Opinion issued July 15, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00525-CR ——————————— KEVIN BRADLEY BARNES, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas Trial Court Case No. 22-CR-1076
MEMORANDUM OPINION
Kevin Bradley Barnes appeals his conviction for possession with the intent
to deliver more than 200 but less than 400 grams of methamphetamine. See TEX.
HEALTH & SAFETY CODE § 481.112(a), (e). He was sentenced to 18 years’ imprisonment. On appeal, he argues that the evidence was insufficient to support
his conviction and that the court erred by admitting certain evidence. We affirm.
Background
Following a traffic stop in Santa Fe, Texas, Barnes was arrested and charged
with possession with intent to deliver between 200 and 400 grams of
methamphetamine. He proceeded to a jury trial. At trial, Officer J. Danesi of the
Santa Fe Police Department testified that he initiated the traffic stop after
observing Barnes’s truck “mov[ing] over to oncoming traffic for no apparent
reason.” He stopped the truck, which was pulling an empty flatbed trailer
displaying an Alaska license plate, because it was failing to maintain a single
marked lane. Officer Danesi knew the area had lots of bars and testified that in his
tenure, he had made several arrests in the area for driving while intoxicated
(“DWI”).
When Officer Danesi approached the vehicle, he checked Barnes and the
female passenger’s identification.1 Both had active warrants for their arrest, so he
asked them to get out of the truck while dispatch verified the warrants. Officer
Danesi testified that the passenger was Ashley Woodard and that his partner stood
with her while he attended to Barnes.
1 Officer Danesi identified Barnes in court as the driver he pulled over. 2 Officer Danesi detained Barnes, patting him down as part of the detention
while waiting for confirmation of the outstanding warrants from dispatch. Barnes
consented to a search of his pockets. Officer Danesi found about $1,400 in cash
and a baggie containing what he thought was crystal methamphetamine in the
pocket of the shorts Barnes was wearing. Officer Danesi testified that Barnes
started “freaking out a little bit” when the drugs were found.
Officer Danesi then searched Barnes’s four-door pickup truck. In the
driver’s side door, Officer Danesi found a bottle of fake urine. Under the front
passenger seat, he found a broken glass pipe used for smoking methamphetamine.
He also found a black backpack on the floorboard of the back seat. Inside the
backpack, he found bags containing what he believed was crystal
methamphetamines of different colors. The drugs were stored in plastic bags like
the bag recovered from Barnes’s pocket. He also found a scale with drug residue
on it. Officer Danesi suspected that Barnes sold methamphetamine based on the
cash in Barnes’s pocket, the large amount of methamphetamine, and the scale in
the backpack. Officer Danesi asked Barnes where he worked, and Barnes
responded that he worked as an oil field inspector. The backpack had a logo that
said “S&B” and “Frac Texas.” Officer Danesi knew that S&B was a petrochemical
company. Officer Danesi testified that Woodard told him that she did not work.
3 Officer Danesi testified that Barnes said that he had just left the hospital,
where he was treated for a leg injury. As a precaution, Officer Danesi called for
emergency medical services (“EMS”) to examine Barnes. EMS arrived a few
minutes later. Barnes also told Officer Danesi that he had just put on the shorts
where the methamphetamine was found.
The court admitted into evidence Officer Danesi’s dashboard camera video
and his body camera video showing the entire encounter with Barnes and
Woodard.
A forensic scientist with the Texas Department of Public Safety Crime
Laboratory testified that she weighed the methamphetamine from the backpack.
She testified that the gross weight of the bags with packaging was 305.58 grams.
She realized the backpack did not contain more than 400 grams of
methamphetamine, which would have resulted in a higher criminal charge. Once
she found more than 200 grams of drugs, there was no reason for her to test other
evidence because it would not bring a higher charge.
An investigator from the Galveston County District Attorney’s office
testified that she used law enforcement databases to investigate Barnes. She
entered his name, date of birth, and social security number. The database then
returned emails and phone numbers associated with those identifiers. The court
admitted into evidence results from her database searches. Over objection, the
4 court admitted into evidence search results from two databases. The database
recovered that Barnes’s name, date of birth, or social security number was linked
to S.B. Management Inc. and S.B. Engineers Construction Limited. The
investigator testified that S.B. Management was one of Barnes’s last employers.
The search also yielded that Barnes had an email address that included the domain
name “sbec.com.” The investigator then testified that S.B. or S.B.E.C. was an
“engineering chemical plant.”
The jury found Barnes guilty and assessed punishment at 18 years’
imprisonment.
