Austin McLure Bounds v. the State of Texas

majority opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00658-CR

Austin McLure Bounds, Appellant

The State of Texas, Appellee

FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY

NO. 24-0655-K368, THE HONORABLE SARAH SOELDNER BRUCHMILLER, JUDGE

PRESIDING

MEMORANDUM OPINION

Austin McClure Bounds was charged with the felony offense of manufacturing or

delivering a controlled substance (methamphetamine) in an amount that was 4 grams or more but

less than 200 grams. See Tex. Health & Safety Code § 481.112(d). The indictment also alleged

that he had previously been convicted of possession of a controlled substance in the same

amount as above. See id. § 481.115(d); Tex. Penal Code § 12.42. The jury found him guilty of

the charged offense, and he pleaded true to the enhancement allegation. Following a punishment

hearing, the jury sentenced him to 30 years’ imprisonment, and the trial court rendered its

judgment of conviction accordingly. See Tex. Penal Code § 12.32. In eight issues on appeal, he

challenges the sufficiency of the evidence supporting his conviction and argues that the trial

court erred by denying his motion to suppress, that the trial court erred by failing to include in

the jury charge instructions for spoliation and corroboration, and that the cumulative effect of two of the jury charge errors and the erroneous denial of his motion to suppress should result in

the reversal of his conviction. We will affirm the trial court’s judgment of conviction.

BACKGROUND

Before the events at issue in this case, William Kaman Sr. was living in a home

on Karolyn Drive in Round Rock, Texas. He had lived there for several years, and his property

had a main house, a large garage with two sleeping areas and air conditioning, and a shed for

storage. One of his sons, William Kaman Jr., lived in one of the garage bedrooms but did not

live in the main house. Kaman Sr. died, and Kaman Jr. moved into the main home. Kaman Sr.

had another son who was named as executor for the estate. Following Kaman Sr.’s death, his

son serving as executor and neighbors called the police multiple times to report that there were

several unauthorized people living in the home and that other individuals were driving to the

home at odd hours and engaging in behavior leading the callers to believe that drugs were being

sold at the home.

After receiving these tips, police officers surveilled the home for several months

and parked unmarked police cars close enough to be able to observe who was driving to the

home but far enough away to avoid being noticed. One of the officers, Sergeant Eric Mount,

decided to stop by the home on his way to work around 8:00 a.m. on the morning of April 5,

2024. While Sergeant Mount was watching the home, a truck drove to the property. Once the

truck parked at the Karolyn home, a man approached the vehicle, opened the front passenger side

door, and got inside. Although Sergeant Mount was too far away to identify the person who got

inside the vehicle, he was close enough to notice the man’s clothing and his stature. Sergeant

Mount saw the passenger quickly get out of the vehicle and walk into the backyard as the truck

drove away from the house.

Sergeant Mount believed that the behavior he just observed was consistent with “a

hand-to-hand drug sale.” He then followed the truck and observed the driver traveling in the

middle lane of a road with three lanes traveling in the same direction. The driver later turned

into a parking lot from the middle lane and crossed over the right-hand lane of the road.

Believing he had seen a traffic violation, Sergeant Mount contacted patrol officers in the area to

report that the driver had committed a traffic offense and to request that the officers make a

traffic stop. A nearby officer in a marked police car initiated a traffic stop, and Sergeant Mount

drove to the police station once he saw the responding officers initiating the traffic stop.

One of the officers performing the stop was Officer Miles Tucker, who was a K-9

handler for the police department and had his police drug dog with him. After the driver of the

truck pulled over, the officer approached the vehicle to speak with the driver, and the driver

identified himself as Jason Farrington. Farrington was argumentative with the officer about the

stop, and his hands were shaking. Farrington told the officer that he had just dropped his

daughter off at a house on Karolyn Drive. The officer asked to see Farrington’s driver’s license

and asked dispatch to run a criminal history on him. Although Farrington admitted to having

received traffic citations in the past, he did not mention that he had previously been arrested and

convicted of offenses involving illegal drugs.

Officer Tucker walked his drug dog around the truck, and the dog alerted near the

passenger door. At that point, Officer Tucker removed Farrington from the vehicle and frisked

Farrington. Officer Tucker and two other officers then searched the vehicle and found a handgun

in the center console and a baggie containing a white substance in a rear cup holder. Subsequent

testing on the white substance revealed that it was 14.31 grams of methamphetamine. Officer

Tucker arrested Farrington and transported him to the police station.

When Farrington arrived at the police station, Sergeant Mount and Detective

Justin LeFan interviewed him. The officers informed Farrington that they were investigating

Kaman Jr., and Sergeant Mount stated that he thought he saw Kaman Jr. get into Farrington’s

truck earlier. Farrington corrected Sergeant Mount to say that Bounds had been the person who

got into the truck with him, not Kaman Jr. Sergeant Mount knew Bounds because he was a

long-term resident of Round Rock. According to Sergeant Mount and Detective LeFan,

Farrington confirmed that he purchased the drugs from Bounds earlier that day. Farrington was

taken to jail after the interview.

Following the interview, Sergeant Mount returned to the Karolyn home and

parked his unmarked car closer to the home than he had been last time. He then placed a mask

over his face to conceal his identity, got out of the car, walked on the sidewalk in front of the

home, and saw a man wearing the same clothes he had seen earlier on the man who got inside the

truck. When he got closer, Sergeant Mount recognized the man as Bounds.

While Sergeant Mount returned to the Karolyn home, Detective LeFan prepared a

search-warrant affidavit and later obtained a search warrant to search the house. A SWAT team

executed the warrant later that day, and the officers found inside the home Bounds, another man,

and a woman. Kaman Jr. was not in the home. One of the SWAT officers frisked Bounds and

placed him in the backseat of Officer Taylor Roberson’s patrol car. While observing Bounds,

Officer Roberson noticed Bound’s cellphone and took custody of the phone before later giving

the phone to Sergeant Mount.

Several officers searched the home and the other structures on the property. The

officers found inside Kaman Jr.’s bedroom baggies that could have been used for the distribution

of drugs, a scale, and 11.03 grams of methamphetamine. When searching the shed, another drug

dog alerted to pants found in the shed. While looking through the pants, the officers found a bag

of pills that appeared to be Xanax. In that same area, the police found mail, paperwork, and

prescription bottles with Bounds’s name on them. Additionally, the police found a scale with

residue on it. Bounds was initially arrested for possessing Xanax, but he was later charged with

manufacturing or distributing methamphetamine. The police did not find any money on Bounds

when he was arrested.

After Bounds was arrested, police searched his phone. The settings folder

confirmed that the phone number for the phone was the same one that was associated with

Bounds. Further, the police found Farrington as a contact in the phone, and the phone number

given for the contact matched the phone number Farrington had previously given to the police.

