s irrelevant.
[The Court]: That’s what?
[Bryant]: Mr. Lamar isn’t relevant to this case at hand,
Your Honor. He’s not even in any report here,
Your Honor.
[The Court]: Objection is overruled. This is opening
statements.
In his brief, Bryant argues that in referencing Lamar, the State “sought to introduce
additional accusations” and “introduced evidence during its opening [that the State] did
not intend to argue at trial.” Bryant further argues that “an opening statement in which the
prosecutor engages in jury argument, rather than stating to the jury the nature of the
accusations and the evidence that the prosecution expects to produce, is improper.”
However, Bryant’s only trial objection to the State’s reference to Lamar during its
opening statement regarded relevance. Bryant did not object on any of the grounds he
now raises on appeal—that the State introduced evidence during its opening that the
25
State “did not expect to produce,” “did not intend to argue at trial,” and engaged in
improper jury argument. His trial objections therefore do not comport with his complaints
on appeal; thus, he has not preserved his fifth issue for review. See Hallmark v. State,
541 S.W.3d 167, 171 (Tex. Crim. App. 2017) (concluding defendant’s claim on appeal
must comport with objection preserved in trial court to be preserved for appellate review);
Brock v. State, 495 S.W.3d 1, 12 (Tex. App.—Waco 2016, pet. ref’d) (“Brock objected
that the message had not been properly authenticated. Because Brock did not make a
specific objection under Texas Rule of Evidence 403 at the time the evidence was
introduced, we conclude that Brock’s complaint on appeal does not comport with his trial-
court objection.”); see also TEX. R. APP. P. 33.1(a). We overrule Bryant’s fifth issue.
VII. ADMISSION OF EVIDENCE AND TESTIMONY
In his sixth issue, Bryant argues that the trial court abused its discretion when it
admitted various evidence and testimony. As part of his sixth issue, Bryant argues four
sub-issues that we address separately below.
A. Standard of Review
We review a trial judge’s decision on the admissibility of evidence under an abuse
of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016)
(citing Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)). Under that
standard, a trial court’s ruling will only be deemed an abuse of discretion if it is so clearly
wrong as to lie outside “the zone of reasonable disagreement,” Lopez v. State, 86 S.W.3d
228, 230 (Tex. Crim. App. 2002), or is “arbitrary or unreasonable,” State v. Mechler, 153
S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided
26
that the trial court’s decision “is reasonably supported by the record and is correct under
any theory of law applicable to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex.
Crim. App. 2005). In addition, an appellate court reviews the trial court’s ruling in light of
the record before the court “at the time the ruling was made.” Khoshayand v. State, 179
S.W.3d 779, 784 (Tex. App.—Dallas 2005, no pet.).
B. Discussion
1. State’s Exhibits 15–17
In his first sub-issue, Bryant claims that the trial court abused its discretion when it
admitted State’s Exhibits 15–17 into evidence. State’s Exhibit 15 was a copy of a written
lease agreement between Crossroads, Bryant, and Maria Moreno; State’s Exhibit 16 was
a copy of Bryant’s driver’s license; and State’s Exhibit 17 was a copy of Moreno’s
identification card. At trial, Bryant objected to the admission of these exhibits on the
grounds that he had not been provided the evidence prior to trial. The State informed the
court that the evidence was newly received and that there was no opportunity to present
it to the defense. The trial court took the objection under advisement. Bryant then
challenged the authenticity of the documents. The trial court overruled Bryant’s
authenticity objection and halted proceedings for a lunch recess. Bryant was given an
opportunity to review the exhibits over the lunch recess. Once proceedings resumed after
the lunch recess, Bryant informed the trial court that he did not have any additional
objections to the documents and the trial court announced that “The objection [in ]regards
to 39.14, the rules of discovery, is overruled.”
Bryant principally argues on appeal that the State was required to timely produce
27
the three exhibits pursuant to Article 39.14, and therefore, the exhibits should not have
been admitted as evidence. 3 See TEX. CODE CRIM. PROC ANN. art. 39.14. Article 39.14(a)
requires the State, “as soon as practicable” after receiving a timely request, to produce
and permit the inspection and electronic duplication of “material” evidence by the defense.