Sufficiency of the Evidence
In his first issue, Barnes argues that the evidence was insufficient to prove
that he knowingly possessed the backpack containing methamphetamine. We
disagree.
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, “we
consider all of the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and reasonable inferences therefrom, a rational
juror could have found the essential elements of the crime beyond a reasonable
5 doubt.” Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (internal
quotation and citation omitted).
In conducting our review, we defer to the factfinder to “fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Id. (quoting Jackson, 443 U.S. at 318–19). The
jury, as the sole judge of the facts and credibility of the witnesses, may choose to
believe or disbelieve any witness or portion of their testimony. Metcalf v. State,
597 S.W.3d 847, 855 ((Tex. Crim. App. 2020). We presume that the jury resolved
any conflicts in favor of the verdict and defer to that determination. Merritt v.
State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012).
“The key question is whether the evidence presented actually supports a
conclusion that the defendant committed the crime that was charged.” Morgan v.
State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (internal quotations omitted).
And our role on appeal is “restricted to guarding against the rare occurrence when
a [factfinder] does not act rationally.” Id. (internal quotations omitted). Further, in
our review, “circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). Evidence is sufficient if the inferences necessary to establish guilt are
reasonable based on the cumulative force of all evidence considered in the light
6 most favorable to the verdict. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012).
B. Applicable Law
The State was required to prove Barnes knowingly possessed with intent to
deliver a controlled substance listed in penalty group 1, which includes
methamphetamine. See TEX. HEALTH & SAFETY CODE § 481.112(a), (e), see also
id. § 481.102(6) (identifying methamphetamine as member of penalty group 1). To
support a defendant’s conviction, the evidence must show that the defendant
“knowingly possessed” the contraband, which requires proof that the defendant
(1) exercised “actual care, custody, control, or management” over the substance
and (2) knew the substance was contraband. See id. § 481.002(38) (definition of
possession); Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011);
Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). “Deliver” means to
transfer, actually or constructively, to another a controlled substance, including an
offer to sell a controlled substance. TEX. HEALTH & SAFETY CODE § 481.002(8).
The State need not show exclusive possession of the contraband to support a
conviction. Robinson v. State, 174 S.W.3d 320, 325 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d). Control over contraband may be exercised by more than
one person. Id.
7 C. Analysis
On appeal, Barnes’s challenges the sufficiency of the evidence to prove he
possessed the methamphetamine.2 Barnes argues that the evidence is insufficient
due to “a lack of affirmative link as to the drugs in the knapsack.” App. Br. at 24.
He argues that his passenger, Woodard, drove his truck to pick him up from the
hospital before he was pulled over and that she had sole possession of everything
in his truck, including the backpack with methamphetamine.
Because Barnes was not in exclusive possession of the place where the
controlled substance was found, we cannot conclude that he had knowledge of and
control over the contraband unless the State established an “affirmative link”
between Barnes and the contraband. See Poindexter v. State, 153 S.W.3d 402, 406
(Tex. Crim. App. 2005), overruled in part on other grounds by Robinson v. State,
466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015); Robinson, 174 S.W.3d at
325. An affirmative link “generates a reasonable inference that the accused knew
of the contraband’s existence and exercised control over it.” Olivarez v. State, 171
S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Affirmative
links “are established by the totality of the circumstances.” Beall v. State, 237
S.W.3d 841, 850 (Tex. App.—Fort Worth 2007, no pet.). The elements of
possession may be proven through direct or circumstantial evidence, although the
2 Barnes does not challenge the sufficiency of the evidence to prove intent to deliver the drugs. 8 evidence must establish that the accused’s connection with the substance was more
than fortuitous. Evans, 202 S.W.3d at 161–62; Poindexter, 153 S.W.3d at 405–06.
Mere presence in the same place as the controlled substance is not enough to
justify a finding of possession. Evans, 202 S.W.3d at 162. But presence or
proximity, when combined with other evidence, either direct or circumstantial (e.g.
“affirmative links”), can establish possession. Id.
The Court of Criminal Appeals has adopted a “non-exclusive list of fourteen
factors” that “may indicate a link connecting the defendant to the knowing
possession of contraband.” Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App.