The text thread between Bounds’s and Farrington’s phones showed that they began

communicating with one another in September 2023 with Bounds identifying himself in the first

message. In another text message exchange, Farrington asked where to meet Bounds, and

Bounds specified the Karolyn home and told Farrington to park on the rear driveway near the

garage. On April 4, 2024, Bounds wrote the following messages to Farrington:

Hey good News better product available, some of the best in along time, and I got

a little break on it so I can do 150 for a half

Really good halftime show. Definitely a great game so far

120 if you only wanna stay for first quarter

A few hours later, Farrington responded, “Ok” and “I’m down.” Bounds

responded, “Cool” and “When”? Farrington answered, “I’ll be there tomorrow morning for real

at 9 o’clock if you were going to be up.” Bounds informed Farrington that he would “be up” at

that time. At 7:48 a.m. on April 5, Bounds texted Farrington, “Let me know when your ready.”

Farrington responded, “I’m headed to your location.” Bounds said, “Ok sounds good.” At 8:24

a.m., Farrington texted Bounds, “2 min” and “Here.”

After Bounds was charged with manufacturing or distributing methamphetamine,

a trial was held in which the following witnesses testified about the events summarized above:

officers involved in the traffic stop of Farrington, officers involved in the investigation of the

Karolyn home, and Farrington. The witnesses provided additional testimony set out below. The

trial court also admitted into evidence photos of the Karolyn home and items found throughout

the property, copies of the text messages between Farrington and Bounds, photos of the truck

and items found inside, the lab reports for the testing performed on the methamphetamine found

inside the truck and inside Kaman Jr.’s bedroom, and a timeline prepared by defense counsel.

In his testimony, Farrington explained that he was currently on community

supervision after pleading guilty to the offense of possessing a controlled substance. He also

stated that no promise was made regarding his testimony in this case when he pleaded guilty. He

provided his primary phone number and agreed it matched the contact information on Bounds’s

phone. He agreed that he saw Bounds on April 5 and believed it was at the home on Karolyn

Drive, which he had been to before to buy a coat from Bounds, but he explained that Bounds did

not live there. Further, he testified that he had purchased methamphetamine from Bounds

before, that he went to the Karolyn home on April 5 to buy methamphetamine after Bounds

offered to sell it, that he went there alone, and that Bounds got into the truck when he arrived.

Although Farrington admitted that he was talking with Bounds on April 5, he said he would have

bought methamphetamine from whomever he could. He remembered that he was wanting to buy

large amounts of methamphetamine at the time and wanted to buy at least 14 grams or a half

ounce. He described Bounds as a middleman who was supposed to connect him with the person

who lived at the home. Farrington testified that he had been using drugs and had not slept for

days at the time he went to meet Bounds and did not remember everything that happened that

day. He recalled wanting to buy a larger amount than Bounds had, so Farrington left the

house upset.

When discussing his interview, Farrington stated that the police officers said that

if he provided enough information, they would let him leave, but he agreed that he was not

allowed to leave and was instead arrested. He recalled trying to tell the police what they wanted

to hear so he could leave. After learning the amount of methamphetamine found in the truck, he

was shocked because he felt like it should have been a larger amount since he had bought drugs

from multiple people. For that reason, Farrington testified that he did not know if he bought any

drugs from Bounds that day. In addition, Farrington testified that Bounds never had the amount

of methamphetamine found in the truck. Further, Farrington explained that following his arrest

he wrote an email to Bounds and to Bounds’s attorney explaining that he did not buy drugs from

Bounds on April 5; however, he also agreed that he wrote the emails after Bounds asked him to.

Sergeant Mount testified that the police did not make any promises to Farrington

if he agreed to talk to them; on the contrary, Sergeant Mount explained that Farrington wanted to

talk. Although Sergeant Mount stated that he told Farrington he would put a note in the file

indicating that Farrington was being cooperative, Sergeant Mount also testified that Farrington

could not have been a confidential informant because of his criminal history, that he told

Farrington he could not make any deal with him, and that he never told Farrington that

Farrington would not go to jail that day. Further, he explained that Farrington was not an

informant because there was no arrangement set up ahead of time and because Farrington did not

bring the drugs to the police.

When discussing Farrington’s interview, Sergeant Mount agreed that interviews

should be recorded, but he also agreed there was no recording of the interview despite there

being cameras in the interview room. He explained that neither of the interviewing officers

asked for the recording to be preserved. Although he acknowledged that the interview had not

been recorded, Sergeant Mount testified that the two officers who conducted the interview could

testify about the interview.

Concerning his observations of the Karolyn home, Sergeant Mount testified that

the man’s getting into the truck briefly before getting out and the driver’s leaving the area

afterward were consistent with a “hand-to-hand drug sale.” Further, he related that a half ounce

is approximately fourteen grams.

Detective LeFan testified that at the start of the interview, Farrington was

Mirandized and told the officers that he understood his rights. Further, Detective LeFan

explained that neither officer told Farrington he would be let go if he gave them information;

rather, Detective LeFan remembered that Farrington was told that his cooperation would be

noted in the file. Detective LeFan agreed that it was his and Sergeant Mount’s responsibility to

download the interview and preserve it if it was going to be used as evidence. When told that

Farrington had testified that the police had pressured him to talk, he agreed that the absence of a

recording meant there was no way to corroborate what happened at the interview; however, he

testified that he could describe what happened. He was surprised by the summary provided of

Farrington’s testimony concerning the interview and by Farrington’s claim at trial that he did not

buy any drugs from Bounds.

After considering the evidence presented at trial, the jury found Bounds guilty of

the charged offense. At the start of the punishment hearing, Bounds pleaded true to the

enhancement paragraph alleging that he had previously been convicted of possessing a controlled

substance. The State called Sergeant Mount to testify about more text messages between Bounds

and Farrington in which they discussed Farrington’s buying drugs from Bounds and also

mentioned buying them at the Karolyn home. Next, the State called another police officer who

testified regarding an incident in which Bounds was found to be in possession of more than 30

grams of methamphetamine following a traffic stop. The trial court also admitted into evidence

numerous judgments from previous convictions for Bounds, including convictions for assault,

reckless driving, interference with a public servant’s duties, evading arrest, criminal mischief,

unlawful use of a criminal instrument, and theft.

When the State rested, Bounds chose to testify and explained that he began

struggling with his mental health after his mother died when he was twenty-one, that he had

nowhere to live, and that he turned to drugs to help cope. Further, he admitted that he had stolen

things to pay for drugs. He related that he had previously been shot in the stomach, had

sustained head injuries in the past that he had not fully recovered from, and had been diagnosed

with multiple mental-health disorders. In addition, he testified that Kaman Sr. gave him a place

to stay, that Kaman Jr. used and sold drugs, and that he felt like he had to help when Kaman Jr.

asked for assistance with selling drugs. Bounds admitted that he had been placed on community

supervision in the past and had his community supervision revoked.

Once he finished testifying, Bounds called a forensic psychiatrist who testified

that Bounds had previously been diagnosed with several mental illnesses and been declared

incompetent and hospitalized. The forensic psychiatrist also testified that mental-health issues

can lead to substance abuse and that substance abuse can cause mental-health episodes. Next,

Bounds called his sponsor who testified that Bounds was trying to change his life and had

already made significant changes. Finally, Bounds called his sister who testified that their father

had never been a part of their lives, that their mother died unexpectedly, that she had to go live

with relatives after her mother died because she was a minor, and that Bounds was left alone. In

addition, she discussed Bounds’s life-long mental-health battle.