Id. § 39.14(a); see Watkins, 619 S.W.3d at 290. Arguably, the record demonstrates that
the State did not produce the exhibits “as soon as practicable”; however, assuming
without deciding that the State violated Article 39.14, we find that Bryant’s substantial
rights were unaffected.
“[W]hen only a statutory violation is claimed, the error must be treated as non-
constitutional for the purpose of conducting a harm analysis . . . .” Gray v. State, 159
S.W.3d 95, 98 (Tex. Crim. App. 2005). Rule 44.2(b) requires reviewing courts to disregard
any non-constitutional error that does not affect appellant’s substantial rights. TEX. R. APP.
P. 44.2(b); see Williamson v. State, No. 04-20-00268-CR, 2021 WL 4976326, at *3–4
(Tex. App.—San Antonio May 25, 2022, writ denied) (applying Rule 44.2(b) harm analysis
to Article 39.14 violation); Branum, 535 S.W.3d at 225–26 (same); Ziegler v. State, No.
04-15-00559-CR, 2016 WL 5795208, at *2 (Tex. App.—San Antonio Oct. 5, 2016, no
pet.) (mem. op., not designated for publication) (same).
Here, the record indicates that Bryant had about an hour to inspect the documents
during the lunch recess. Bryant did not assert to the trial court, nor here on appeal, that
3 Bryant also argues that the trial court’s ruling violated his rights under Article I, Section 10 of the
Texas constitution, and the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution;
however, Bryant did not object to State’s Exhibits 15–17 on those basis. Therefore, we conclude that Bryant
has failed to preserve those claims for our review. See Tex. R. App. P. 33.1(a)(1)(A); Vidaurri, 49 S.W.3d
at 885–86.
28
the time he had to inspect the complained-of exhibits was inadequate. It is not evident
how the tardy revelation of the exhibits’ role in the State’s case substantially impaired
Bryant’s actual defense posture at trial, nor does Bryant explain how his defensive
posture could have materially improved had he been alerted to the significance of the
exhibits earlier. 4 See TEX. R. APP. P. 44.2(b) (stating that non-constitutional error which
does not affect substantial rights must be disregarded). Given the facts of this case, we
cannot say the trial court’s admission of the exhibits into evidence was “clearly wrong,”
arbitrary or unreasonable. See Lopez, 86 S.W.3d at 230; Mechler, 153 S.W.3d at 439.
We overrule this sub-issue.
2. Admission of Photos
In his next sub-issue, Bryant claims that the trial court abused its discretion when
it admitted State’s Exhibit 1, a DVD of photographs depicting Bryant’s apartment and the
contents of the safe.
In his brief, Bryant argues that “[t]he photographs offered as evidence as State’s
Exhibit 1 were not the originals of the photographs sought.” Bryant also claims that it was
error for the trial court to deny his request to “review the original, time-stamped
photographs to those offered as State’s Exhibit 1 to compare them.” Under the Texas
Rules of Evidence, “[a]n original . . . photograph is required in order to prove its content
unless these rules or other law provides otherwise.” TEX. R. EVID. 1002. However, “[a]
4 Arguably the significance of the complained-of exhibits was that they were documents showing
where Bryant lived. Bryant illuminates no other significance to these exhibits in his brief and we note that
Ramirez’s and Garcia’s testimony established that Bryant lived at Crossroads prior to admission of the
complained-of exhibits. We also note that Bryant did not object to State’s Exhibits 15-17 on the basis that
said exhibits were “needlessly” cumulative under Rule 403. See TEX. R. EVID. 403.
29
duplicate is admissible to the same extent as the original unless a question is raised about
the original’s authenticity or the circumstances make it unfair to admit the duplicate.” TEX.
R. EVID. 1003. We construe Bryant’s claim as an argument that State’s Exhibit 1 was not
sufficiently authenticated. See TEX. R. EVID. 901(a).
Rule 901(a) of the Texas Rules of Evidence provides that for a party to satisfy the
requirement of authenticating or identifying an item of evidence, “the proponent must
produce evidence sufficient to support a finding that the item is what the proponent claims
it is.” TEX. R. EVID. 901(a). Rule 901(b) “does not erect a particularly high hurdle” for
authentication, Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no
pet.), and provides a nonexclusive list of methods for authenticating evidence. TEX. R.