2016). Those factors are: (1) the defendant’s presence when a search is conducted;
(2) whether the contraband was in plain view; (3) the defendant’s proximity to and
the accessibility of the contraband; (4) whether the defendant was under the
influence of narcotics when arrested; (5) whether the defendant possessed other
contraband when arrested; (6) whether the defendant made incriminating
statements when arrested; (7) whether the defendant attempted to flee; (8) whether
the defendant made furtive gestures; (9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia were present; (11) whether
the defendant owned or had the right to possess the place where the drugs were
found; (12) whether the place where the drugs were found was enclosed; (13)
whether the defendant was found with a large amount of cash; and (14) whether
9 the conduct of the defendant indicated a consciousness of guilt. Id. (quoting Evans,
202 S.W.3d at 162 n.12). “It is . . . not the number of links that is dispositive, but
rather the logical force of all of the evidence, direct and circumstantial.” Evans,
202 S.W.3d at 162; see also Robinson, 174 S.W.3d at 326 (“[T]he number of
factors actually supported by the evidence is not as important as the ‘logical force’
they collectively create to prove that a crime has been committed.”). While the
factors are intended to guide the court’s analysis, the ultimate inquiry is whether,
“[b]ased on the combined and cumulative force of the evidence and any reasonable
inferences therefrom,” the jury was “rationally justified in finding guilt beyond a
reasonable doubt.” Tate, S.W.3d at 415 (citing Jackson, 443 U.S. at 318–19).
Barnes contends that Woodard drove his truck to pick him up from the
hospital and alleges that she should be solely responsible for the contents of the
truck including the backpack. The record reflects that Barnes was driving his truck
when the search was conducted, and the State need not prove that Barnes had sole
possession of the contraband. Robinson, 174 S.W.3d at 325 (stating more than one
person may have control of contraband). Although Barnes identifies types of
affirmative links on which the State presented no evidence, as well as evidence that
weighs in his favor, “[i]t is the logical force of the circumstantial evidence, not the
number of links, that supports a jury’s verdict.” See Evans, 202 S.W.3d at 166.
10 Reviewing the record, the direct and circumstantial evidence establishes that
Barnes knowingly possessed the methamphetamine. Barnes was present when the
methamphetamine was recovered from the backpack in his truck. He also owned
and possessed the truck. Even though the methamphetamine was found in the rear
passenger area, Barnes, as driver of the truck, was near the drugs. Before
discovering the backpack, Officer Danesi found a significant amount of
methamphetamine in Barnes’s pocket. Barnes “freaked out” when he realized the
officer had found methamphetamine in his shorts. Barnes claimed that he had just
put the shorts on, implying he did not know the methamphetamine was in the
pocket, and that he had just come from the hospital. The methamphetamine found
in Barnes’s pocket was packaged similarly to the large amount of
methamphetamine found in the backpack.
Officer Danesi recovered other drug paraphernalia from the truck, including
a bottle of fake urine from the driver’s side area and a broken pipe under the
passenger seat. He also found a digital scale with drug residue on it in the
backpack. When patting Barnes down, Officer Danesi found a large amount of
cash in Barnes’s pocket. See Tate, 500 S.W.3d at 414 (identifying as affirmative
links defendant’s presence when search conducted, defendant’s proximity to and
accessibility of contraband, possession of other contraband or narcotics,
incriminating statements and indicia of guilt, defendant’s possession of large
11 amount of cash, whether drugs were found in enclosed space, and whether
defendant owned or had right to possess place where drugs found).
Barnes cites to Harris v. State, in which the San Antonio court of appeals
held that the evidence of affirmative links tying a defendant to a firearm inside a
bag in a car was “nothing more than speculation.” 532 S.W.3d 524, 531 (Tex.
App.—San Antonio 2017, no pet.). The defendant was not the driver or owner of
the vehicle where the firearm was found. Id. The bag was closed and found on the
passenger side near the defendant’s feet. The court reasoned that “nothing in the
bag, on the bag, or in the vehicle” connected the defendant to the firearm. Id. We
agree with the State that the facts in Harris are dissimilar to the facts here. Unlike
in Harris, Barnes was the driver and owner of the truck, and he did not remain
calm when confronted. Barnes had the same drugs in similar packaging in his
pocket and in larger quantity in the backpack. Barnes had a large amount of cash,
and the backpack bore a logo of an oil services company, the same industry Barnes
told the officer he worked in. The officer also found fake urine in the driver’s side
door. To the extent that Barnes argues that the absence of some affirmative links or
evidence, such as DNA evidence, proves his innocence, the “absence of various
affirmative links does not constitute evidence of innocence to be weighed against
the affirmative links present.” James v. State, 264 S.W.3d 215, 219 (Tex. App.—
Houston [1st Dist.] 2008, pet. ref’d). The number of factors present is not as
12 important as the logical force or the degree to which the factors, alone or in
combination, tend to affirmatively link the defendant to the contraband. See Evans,
202 S.W.3d at 162.
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational factfinder could have found beyond a reasonable doubt that Barnes
knowingly or intentionally possessed the methamphetamine. We hold that the
evidence is legally sufficient to support the conviction.