After considering the evidence from the punishment hearing, the jury sentenced

Bounds to 30 years’ imprisonment, and the trial court rendered its judgment of conviction

consistent with the jury’s verdict.

Bounds appeals his conviction.

DISCUSSION

Sufficiency of the Evidence

In his first three issues, Bounds challenges the sufficiency of the evidence

supporting his conviction. When reviewing the sufficiency of the evidence, we view all the

evidence in the light most favorable to the judgment to determine whether any rational trier of

fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979); Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App.

2020). In making this determination, “[w]e view the evidence in the light most favorable to the

verdict and consider all of the admitted evidence, regardless of whether it was properly

admitted.” Stahmann, 602 S.W.3d at 577. “The jury is the sole judge of credibility and weight

to be attached to the testimony of the witnesses.” Id. “Juries can draw reasonable inferences

from the evidence so long as each inference is supported by the evidence produced at trial,” id.,

and are “free to apply common sense, knowledge, and experience gained in the ordinary affairs

of life in drawing reasonable inferences from the evidence,” Eustis v. State, 191 S.W.3d 879, 884

(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). “When the record supports conflicting

inferences, we presume that the jury resolved the 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).

Appellate courts must “determine whether the necessary inferences are reasonable

based upon the combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).

Appellate courts also must bear in mind that “direct and circumstantial evidence are treated

equally” and that “[c]ircumstantial evidence is as probative as direct evidence in establishing the

guilt of an actor” and “can be sufficient” on its own “to establish guilt.” Kiffe v. State,

361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The evidence is legally

insufficient if “the record contains no evidence, or merely a ‘modicum’ of evidence, probative of

an element of the offense” or if “the evidence conclusively establishes a reasonable doubt.” Id.

at 107 (quoting Jackson, 443 U.S. at 320). Furthermore, reviewing courts “measure the

sufficiency of the evidence by the so-called hypothetically correct jury charge, one which

accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the

State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant is tried.” See DeLay v. State,

465 S.W.3d 232, 244 n.48 (Tex. Crim. App. 2014).

Under the Health and Safety Code, an individual commits the offense of

manufacturing or delivering a controlled substance if he “knowingly manufactures, delivers, or

possesses with intent to deliver a controlled substance listed in Penalty Group 1,” which includes

methamphetamine. See Tex. Health & Safety Code §§ 481.102(6), .112(a). “‘Deliver’ means to

transfer, actually or constructively, to another a controlled substance, counterfeit substance, or

drug paraphernalia, regardless of whether there is an agency relationship. The term includes

offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.” Id.

§ 481.002(8). “‘Agent’ means an authorized person who acts on behalf of or at the direction of a

manufacturer, distributor, or dispenser.” Id. § 481.002(2). “[A]n actual transfer or delivery, as

commonly understood, contemplates the manual transfer of property from the transferor to the

transferee or to the transferee’s agents or to someone identified in law with the transferee.”

Heberling v. State, 834 S.W.2d 350, 354 (Tex. Crim. App. 1992) (emphasis removed).

The indictment in this case alleged that Bounds committed the offense by offering

to sell, actually transferring, or constructively transferring methamphetamine. “When a jury

returns a general guilty verdict on an indictment charging alternate methods of committing the

same offense, the verdict stands ‘if the evidence is sufficient to support a finding under any of

the theories submitted.’” Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012)

(quoting Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)); see also Delacey

v. State, No. 14-16-00575-CR, 2017 WL 6559669, at *4 (Tex. App.—Houston [14th Dist.]

Dec. 21, 2017, no pet.) (mem. op., not designated for publication) (noting that it is unnecessary

to address sufficiency of evidence for second manner of committing offense if there is sufficient

evidence to support commission by first manner).

Sufficiency of Evidence of Offense

In his first issue, Bounds argues that there is insufficient evidence to support a

conclusion that he offered to sell, actually transferred, or constructively transferred a controlled

substance and that the evidence was insufficient to establish that the controlled substance was

methamphetamine. Concerning an actual transfer, Bounds notes that Sergeant Mount did not

testify about seeing any hand-to-hand transaction, see the person getting into the truck holding

drugs, or see the person with money after getting out of the vehicle. Bounds also highlights that

the police did not find any money on him when he was arrested and that there was no evidence

indicating that he had any drugs or paraphernalia on him or that he was intoxicated. 1 Further, he

notes that Farrington testified that he did not remember buying drugs from Bounds on April 5

and would have had more drugs if he made a purchase. Additionally, Bounds emphasizes

Farrington’s testimony that he went to the Karolyn home previously to purchase a coat and that

he emailed Bounds and Bounds’s attorneys to tell them that he did not buy anything from

Bounds on April 5. Moreover, Bounds references how Farrington testified that Bounds was

supposed to connect Farrington with the person who lived at the Karolyn home and that he did

not have a strong recollection of April 5 because he had been using drugs in the days leading up

to his driving to the Karolyn home.

Although Bounds points to the above when arguing that the evidence was

insufficient, the jury was tasked with deciding what weight to give to that evidence. See

1 In his briefing, Bounds argues that the evidence was insufficient, in part, because he was outside the home when law enforcement arrived. Although Sergeant Mount testified that he saw Bounds outside the home after interviewing Farrington, he also explained that Bounds was inside the home when the search warrant was later executed. See Evans v. State, 202 S.W.3d 158, 162, 164 (Tex. Crim. App. 2006) (noting that defendant’s presence when search is conducted is factor to consider when determining if sufficient links between defendant and contraband in home exist).

Stahmann, 602 S.W.3d at 577. Additionally, there was other evidence presented that the jury

could have considered when deciding what weight to give to the evidence Bounds relies on and

determining whether he was guilty. For example, Farrington testified that he had purchased

methamphetamine from Bounds before and went to see Bounds on April 5 to purchase more

methamphetamine from him. In addition, Farrington remembered that Bounds got into the truck

on April 5, which occurred shortly before the police performed a traffic stop and found the

methamphetamine inside the truck. Concerning the emails Farrington wrote to Bounds and

Bounds’s attorney, Farrington admitted that he wrote the emails because Bounds asked him to

and testified that he had known Bounds for years. Cf. Durant v. State, 688 S.W.2d 265, 267

(Tex. App.—Fort Worth 1985, pet. ref’d) (noting that jury is free to consider witness’s

relationship to defendant when evaluating witness’s credibility).

Additionally, the police seized Bounds’s phone from his person, and Bounds

confirmed to the police that the phone belonged to him. Farrington admitted that the contact

information for him in Bounds’s phone, including his phone number, was accurate. Text

messages exchanged between Bounds’s and Farrington’s phones showed that Bounds told

Farrington to drive to the Karolyn home months before the day in question, that Bounds told

Farrington on April 4 that he had just received some “better product,” that he would sell

Farrington “a half” for $150 or a “quarter” for $120, that Bounds agreed and said he would come

by tomorrow morning (April 5) around 9:00 a.m., and that Farrington texted the next morning to

say that he was headed to Bound’s location and arrived at 8:24 a.m. See Cook v. State,

460 S.W.3d 703, 709 (Tex. App.—Eastland 2015, no pet.) (relying in sufficiency review on text

messages between defendant and another person making arrangements to purchase

“eight-balls”).