EVID. 901(b). “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); see also Butler v. State, 459 S.W.3d 595, 602 (Tex. Crim.
App. 2015); Mata v. State, 517 S.W.3d 257, 266 (Tex. App.—Corpus Christi–Edinburg
2017, pet. ref’d).
Moreover, under the rules of evidence, the trial court need not be persuaded that
the proffered evidence is authentic. See TEX. R. EVID. 104(a); Tienda, 358 S.W.3d at 638.
Rather, the preliminary question for the trial court to decide is simply whether the
proponent of the evidence has supplied facts that are sufficient to support a determination
by a reasonable jury that the proffered evidence is authentic. Tienda, 358 S.W.3d at 638.
The proponent of evidence need not rule out all possibilities inconsistent with authenticity,
30
nor must he prove beyond any doubt that the evidence is what it purports to be. See
Campbell, 382 S.W.3d at 548; see also Segovia v. State, 467 S.W.3d 545, 551 (Tex.
App.—San Antonio 2015, pet. ref’d). “The trial judge does not abuse his or her discretion
in admitting evidence where he or she reasonably believes that a reasonable juror could
find that the evidence has been authenticated or identified.” Druery v. State, 225 S.W.3d
491, 502 (Tex. Crim. App. 2007); Mitchell v. State, 419 S.W.3d 655, 659 (Tex. App.—San
Antonio 2013, pet. ref’d).
Prior to admission of State’s Exhibit 1 and outside the presence of the jury, Bryant
conducted a voir dire examination of Ramirez regarding the photographs. During the voir
dire examination, Ramirez testified that he had taken the photos with his work phone, and
he then transferred the photos from his work phone to his work computer using a USB
cord. The following colloquy occurred:
[Bryant]: Should this have digital time stamps there?
[Ramirez]: Yes, sir.
[Bryant]: Would they be made by the computer or the
camera?
[Ramirez]: I’m not—I can’t answer that question.
[Bryant]: No? Okay. Does your camera usually give you
a time stamp when you take pictures?
[Ramirez]: I don’t check it to tell you that.
[Bryant]: You don’t check it?
[Ramirez]: No.
[Bryant]: Have you ever checked it to give you a time
31
stamp?
[Ramirez]: I’m sure I have, yes, sir.
When Bryant asked “[w]ere those photos downloaded from the phone and then sent to
this CD/DVD?”, Ramirez replied: “[The p]hotos were downloaded from my phone to the
computer. I don’t—without seeing what’s on that disc, I can’t answer you for sure.”
Ramirez further testified that he had seen the photos after he took them and had seen
them after the photos were transferred to his computer; that the photos were downloaded
from the phone to a computer and stored in a drive; and that the photos stored on the
computer were “originals.” After Bryant finished his examination, he requested that the
“original photographs” be produced to authenticate State’s Exhibit 1 “[b]ased on no time
stamps”—which we construe as an objection to State’s Exhibit 1’s authencity. The trial
court asked Bryant “[s]o you want [Ramirez] to produce the original photographs that
were—that are in his phone?”, and Bryant replied “Yes, Your Honor.” The trial court asked
Ramirez “[d]o you still have those?”, and Ramirez replied, “No, sir, I do not.” The trial court
denied Bryant’s request. Bryant made no further arguments. The next day, in the
presence of the jury, the trial court announced that Bryant’s objection to State’s Exhibit 1
was overruled and that the exhibit was admitted.
Here, Ramirez testified as the State’s sponsoring witness. Prior to admission of
State’s Exhibit 1, Ramirez testified that he recognized the exhibit as “photos from that
day” because “[i]t has the case number to our investigation and is labeled ‘photos.’”
Ramirez acknowledged that the photos were ones he took himself inside Bryant’s
residence during execution of the search warrant, and affirmed that the photos had not
32
been altered or tampered with in any way. Such testimony is sufficient to support a
determination by a reasonable jury that the proffered evidence is authentic. See Tienda,
358 S.W.3d at 638.
In his brief, Bryant argues that the “original photographs” contained “time-stamped
information critical to the defense”—re-urging much of the same arguments from his
second issue regarding his discovery request, which we have already rejected. Though
Ramirez testified that the original photographs “should” contain digital time stamps, his
subsequent testimony otherwise indicated that he was not certain. As we discussed in
Bryant’s second issue, nothing in the record otherwise establishes that the content of the
photographs was manipulated or altered in any way by the State.