We overrule Barnes’s first issue.
Admissibility of Evidence
In his second and third issues, Barnes contends that the trial court abused its
discretion by admitting two pieces of evidence because they were hearsay and
because they were substantially more prejudicial than probative.
We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion, and we will not reverse if it is within the zone of reasonable
disagreement. McDonnell v. State, 674 S.W.3d 694, 701 (Tex. App.—Houston [1st
Dist.] 2023, no pet.) (citing Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim.
App. 2011)).
13 B. Relevant Facts
Barnes argues that the trial court abused its discretion by admitting State’s
exhibits 6 and 7 because they were unfairly prejudicial and because they were
hearsay. The exhibits showed information found as the result of online searches
conducted by an investigator with the Galveston County Criminal District
Attorney’s office. The investigator testified that she used two databases to
investigate Barnes’s employment history. The investigator testified that she was
qualified to access the databases and that they were reliable. The trial court
admitted the exhibits into evidence over Barnes’s hearsay objection.
Exhibit 6 was obtained from the Texas Department of Public Safety’s
Intelligence and Counterterrorism Division and Exhibit 7 was obtained from
Thomson Reuters’s CLEAR database. Exhibit 6 showed that from 2016 to 2022,
Barnes received wages from “S B Engineers & Construction Ltd,” as well as
several other companies. Exhibit 7 showed email addresses, addresses, phone
numbers, and social media profiles associated with Barnes’s full name and date of
birth. One of the email addresses included the domain name “sbec.com.”
The investigator testified that based on a search using Barnes’s Social
Security number, name, and date of birth, Exhibit 6 showed Barnes’ employment
history. The investigator testified that her investigation showed that S.B.
14 Management was one of Barnes’s last employers. The investigator then testified
that S.B. or S.B.E.C. was an “engineering chemical plant.”
The investigator explained that Exhibit 7 showed email addresses and phone
numbers that have been used by someone with Barnes’s full name and date of
birth. She testified that results in Exhibit 7 showed that Barnes had an email
address with the S.B.E.C.’s domain name or email protocol.
C. Analysis
1. Relevance under Rule 403
Barnes first argues that the exhibits should have been excluded because they
were unfairly prejudicial. See TEX. R. EVID. 403 (excluding relevant evidence if its
probative value is substantially outweighed by danger of unfair prejudice). He
focuses this argument on the fact that the data collected from Barnes’s employment
history came from information from the Texas Department of Public Safety’s
Intelligence and Counterterrorism Division. The Division’s name is listed at the
top of the exhibit. Barnes argues that the evidence caused the jurors to convict him
because they thought he was a spy or terrorist, rather than because they believed
that he possessed and knew about the methamphetamine in the backpack. The State
responds that Barnes did not properly preserve this argument because his objection
in the trial court did not fully inform the trial court that he was objecting under
Rule 403.
15 Assuming without deciding that Barnes preserved his Rule 403 challenge,
the trial court did not abuse its discretion in admitting the evidence under Rule 403.
Generally, all relevant evidence is admissible. See TEX. R. EVID. 402. Evidence
need not by itself prove or disprove a particular fact to be relevant. Ex parte Smith,
309 S.W.3d 53, 61 (Tex. Crim. App. 2010); see also Stewart v. State, 129 S.W.3d
93, 96 (Tex. Crim. App. 2004). Evidence is relevant if it has any tendency to make
the existence of any fact of consequence to the determination of the action more or
less probable than it would be without the evidence. See TEX. R. EVID. 401. Rule
403 authorizes a trial court to exclude relevant evidence if its probative value is
substantially outweighed by the danger unfair prejudice, confusion of the issues,
tendency to mislead the jury, undue delay, or needless presentation of cumulative
evidence. TEX. R. EVID. 403. The trial court is best situated to determine whether
the evidence should be admitted or excluded. Winegarner v. State, 235 S.W.3d
787, 790 (Tex. Crim. App. 2007). The balance between probative value and the
potential for prejudice “is always slanted toward admission, not exclusion, of
otherwise relevant evidence.” De La Paz v. State, 279 S.W.3d 336, 343 (Tex.
Crim. App. 2009). Unless the trial court’s determination is so clearly wrong as to
lie outside the zone within which reasonable persons might disagree, we must
uphold its ruling. Id. at 343–44.