Around that time, Sergeant Mount observed the truck that Farrington was driving

pull up to the Karolyn home and saw a man briefly get inside the truck before the truck drove

away. See Wyatt v. State, 951 S.W.2d 144, 148-49 (Tex. App.—Houston [14th Dist.] 1997, pet.

ref’d) (overruling sufficiency challenge to conviction for delivery of controlled substance in part

because record showed that officer observed defendant’s activity). Sergeant Mount testified that

this behavior was consistent with a drug sale and that when he returned to the property later and

was able to get closer, he recognized Bounds as the man who got into the truck. See Bennett

v. State, No. 14-02-00647-CR, 2003 WL 21782524, at *3 (Tex. App.—Houston [14th Dist.]

July 31, 2003, no pet.) (mem. op., not designated for publication) (emphasizing in sufficiency

review that officer testified that his observations of defendant were consistent with “a hand-tohand drug transaction”).

Sergeant Mount also testified that a half ounce is approximately fourteen grams,

and Farrington testified at trial that he wanted to purchase fourteen grams or a half ounce of

methamphetamine on April 5. When the police initiated a traffic stop of Farrington shortly after

he left the Karolyn home, the police found about fourteen grams of methamphetamine in

his truck.

Although the police did not find money on Bounds when they arrested him, “it is

not necessary that appellant be found with large amounts of cash.” Moreno v. State, 195 S.W.3d

321, 326 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Moreover, Detective LeFan

testified that individuals can now pay for drugs through cash apps on their phones.

Furthermore, the police found mail, clothing, and prescription medications

belonging to Bounds in the shed on the property, and in that same area the police found scales

with residue on them and what appeared to be Xanax. See Tex. Health & Safety Code

§§ 481.002(17) (including scales within definition of paraphernalia), .183 (explaining that

determination regarding whether something is paraphernalia may consider presence of

controlled-substance residue); Jordan v. State, 139 S.W.3d 723, 726-27 (Tex. App.—Fort Worth

2004, no pet.) (determining that evidence was sufficient and noting that defendant had more than

one controlled substance); Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st

Dist.] 1994, pet. ref’d) (explaining that presence of drug paraphernalia bears upon mental state).

Given our standard of review, the evidence summarized above, and the reasonable

inferences that can be drawn from the evidence, we conclude that the evidence was sufficient to

support a determination that Bounds committed the offense of delivering methamphetamine by

actually transferring the controlled substance. See Tex. Health & Safety Code §§ 481.102(6),

(8), .112(a); see also Cook, 460 S.W.3d at 707-08, 709-10 (overruling sufficiency issue where

text messages detailed plan to purchase drugs from defendant, defendant drove to scheduled

location, police observed individual get into defendant’s car, and police later recovered drugs

from that individual). Because we have determined that the evidence was sufficient to establish

delivery through actual transfer, we need not address whether the evidence was sufficient to

establish that Bounds constructively transferred or offered to sell the controlled substance. See

Tex. R. App. P. 47.1; Sanchez, 376 S.W.3d at 775. 2

2 In this issue, Bounds points to closing arguments made by his attorney at trial in which his attorney asserted that if there was evidence he was trying to sell a controlled substance, the controlled substance was Xanax, not methamphetamine. Based on this argument, he contends that the evidence was insufficient to establish that the controlled substance was methamphetamine. However, “the arguments of the parties are of no consequence” in sufficiency review “because arguments are not evidence.” See Cary v. State, 507 S.W.3d 761, 766 (Tex. Crim. App. 2016). Accordingly, any reliance on argument in a sufficiency review would be error. Id. In any event, for the reasons previously given, we conclude that the evidence was sufficient to support a determination that Bounds delivered methamphetamine to Farrington.

For these reasons, we overrule Bounds’s first issue on appeal.

Sufficiency of Evidence Corroborating Offer to Sell

In his second issue, Bounds contends that the evidence presented at trial was

insufficient to support his conviction because it failed to corroborate any offer to sell as required

by section 481.182 of the Health and Safety Code. See Tex. Health & Safety Code § 481.182.

That provision reads as follows:

For the purpose of establishing a delivery under this chapter, proof of an offer to

sell must be corroborated by:

(1) a person other than the person to whom the offer is made; or

(2) evidence other than a statement of the person to whom the offer

is made.

Id. After referring to this statute, Bounds asserts that without Farrington’s testimony and

statements to the police, the evidence is insufficient to corroborate an offer to sell by him.

This provision applies to delivery of a controlled substance through an offer to

sell. See id. §§ 481.002(8), .112. Because we have determined that the evidence was sufficient

to support Bounds’s conviction under the alternative manner of actual transfer, we need not

address whether the evidence supporting proof of an offer to sell was sufficiently corroborated.

See Tex. R. App. P. 47.1; Sanchez, 376 S.W.3d at 775.

Accordingly, we overrule Bounds’s second issue on appeal.

Sufficiency of Evidence Corroborating Informant

In his third issue, Bounds argues that the evidence was insufficient to support his

conviction because Farrington was an informant and because the State failed to present evidence

that would have corroborated Farrington’s testimony. As support, Bounds points to article

38.141 of the Code of Criminal Procedure, which provides, in relevant part, as follows:

(a) A defendant may not be convicted of an offense under Chapter 481, Health

and Safety Code, on the testimony of a person who is not a licensed peace officer

or a special investigator but who is acting covertly on behalf of a law enforcement

agency or under the color of law enforcement unless the testimony is corroborated

by other evidence tending to connect the defendant with the offense committed.

(b) Corroboration is not sufficient for the purposes of this article if the

corroboration only shows the commission of the offense.

Tex. Code Crim. Proc. art. 38.141; see id. arts. 2A.001 (listing who qualifies as peace officers),

.002 (listing individuals who are special investigators). After referencing the statute, Bounds

argues that Farrington’s testimony formed the basis for his conviction, that his testimony was not

sufficiently corroborated, and that, therefore, the evidence was insufficient to support

his conviction.

“In some cases, . . . a sufficiency-of-the-evidence issue turns on the meaning of

the statute under which the defendant has been prosecuted,” and “[t]hat question, like all

statutory construction questions, is a question of law, which we review de novo.” Liverman

v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015). “The overarching rule of statutory

construction is that we construe a statute in accordance with the plain meaning of its text unless

the text is ambiguous or the plain meaning leads to absurd results that the legislature could not

possibly have intended.” Ex parte Vela, 460 S.W.3d 610, 612 (Tex. Crim. App. 2015). “In

ascertaining the plain meaning of a word, we read words and phrases in context and construe

them according to the rules of grammar and usage.” Lopez v. State, 253 S.W.3d 680, 685 (Tex.

Crim. App. 2008); see Tex. Gov’t Code § 311.011 (addressing common and technical usage of

words in construing statutes). Appellate courts also interpret statutes “together and harmonized,

if possible,” to give effect to all of the statutory provisions. See Ex parte Gill, 413 S.W.3d 425,

430 (Tex. Crim. App. 2013). Appellate courts “presume that every word has been used for a

purpose and that each word, phrase, clause, and sentence should be given effect if reasonably

possible.” O’Brien v. State, 544 S.W.3d 376, 384 (Tex. Crim. App. 2018). “If the plain

language is clear and unambiguous,” the “analysis ends because ‘the Legislature must be

understood to mean what it has expressed, and it is not for the courts to add or subtract from such

a statute.’” Id. (quoting Tha Dang Nguyen v. State, 359 S.W.3d 636, 642 (Tex. Crim.