To the extent that Bryant impliedly argues against the authenticity of State’s Exhibit
1 due to lack of time stamps, we note that the State “need [not] ‘rule out all possibilities
inconsistent with authenticity,’” nor “prove beyond any doubt that the evidence is what it
purports to be.” See Campbell, 382 S.W.3d at 549; Segovia, 467 S.W.3d at 551; see also
TEX. R. EVID. 1003. To the extent that Bryant impliedly argues that admission of duplicates
was unfair due to the lack of time stamps, we note again, as we did in discussing Bryant’s
second issue, that there is no evidence demonstrating what the alleged time stamps
would have shown. See TEX. R. EVID. 1003. Thus, Bryant has not shown that admission
of State’s Exhibit 1 was unfair. Given the circumstances of this case, we cannot say the
trial court’s admission of State’s Exhibit 1 was “clearly wrong,” arbitrary, or unreasonable.
33
See Lopez, 86 S.W.3d at 230; Mechler, 153 S.W.3d at 439. We overrule this sub-issue. 5
3. Admission of Officer’s Opinion Testimony
In his next sub-issue, Bryant claims that the trial court abused its discretion when
it allowed “speculative testimony of a non-expert.”
Bryant complains of two instances of what he terms “speculative testimony of a
non-expert.” In one instance, Bryant argues Ramirez “was allowed to speculate as to the
chemical composition of various pills.” Ramirez testified that, based on his training and
experience, he believed the pills found in the safe to be furosemide and Adderall, for
which he did not find a prescription. In the second instance, Bryant argues Ramirez “was
allowed to speculate as to the chemical composition of various substances and
beverages.” Ramirez testified that two types of medicines were found in the safe that
could be mixed with a beverage to “get a type of high.” As to both instances, Bryant
specifically argues that Ramirez was not designated or qualified as an expert of narcotic
substances, and “[a]s a non-expert, that made his scientific analysis speculative.”
With respect to his speculation objection, Bryant only objected after Ramirez
answered the question. See TEX. R. EVID. 103 (requiring that objections be both timely
and specific); TEX. R. APP. P. 33.1(a); Dinkins v. State, 894 S.W.2d 330, 335 (Tex. Crim.
App. 1995) (providing that an objection should be made as soon as the grounds therefor
5 Bryant additionally claims that the admission of State’s Exhibit 1 was in violation of the Fifth and
Fourteenth Amendments to the U.S. Constitution and “the protections afforded by Brady v. Maryland, 373
U.S. 83 (1963).” However, Bryant failed to object to the admission of State’s Exhibit 1 on that basis.
Therefore, Bryant did not preserve that issue on appeal and has waived any appellate review of the matter.
TEX. R. APP. P. 33.1(a); see also Vidaurri, 49 S.W.3d at 885–86. In addition, Bryant’s trial objections do not
comport with his claim on appeal; therefore, he has not preserved this claim for review. See Hallmark, 541
S.W.3d at 171; Brock, 495 S.W.3d at 12; Ybarra v. State, 890 S.W.2d 98, 115 (Tex. App.—San Antonio
1995, writ denied).
34
become apparent). Bryant has shown no reason to justify the delay. See Lagrone v. State,
942 S.W.2d 602, 618 (Tex. Crim. App.1997) (“If a defendant fails to object until after an
objectionable question has been asked and answered, and he can show no legitimate
reason to justify the delay, his objection is untimely and error is waived.”). Therefore,
Bryant’s speculation objections were untimely and improper. See TEX. R. EVID. 103; TEX.