16 The exhibits strengthened the proof that Barnes possessed the
methamphetamine because they linked him to the company’s logo on the
backpack. This proof also rebutted the defense’s theory that the backpack and
methamphetamine belonged to Woodard.
The exhibits have little tendency to suggest a decision on an improper basis
or to confuse or distract the jury. Barnes argues that the jury would give undue
weight to the exhibits because the data from one of them comes from the Texas
Department of Public Safety’s Division for Intelligence and Counterterrorism and
give undue weight to the evidence because the jury believed he was a terrorist. We
agree with the State that the name of the DPS division had little chance of swaying
the jury to believe that Barnes was a terrorist, or that if they so believed, that fact
would unduly influence them to believe that Barnes possessed the backpack of
methamphetamine. The State never mentioned the words “intelligence” or
“terrorism” in closing argument. The only mention of the name of the DPS
division came from the investigator, and she did not emphasize it. Finally, the
investigator’s testimony was brief, and the two exhibits were only a few pages.
This evidence did not take an inordinate time to present.
We cannot say that, in light of weighing all the factors, the admission of this
evidence was unfairly prejudicial to Barnes. The trial court did not abuse its
discretion by admitting State’s Exhibits 6 and 7 over Barnes’s Rule 403 objection.
17 2. Hearsay
Barnes next contends that both exhibits were inadmissible hearsay. The State
responds that the exhibits met the hearsay exception for public records. See TEX. R.
EVID. 803(8) (making exception to hearsay rule for factual findings from legally
authorized investigation when opponent fails to demonstrate that source of
information lacks trustworthiness). Even if the trial court had admitted these
exhibits incorrectly, Barnes cannot prevail on this issue because the record does
not show any harm to Barnes’s substantial rights under Rule of Appellate
Procedure 44.2(b). See TEX. R. APP. P. 44.2(b) (“Any [nonconstitutional] error,
defect, irregularity, or variance that does not affect substantial rights must be
disregarded.”); Kibble v. State, 340 S.W.3d 14, 20 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d).
A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury’s verdict. Kibble, 340 S.W.3d at 20
(citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). An error does
not affect a substantial right if we have “fair assurance that the error did not
influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356,
365 (Tex. Crim. App. 2001). We must examine whether the evidence had
significant potential “to lure the factfinder into declaring guilt on a ground
18 different from proof specific to the offense charged.” Old Chief v. United States,
519 U.S. 172, 180 (1997).
In making this determination, we consider (1) the character of the alleged
error and how it might be considered in connection with other evidence; (2) the
nature of the evidence supporting the verdict; (3) the existence and degree of
additional evidence supporting the verdict; and (4) whether the State emphasized
the error. Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021).
The exhibits played a minor role supporting the conviction. By the time the
investigator testified about the exhibits, the jurors had heard significant evidence
supporting Barnes’s guilt. The evidence reflected that he was the owner and driver
of the truck where the methamphetamine was recovered. He had a significant
amount of methamphetamine in his pocket, and a larger amount in the backpack in
the truck. He “freaked out” when the officer found methamphetamine in his
pocket. The methamphetamine in the backpack was divided into bags, suggesting it
was for sale, and the bags were similar to the bag of methamphetamine in Barnes’s
pocket. There was a scale in the backpack. Police recovered a bottle of fake urine
from the driver’s side door of the truck. The logo on the backpack was for a
company in the industry that Barnes told the responding officer he worked.
The State did not emphasize the exhibits or Barnes’s employment history. In
closing argument, the State mentioned the records once when urging the jury that
19 the defense’s theory that the backpack belonged to Woodard was farfetched.
Arguing the jury should consider reasonable inferences from the evidence, the
State said, “You mean the drugs that were found in a backpack that has [Barnes’s]
last known employer, according to his records on it, in the back of his truck that he
was driving, that he admits is his, when he’s got methamphetamine in his pocket,
when he’s got fake urine right next to him in his front door, we are supposed to
believe that she’s the drug dealer?”
The jury heard ample evidence to demonstrate that Barnes had possession of
considerable methamphetamine intended for sale. Even assuming the two
complained-of exhibits were erroneously admitted, we have fair assurance that the
exhibits did not influence the jury or had but a slight effect. Solomon, 49 S.W.3d at
365. The error did not affect Barnes’s substantial rights. See TEX. R. APP. P.
44.2(b). We overrule Barnes’s issues related to the admission of State’s Exhibits 6
and 7.
20 Conclusion
We affirm the trial court’s judgment.
Susanna Dokupil Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.
Do not publish. TEX. R. APP. P. 47.2(b).