App. 2012)).

Article 38.141 was enacted because informants, like accomplices, “could fall into

the class of a discredited witness with selfish interests and possibly corrupt motives.” Cantelon

v. State, 85 S.W.3d 457, 460 (Tex. App.—Austin 2002, no pet.). For article 38.141 to apply, the

testifying witness may not be a licensed peace officer or a special investigator but must be acting

covertly on behalf of or under color of law enforcement. Tex. Code Crim. Proc. art. 38.141. The

“acting covertly on behalf of” requirement indicates that the informant must have been acting in

secret for the benefit of law enforcement at the time the alleged offense occurred for which he

will be providing information. See Ex parte Vela, 460 S.W.3d at 612; see also Covert,

Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/covert (last visited

September 9, 2026) (including synonyms for covert as secret or hidden).

Consistent with that construction, appellate courts have determined that the statute

applies to situations in which a witness enters into an agreement with law enforcement to

perform a future act, such as a controlled purchase of a controlled substance, and is monitored by

the police during the transaction. See Taylor v. State, 328 S.W.3d 574, 575 (Tex. App.—

Eastland 2010, pet. ref’d) (describing scenario where informant agreed to buy drugs in exchange

for agreement not to be prosecuted, was fitted with recording device, and was given money to

buy drugs); King v. State, 334 S.W.3d 818, 820 (Tex. App.—Beaumont 2011, pet. ref’d)

(discussing similar situation with district attorney’s office); Simmons v. State, 205 S.W.3d 65,

68, 73 (Tex. App.—Fort Worth 2006, no pet.) (determining that article 38.141 applied when

individual was arrested, agreed to contact defendant, and agreed to “‘complete six case credits’

in order to get his case dismissed” because he was “indisputably acting covertly on behalf of

law enforcement”).

Here, in contrast, Farrington was arrested after the police discovered

methamphetamine in his truck. Farrington was not working covertly on behalf of law

enforcement at the time of the drug deal. See Tex. Code Crim. Proc. art. 38.141. During a

subsequent interview with the police, Farrington told the police officers that he went to the

Karolyn home to buy methamphetamine from Bounds. Although Farrington testified that the

police officers told him they would help him out if he provided enough information, he was not

asked to engage in any covert action. Moreover, both Sergeant Mount and Detective LeFan

testified that they did not tell Farrington that he would be let go if he gave them specific

information and instead testified that they told him that his cooperation would simply be noted in

the file. Farrington confirmed in his testimony that he was not released after the interview and

was arrested, and he admitted that he had no agreement with the State that gave him community

supervision in exchange for his testimony.

In light of the above, we conclude that article 38.141 did not apply to this case

because Farrington was not acting covertly for law enforcement. Because article 38.141 did not

apply, we need not address whether Farrington’s testimony was sufficiently corroborated under

that statute. See Perez v. State, No. 04-19-00189-CR, 2020 WL 4808709, at *2 n.1 (Tex. App.—

San Antonio Aug. 19, 2020, pet. ref’d) (mem. op., not designated for publication) (omitting

analysis under article 38.141 in sufficiency discussion because “witnesses were not

covert actors”). 3

For these reasons, we conclude that the evidence was sufficient to support the trial

court’s judgment of conviction and overrule Bounds’s third issue on appeal.

Motion to Suppress

Before trial, Bounds filed a motion to suppress evidence obtained during the

search of the Karolyn home. The basis for the suppression motion started during the traffic stop,

3 On appeal, Bounds seems to suggest that the evidence was also insufficient because Farrington was an accomplice and because his testimony was not sufficiently corroborated under article 38.14 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art 38.14 (“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”). However, Bounds presented this argument for the first time in his reply brief. See Tex. R. App. P. 38.3 (restricting appellant’s reply brief to “addressing any matter in the appellee’s brief.”); Chambers v. State, 580 S.W.3d 149, 161 (Tex. Crim. App. 2019) (explaining that “new issues raised in a reply brief should not be considered”). In any event, an individual purchasing drugs from a seller is not an accomplice to the seller because the acts of purchasing and selling are separate ones. See Rodriguez v. State, 104 S.W.3d 87, 92 (Tex. Crim. App. 2003) (determining that defendant charged with delivering controlled substance was not entitled to accomplice witness instruction under article 38.14 for testimony from buyer because buyer was not aiding “‘delivering act’” and because offense of distributing and receiving controlled substance were “hermetically separated” acts).

and Officer Tucker’s body camera captured the traffic stop and subsequent search of

Farrington’s truck.

During the traffic stop, Farrington asked why he was being pulled over, and

Officer Tucker explained that Farrington crossed a lane of traffic without signaling. When asked

where he was coming from, Farrington related that he “just got done dropping off my daughter

and am heading home.” After being asked if he had ever been given a ticket before or been in

trouble with the police, Farrington explained that he had received tickets “for normal stuff” like

speeding but denied any other incidents.

Officer Tucker walked to his patrol car to run Farrington’s criminal history.

When the officer returned, Farrington was angry and was yelling at another officer, arguing that

the police were trying to intimidate him. Officer Tucker questioned Farrington about his earlier

claim about not ever being in trouble with the law, and Farrington admitted that he had gotten in

trouble years ago. Farrington angrily expressed that it was none of the officer’s business whether

he had been in trouble before, that he valued his privacy, and that his prior cases had been

deferred or dismissed. Officer Tucker again asked Farrington where he had been earlier that

morning, and he repeated the claim that he dropped off his daughter at a friend’s house on

“Karolyn” and was going home. Officer Tucker then walked away to confer with his officers.

When he returned, Officer Tucker asked Farrington to get out of the truck.

Although Farrington angrily objected, he got out of the truck but refused to let the officers frisk

him, requiring that they place him in handcuffs to perform the frisk. At that point, Officer

Tucker retrieved his dog from his patrol car and walked around the truck. The dog alerted to the

presence of drugs inside the truck, and a subsequent search resulted in the officers’ seizing a

handgun and a baggie with a crystalline substance in it that tested positive for methamphetamine.

Farrington was then placed under arrest for possession of methamphetamine and unlawful

possession of a firearm and driven to the police station to be interviewed by Detective LeFan and

Sergeant Mount.

Following the interview with Farrington in which he told the officers that Bounds

sold him the methamphetamine, Detective LeFan prepared an affidavit seeking a warrant to

search the Karolyn home and the accompanying property for methamphetamine and other drugs,

paraphernalia, and electronic devices that might contain photographs and electronic

communications documenting the delivery or sale of methamphetamine. The affidavit named

Kaman Jr. and Bounds as persons in control of the property. The affidavit then provided details

about, among other things, the months-long investigation of the Karolyn home, Sergeant

Mount’s observing Farrington at the home engaged in what appeared to be a drug deal, the

subsequent traffic stop and search of Farrington’s truck, the interview of Farrington in which he

admitted to having purchased methamphetamine from Bounds at the Karolyn home earlier that

day and on other occasions, and Sergeant Mount’s recognizing Bounds when he drove back to

the Karolyn property after the interview.