R. APP. P. 33.1(a).
Moreover, the record demonstrates that Bryant never objected on the basis that
Ramirez did not qualify as an expert under Rule 702. See TEX. R. EVID. 702 (“A witness
who is qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to determine
a fact in issue.”). Furthermore, Bryant did not object to Ramirez’s testimony as being
improper lay opinion testimony under Rule 701. See TEX. R. EVID. 701; Osbourn v. State,
92 S.W.3d 531, 535 (Tex. Crim. App. 2002) (holding officer’s testimony regarding her
identification of marihuana was admissible as a lay opinion); Davis v. State, 313 S.W.3d
317, 349 (Tex. Crim. App. 2010) (holding detective’s testimony—regarding the rate of
animal decay and a cat’s time of death—was admissible as a lay opinion). Bryant’s trial
objections do not comport with his complaints on appeal; therefore, he has not preserved
this sub-issue for review. See Hallmark, 541 S.W.3d at 171; Brock, 495 S.W.3d at 12;
Ybarra v. State, 890 S.W.2d 98, 115 (Tex. App.—San Antonio 1995, writ denied), 890
S.W.2d at 115. We overrule this sub-issue.
35
4. Extraneous Offense
In his final sub-issue, Bryant claims that the trial court abused its discretion when
it allowed extraneous evidence of firearm possession.
On the first day of trial, after the indictment was read to the jury but before the
State called its first witness, the State abandoned Count 3 outside the presence of the
jury. After the State abandoned Count 3, it called Ramirez, its first witness, to testify.
Ramirez testified that a firearm was found in Bryant’s safe, and that possession of a
firearm and narcotics was indicative of narcotics trafficking. Bryant did not object to this
testimony. On the second day of trial, Ramirez testified regarding a picture of the firearm
located in the safe and gave details about the firearm. Bryant objected, requesting that
the trial court inform the jury that the gun charge had been dropped; however, the trial
court informed Bryant that the jury would only be charged as to the remaining count
against him.
Bryant argues that the objected-to testimony regarding the firearm was “for an
offense that had already been abandoned by the State, its admission was prejudicial, not
probative, and in general to make [Bryant] appear to the jury as a ‘bad guy’ rather than
consider the evidence before them.” See TEX. R. EVID. 403 (providing that evidence is
inadmissible “if its probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence”); TEX. R. EVID. 404(b)(1) (“Evidence of a crime, wrong,
or other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.”). The record
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demonstrates that Bryant did not object to Ramirez’s testimony about the firearm on the
first day of trial and only did so once Ramirez testified about the firearm again on the
second day of trial. Bryant has shown no reason justifying the delay; thus, his objection
was untimely and waived. See TEX. R. EVID. 103; TEX. R. APP. P. 33.1(a); see also Dinkins,
894 S.W.2d at 335; Lagrone, 942 S.W.2d at 618; Crocker v. State, 573 S.W.2d 190, 201
(Tex. Crim. App. 1978) (“It is well established that the improper admission of evidence
does not constitute reversible error if the same facts are shown by other evidence which
is not challenged.”). We overrule this sub-issue and Bryant’s entire sixth issue.
VIII. MISTRIAL
In his seventh issue, Bryant argues that the trial court abused its discretion when
it denied his motion for mistrial following a witness’s characterization of him as a “known
drug dealer.”
During trial, Soto testified that he was the officer who wrote and signed the affidavit
for the search warrant of Bryant’s apartment. Soto testified that his probable cause came
from “the very obvious odor of fresh unburnt marijuana coming from inside of the
residence, along with the fact that [Bryant] is a known narcotics dealer.” Bryant, after
additional questions were asked of Soto, objected to Soto’s characterization of him as a
“known drug dealer.” Outside the presence of the jury, the trial court ruled that Bryant’s
objection was untimely and waived. The trial court then asked “Is . . . [Bryant] requesting
an instruction for the Court to have the jury disregard [the complained-of testimony]?” and
Bryant stated “Yes, Your Honor.” Bryant then suggested to the trial court that his objection
was untimely because “the question was really fast” and asked that the objection be
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preserved. The trial court reiterated that the objection was waived, and noted that Bryant’s
objection took place two questions past the complained-of testimony. The jury returned,
and the trial court nevertheless instructed the jury to disregard Soto’s statement:
[The Court]: All the jurors have taken a seat. Everyone may
be seated. Ladies and gentlemen, the Court is
instructing you to disregard the statement by the
witness characterizing Mr. Bryant as a “known
drug dealer.”
Court will also instruct you that the law requires
that you—at this time the defendant is
presumed to be innocent unless guilt is
established by legal evidence received before
you in the trial of this case beyond a reasonable
doubt.
After the trial court instructed the jury to disregard, Bryant made a request for a mistrial,
which was denied by the trial court. Bryant now claims on appeal that the trial court ruling
constituted an abuse of discretion.