After Detective LeFan filed the affidavit, a trial court determined that there was

probable cause to issue a search warrant and issued a warrant authorizing the police to search the

home and property. As part of the search, the police found methamphetamine and paraphernalia

inside the home and found in the shed Xanax, mail with Bounds’s name on it, clothing belonging

to Bounds, and a prescription with his name on it. The police also detained Bounds before

ultimately arresting him for possession of a controlled substance and searching his phone.

In his motion to suppress and accompanying brief, Bounds asserted that evidence

obtained from the search of the property and of him should be suppressed because the

search-warrant affidavit contained material misrepresentations and omissions. He alleged that

during the traffic stop of Farrington, Farrington “made multiple false statements, in which

officers were able to verify the falsity at the time the statements were made.” Specifically,

Bounds argued that Farrington lied about having no criminal history and about dropping off his

daughter at the Karolyn home and that the police verified that those statements were not true.

However, Bounds notes that Detective LeFan did not include those statements in his

search-warrant affidavit.

The trial court held a hearing on the motion to suppress. At the hearing, the trial

court admitted into evidence the recording from Officer Tucker’s body camera, the

search-warrant affidavit prepared by Detective LeFan, and the search warrant. The State called

as a witness Detective LeFan, who testified that he was not aware of either lie made by

Farrington to the officers during the traffic stop before he filled out the search-warrant affidavit

and that he did not intentionally or recklessly leave out any information regarding Farrington’s

statements to Officer Tucker. Further, Detective LeFan clarified that if he had been aware of

them, he would have included them in his affidavit because they would have helped explain why

there was reasonable suspicion to extend the traffic stop for a search and why there was probable

cause to arrest Farrington. Additionally, Detective LeFan set out the various ways in which

many of Farrington’s statements to the police were corroborated by information the police

already knew and by evidence discovered in the truck and were credible because they constituted

statements against his own penal interest.

After considering the evidence and the parties’ arguments, the trial court denied

the motion to suppress.

In his fourth issue, Bounds contends that the trial court erred by denying his

motion to suppress. When presenting this issue, Bounds emphasizes that Detective LeFan did

not include in his search-warrant affidavit that Farrington told officers when he was first pulled

over that he had been to Karolyn Drive to drop off his daughter and that he denied having any

criminal history. Bounds asserts that the officers performing the stop confirmed that the

statements were false but that Detective “LeFan omitted the false statements and verification of

false statements from the search warrant” application despite having knowledge of the lies.

Bounds argues that the failure to include these statements constituted material misrepresentations

or reckless omissions of material facts that were necessary to properly determine if probable

cause existed. Further, he contends that had this information been properly included, the

affidavit would not have established probable cause.

As support, Bounds highlights that the police had identified no connection

between Bounds and the Karolyn home before Farrington was interviewed by the police and did

not verify that Bounds actually lived at the Karolyn home before getting the search warrant.

Bounds suggests that Sergeant Mount’s identification of Bounds outside the Karolyn home

would not be sufficient to corroborate that Bounds lived there or was a person in control of the

premises if the omitted information had been included. For these reasons, Bounds contends that

Detective LeFan’s omission of the false statements should have resulted in the suppression of

evidence obtained from the search under the Fourth Amendment and argues that the text

messages should have been suppressed as “fruit of the poisonous tree” because Bounds’s phone

was searched as a result of the warrant. 4

4 In his analysis for this issue, Bounds again characterizes Farrington as an informant and then refers to cases in which courts have determined that search-warrant applications based on

Appellate courts review a trial court’s ruling on a motion to suppress for an abuse

of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). Under that

standard, appellate courts review the record “in the light most favorable to the trial court’s

determination” and will reverse the judgment “only if it is arbitrary, unreasonable, or ‘outside the

zone of reasonable disagreement.’” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014)

(quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). “Thus, the party that

prevailed in the trial court is afforded the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn from that evidence.” State v. Garcia-Cantu, 253

S.W.3d 236, 241 (Tex. Crim. App. 2008).

statements from confidential informants either were or were not sufficient to establish probable cause. However, as discussed previously, Farrington was not a confidential information. Moreover, those cases did not involve alleged material omissions as is argued in this case. See Aguilar v. Texas, 378 U.S. 108, 109, 115 (1964) (concluding that affidavit stating that officers “received reliable information from a credible person” that drugs were present at location to be searched, without more, did not establish probable cause), abrogated on other grounds by Illinois v. Gates, 462 U.S. 213, 230 n.6 (1983); State v. Duarte, 389 S.W.3d 349, 351-52, 355, 360 (Tex. Crim. App. 2012) (determining that trial court did not err by granting motion to suppress where affidavit was “based almost entirely on hearsay information supplied by a first-time confidential informant” who reached out to police officers to provide tip concerning criminal activity to receive deal on his preexisting criminal charges); Whitfield v. State, No. 07-19-00305-CR, 2020 WL 2610348, at *1, *3-4 (Tex. App.—Amarillo May 21, 2020, no pet.) (mem. op., not designated for publication) (deciding that affidavit was sufficient where it related that confidential informant had provided tip that drugs would be found at home to be searched and had seen drugs there recently, informant had provided information “on more than fifty occasions that has proven to be true and correct,” police confirmed that home and vehicle defendant used belonged to his mother, and defendant had multiple prior arrests for drug offenses). Regardless, the statements Farrington made were also statements against his own penal interest and were corroborated by information the police already knew or learned before the affidavit was prepared, including Sergeant Mount’s personally observing Bounds at the Karolyn home. See Duarte, 389 S.W.3d at 356-57 (explaining that courts have determined that informant’s tip may help to establish probable cause when it is corroborated, it is accompanied by statement against penal interest, or other circumstances warrant finding tip credible).

In a suppression hearing, the trial judge is the sole trier of fact and judge of the

witnesses’ credibility and of the weight to give to their testimony. Lerma v. State, 543 S.W.3d

184, 190 (Tex. Crim. App. 2018). Moreover, appellate courts apply “a bifurcated standard,

giving almost total deference to the historical facts found by the trial court and analyzing de novo

the trial court’s application of the law.” State v. Cuong Phu Le, 463 S.W.3d 872, 876 (Tex.

Crim. App. 2015); see Arguellez, 409 S.W.3d at 662 (explaining that appellate courts afford

“almost complete deference . . . to [a trial court’s] determination of historical facts, especially if

those are based on an assessment of credibility and demeanor”). “When the trial court does not

file findings of fact concerning its ruling on a motion to suppress, we assume that the court made

implicit findings that support its ruling, provided that those implied findings are supported by the

record.” Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013). “The appellate court

then reviews the trial court’s legal ruling de novo unless the supported-by-the-record implied fact

findings are also dispositive of the legal ruling.” State v. Kelly, 204 S.W.3d 808, 819 (Tex.

Crim. App. 2006). In addition, a trial court’s ruling on the motion will be upheld if it is correct

under any theory of law applicable to the case regardless of whether the trial court based its

ruling on that theory, but “a trial court’s ruling will not be reversed based on a legal theory that

the complaining party did not present to it.” Story, 445 S.W.3d at 732.

Bounds argues that the evidence should have been suppressed under the Fourth

Amendment, which “dictate[s] that no search warrants may be issued without probable cause.”

See Kennedy v. State, 338 S.W.3d 84, 91 (Tex. App.—Austin 2011, no pet.) (citing U.S. Const.

amend. IV). When reviewing a probable-cause determination, the reviewing court employs a

“highly deferential standard,” Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007),

and will uphold a determination of probable cause provided that the magistrate had a

“‘substantial basis’” from which he could conclude “that a search would uncover evidence of

wrongdoing,” Illinois v. Gates, 462 U.S. 213, 236 (1983) (quoting Jones v. United States,

362 U.S. 257, 271 (1960)).

“When determining whether probable cause exists to issue a search warrant,

courts should be mindful of the proposition that there is a ‘strong preference for searches

conducted pursuant to a warrant’ over searches conducted without a warrant.” Kennedy,

338 S.W.3d at 91 (quoting Gates, 462 U.S. at 236). “Because of the preference to be given

search warrants, a search incident to a warrant may be upheld in doubtful or marginal cases in

which a search without a warrant would be unsustainable.” Id.; see also Gates, 462 U.S. at 240

(explaining that preference for warrants is based on idea that it is better practice to allow neutral

magistrate to review evidence rather than officers engaged in competitive field of crime

fighting). Accordingly, “[s]earches justified by a valid warrant have a presumption of legality

unless the opponent produces evidence rebutting the presumption of proper police conduct.”

Pacheco v. State, 347 S.W.3d 849, 855 (Tex. App.—Fort Worth 2011, no pet.).

Under the United States Supreme Court’s decision in Franks v. Delaware, a

warrant must be voided and any evidence obtained pursuant to the warrant suppressed if (1) the

defendant can establish by a preponderance of the evidence that the affidavit supporting the

warrant contains a material misstatement that the affiant made knowingly, intentionally, or with

reckless disregard for the truth; and (2) setting the false statement aside, the affidavit’s remaining

content is insufficient to establish probable cause. 438 U.S. 154, 155-56 (1978); Janecka

v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996); see also Emack v. State, 354 S.W.3d 828,

838 (Tex. App.—Austin 2011, no pet.) (noting that “it is the defendant’s burden to prove the

alleged perjury or reckless disregard for the truth by a preponderance of the evidence”).

Although the Court of Criminal Appeals has assumed that Franks applies to

material omissions, it has not expressly decided the issue. See Diaz v. State, 632 S.W.3d 889,

892, 894 (Tex. Crim. App. 2021); Emack, 354 S.W.3d at 838; see also Gonzales v. State,

481 S.W.3d 300, 311 (Tex. App.—San Antonio 2015, no pet.) (deciding that Franks applies to

material omissions in probable-cause affidavits); Villarreal v. State, Nos. 03-25-00343—00347-CR, 2026 WL 1837321, at *9 (Tex. App.—Austin June 26, 2026, no pet. h.) (mem. op., not

designated for publication) (relying on Gonzales when addressing Franks issue). Determining

that it does apply, our sister court has explained how the analysis would apply to omissions: “a

trial court would determine whether the defendant proved by a preponderance of the evidence (1)

the omissions were in fact made and (2) they were made intentionally or with a reckless

disregard for the accuracy of the affidavit.” Gonzales, 481 S.W.3d at 311; see also United States

v. Pulley, 987 F.3d 370, 376-77 (4th Cir. 2021) (noting that burden is high because affiant cannot

be expected to include every piece of information gathered in investigation). “If the defendant

carries this burden, the trial court would determine whether, if the omitted material had been

included in the affidavit, the affidavit would still establish probable cause for the defendant’s

arrest.” Gonzales, 481 S.W.3d at 311. “If, after including the omitted material, the affidavit did

not establish probable cause, then the search warrant would be voided and the fruits of the search

excluded.” Id.

As set out above, Detective LeFan admitted that he did not include in the affidavit

the statements that Bounds relies on when presenting this issue. Although Detective LeFan

asserted that he would have included them if he had known about them, he clarified that he was

not told about them before he submitted the search-warrant affidavit. To the extent that Bounds

is suggesting that the collective knowledge of the police officers should be imputed in this type

of analysis, we note that we have found federal case law addressing that topic and find it

persuasive. See Guzman v. State, 85 S.W.3d 242, 249 n.24 (Tex. Crim. App. 2002) (noting that

courts may consider federal case law as persuasive authority).

“To establish a Franks violation, the particular affiant must have been

subjectively aware that the false statement or omission would create a risk of misleading the

reviewing magistrate judge and nevertheless chose to run that risk.” Pulley, 987 F.3d at 377.

“The Franks inquiry is designed to identify intentionality or reckless disregard on the part of the

affiant.” Id. at 379. “An officer who does not personally know information cannot intentionally

or recklessly omit it.” United States v. Riaski, 91 F.4th 933, 936 (8th Cir. 2024); Pulley,

987 F.3d at 379. For that reason, at least one court addressing the issue has explained that the

collective knowledge doctrine, which imputes knowledge from one officer to another one, does

not “apply in the Franks context.” Pulley, 987 F.3d at 379.

Recognizing the possibility that law-enforcement could attempt to shield itself

from a Franks suppression hearing by deliberately insulating an affiant from material

information bearing on probable cause, another court explained that the collective knowledge

doctrine should be applied with “special care” and in a limited manner so as not “to extend

Franks to omissions that cannot reasonably be found to have been either deliberate or reckless.”

United States v. Lucas, 379 F. Supp. 3d 182, 194 (W.D.N.Y. 2019). Accordingly, that court

reasoned that Franks is not implicated from the failure to convey information to an affiant

“without any evidence that the failure was undertaken with the intent to deceive.” Id.

With the preceding in mind, we note that no witness other than Detective LeFan

testified at the suppression hearing, and he provided no testimony regarding why Farrington’s

statements were not conveyed to him. Accordingly, even assuming that the collective

knowledge doctrine has any applicability in this context, the trial court was presented with no

evidence that would indicate that the officers initiating the traffic stop withheld the information

at issue with an intent to deceive. See id.

In light of the above, the trial court could have reasonably determined that Bounds

failed to establish that the alleged omission was made intentionally, knowingly, or with a

reckless disregard for the accuracy of the affidavit. See Gonzales, 481 S.W.3d at 311; see also

Auld v. State, 673 S.W.3d 267, 275, 277-78 (Tex. App.—San Antonio 2023, pet. ref’d) (detailing

officer’s explanation for omissions, noting that credibility at issue primarily belonged to author

of affidavit, and concluding that appellate court could not second guess credibility

determination); Islas v. State, 562 S.W.3d 191, 197 (Tex. App.—Houston [14th Dist.] 2018, pet.

ref’d) (noting that defendant bears burden of establishing that statement was omitted

“intentionally, knowingly, or with reckless disregard for the truth”). Accordingly, we conclude

that the trial court did not abuse its discretion by denying Bounds’s motion to suppress. See

Gonzales, 481 S.W.3d at 312. 5

For these reasons, we overrule Bounds’s fourth issue on appeal.