A. Standard of Review & Applicable Law
To preserve error, an appellant must present a timely objection to the trial court,
state the specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a);
see Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). In accordance with
Rule 33.1, a motion for mistrial must be both timely and specific. Griggs, 213 S.W.3d at927 (citing Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (en banc)). A motion
for mistrial is timely only if it is made as soon as the grounds for it become apparent. Id.(citing Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App.1994) (en banc)).
A trial court’s denial of a mistrial is reviewed for an abuse of discretion. Ocon v.
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State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (citing Ladd v. State, 3 S.W.3d 547,
567 (Tex. Crim. App. 1999)). An appellate court views the evidence in the light most
favorable to the trial court’s ruling, considering only those arguments before the court at
the time of the ruling. Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App.
2004)). The ruling must be upheld if it was within the zone of reasonable disagreement.
Id. (citing Wead, 129 S.W.3d at 129).
“A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow class
of highly prejudicial and incurable errors.” Ocon, 284 S.W.3d at 884 (first citing Hawkins
v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); and then citing Wood v. State, 18
S.W.3d 642, 648 (Tex. Crim. App. 2000)). A mistrial halts trial proceedings when error is
so prejudicial that expenditure of further time and expense would be wasteful and futile.
Id. (citing Ladd, 3 S.W.3d at 567). Whether an error requires a mistrial must be determined
by the particular facts of the case. Id.Because it is an extreme remedy, a mistrial should be granted “only when residual
prejudice remains” after less drastic alternatives are explored. Id. at 884–85 (citing
Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)). “Less drastic alternatives
include instructing the jury ‘to consider as evidence only the testimony and exhibits
admitted through witnesses on the stand,’ and, questioning the jury ‘about the extent of
any prejudice,’ if instructions alone do not sufficiently cure the problem.” Id. at 885 (citing
Arizona v. Washington, 434 U.S. 497, 521–22 (1978) (White, J., dissenting)). “Though
requesting lesser remedies is not a prerequisite to a motion for mistrial, when the movant
does not first request a lesser remedy, we will not reverse the court’s judgment if the
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problem could have been cured by the less drastic alternative.” Id. (citing Young, 137
S.W.3d at 70).
B. Discussion
In the instant case, we hold that Bryant’s motion for mistrial was untimely and
unpreserved. The grounds for Bryant’s motion for mistrial first became apparent during
Soto’s testimony, but Bryant failed to object or move for mistrial until, as the trial court
noted, two questions past the complained-of testimony. See TEX. R. APP. P. 33.1(a); see
Griggs, 213 S.W.3d at 927 (quoting Young, 137 S.W.3d at 70) (“If a party delays [his]
motion for mistrial, and by failing to object allows for the introduction of further
objectionable testimony or comments and greater accumulation of harm, the party could
no more rely on the untimely motion for mistrial than on an untimely objection.”).
Even if Bryant timely preserved his motion for mistrial, “a prompt instruction to
disregard the testimony at issue . . . ordinarily will cure any prejudice arising from the
testimony.” Ludwig v. State, 428 S.W.3d 344, 350 (Tex. App.—Amarillo, 2014 no pet.)
(citing Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000)). Bryant does not
suggest on appeal that residual prejudice remained after the trial court promptly instructed
the jury to disregard the complained-of testimony. See Ocon, 284 S.W.3d at 884–85.
(“Because it is an extreme remedy, a mistrial should be granted ‘only when residual
prejudice remains’ after less drastic alternatives are explored.”). In addition, we generally
presume that the jury follows the trial court’s instructions in the manner presented.
Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009); Thrift v. State, 176
S.W.3d 221, 224 (Tex. Crim. App. 2005). The presumption is refutable, but the appellant
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must rebut the presumption by pointing to evidence that the jury failed to follow the trial
court’s instructions. Thrift, 176 S.W.3d at 224. This is because “the degree of harm
demonstrated by an appellant must be actual, not merely theoretical.” Bradshaw v. State,
244 S.W.3d 490, 497–98 (Tex. App.—Texarkana 2007, pet. ref’d). Here, no such showing
has been made. We overrule Bryant’s seventh issue.
IX. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
23rd day of February, 2023.
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