5 In his opening appellant’s brief, Bounds suggested that if this Court were to reverse the trial court’s ruling on his motion to suppress, that ruling should result in the suppression of the text messages from his phone as “derivative evidence” obtained from the search that was not authorized by probable cause under the search warrant. However, in his reply brief, he contends that searching and seizing his phone was outside the scope of the warrant’s plain language because his phone was on his person and because he was outside the residence. Accordingly, he argues that he needed to provide consent to search or that the State needed a separate warrant to seize and search the phone. However, he did not make these arguments in his suppression motion, in his trial brief in support of the suppression motion, or at the suppression hearing. In fact, he argued that “the basis of our entire argument about [the] motion to suppress” were the “two lies . . . told by . . . Farrington” that were not included in the affidavit. See Tex. R. App. P. 33.1 (requiring complaint to be preserved to be addressed on appeal); Aguinaga v. State, 654 S.W.3d 335, 340 (Tex. App.—Eastland 2022, pet. ref’d) (“[B]ecause Appellant did not raise or present the latter ground to the trial court in either his written motion or at the suppression hearing, Appellant has failed to preserve this argument for our review.”).

Jury Charge Errors

In his fifth through seventh issues, Bounds contends that there were charge errors

in the jury instructions. When preparing a jury charge, a trial court must deliver to the jury a

written charge distinctly setting forth the law applicable to the case. Tex. Code Crim. Proc. art.

36.14. Jury instructions must apply the law to the facts adduced at trial and conform to the

allegations in the indictment. Sanchez, 376 S.W.3d at 773. “Jury charges contain both an

abstract section and an application section.” See Torres v. State, 691 S.W.3d 138, 147 (Tex.

App.—Austin 2024, pet. ref’d). The abstract portion of a charge serves as a glossary to explain

the meanings of concepts and terms used in the application paragraph of the charge but “does not

authorize conviction on its own.” Id. “The application paragraph is the portion of the jury

charge that applies the pertinent penal law, abstract definitions, and general legal principles to

the facts and indictment allegations of a given case.” Id. “The application portions allow the

jury to convict a defendant of a particular offense.” Id.

When addressing an alleged jury-charge error, appellate courts must first decide

whether there is error before addressing whether the alleged error resulted in any harm. See

Thanh Cuong Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). In reviewing a charge

for alleged error, we examine the charge as a whole rather than as a series of isolated and

unrelated statements. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).

The amount of harm needed for a reversal depends on whether the complaint

“was preserved in the trial court.” Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—

Austin 2008, pet. ref’d). If no objection was made, a reversal is warranted only if the error

“resulted in ‘egregious harm.’” See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008)

(quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)).

However, if the defendant made a timely objection, reversal is required if there has been “some

harm.” Thanh Cuong Ngo, 175 S.W.3d at 743 (quoting Almanza, 686 S.W.2d at 171).

In assessing harm, appellate courts “consider: (1) the jury charge as a whole,

(2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors

present in the record.” See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

However, “[t]he purpose of the egregious-harm inquiry is to ascertain whether the defendant has

incurred actual, not just theoretical, harm,” Swearingen, 270 S.W.3d at 813, and “reversal for an

unobjected-to erroneous jury instruction is proper only if the error caused actual, egregious harm

to” the defendant, Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). “Egregious

harm is a difficult standard to meet.” Sandoval v. State, 665 S.W.3d 496, 528 (Tex. Crim. App.

2022) (quoting Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016)). Although the

standard is less exacting, in determining whether there is some harm, appellate courts utilize the

same factors as they do when analyzing whether jury-charge error resulted in egregious harm.

See Jenkins v. State, 468 S.W.3d 656, 680 (Tex. App.—Houston [14th Dist.] 2015), pet. dism’d,

improvidently granted, 520 S.W.3d 616 (Tex. Crim. App. 2017). For both the “some” harm

standard and the “egregious” harm standard, “[t]he record must bear out that Appellant suffered

actual harm, not theoretical harm, and neither party has burden to show harm.” Lozano v. State,

636 S.W.3d 25, 29 (Tex. Crim. App. 2021); see Reeves, 420 S.W.3d at 816.

Spoliation Instruction

In his fifth issue, Bounds contends that the trial court erred by failing to include

an instruction in the charge on spoliation that he requested at the charge conference. More

specifically, at trial, he suggested that the police officers improperly failed to preserve the

recording of Farrington’s interview and that the jury should be instructed that it should infer that

the recording of the interview would have been favorable to Bounds. On appeal, he urges that

the recording would have been potentially useful “as the entirety of the case revolved around

Farrington’s original statement to police after his arrest.” Further, Bounds contends that the

recording was relevant and material and that statements made in the interrogation were relied on

in the search-warrant affidavit. Moreover, he asserts that the record shows that the police acted

in bad faith because the room where Farrington was interviewed had equipment capable of

making a recording, because the officers were aware that they had to take action to preserve the

recording but failed to do so, and that the failure to preserve here gives rise to an inference that

the police “desired to prevent a criminal defendant—whether [Farrington] or [Bounds]—from

obtaining the potentially useful evidence from the interview.” Further, Bounds argues that

failing to preserve the recording “destroyed any objective corroboration of the interrogation” and

prevented resolution of the conflict in the testimony between Farrington and the police officers

about whether Farrington received a benefit for cooperating.

Spoliation instructions pertain to the failure to preserve evidence. See Green

v. State, 607 S.W.3d 147, 156 (Tex. App.—Houston [14th Dist.] 2020, no pet.); White v. State,

125 S.W.3d 41, 43-44 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). If the lost or

destroyed evidence was “potentially useful,” meaning that it might have exonerated the

defendant, the defendant must show that the State acted in bad faith to constitute a violation

warranting an instruction. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Ex parte Napper,

322 S.W.3d 202, 229 (Tex. Crim. App. 2010). “[B]ad faith entails some sort of improper

motive, such as personal animus against the defendant or a desire to prevent the defendant from

obtaining evidence that might be useful.” Ex parte Napper, 322 S.W.3d at 238. “Bad faith

requires ‘more than simply being aware that one’s actions or inaction could result in the loss of

something that is recognized to be evidence.’” Green, 607 S.W.3d at 156 (quoting Ex parte

Napper, 322 S.W.3d at 238). It is an “onerous” standard, id. at 157, and “[a] showing of gross

negligence or poor judgment does not qualify as bad faith,” State v. Villarreal, 692 S.W.3d 844,

850 (Tex. App.—Corpus Christi-Edinburg 2024, pet. ref’d). “When conduct can, at worst, be

described as negligent, the failure to preserve evidence does not rise to the level of a due process

violation.” Guzman v. State, 539 S.W.3d 394, 402 (Tex. App.—Houston [1st Dist.] 2017, pet.

ref’d); see Burdick v. State, 474 S.W.3d 17, 27 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

In this case, Sergeant Mount testified that interviews in which Miranda warnings

are given should be recorded, that there were recording devices in the interview room where

Farrington was interviewed, that interviews are automatically recorded, and that a recording will

not be preserved unless a request is made. Similarly, Detective LeFan explained that it was the

interviewing officers’ responsibility to preserve a recording if it would be used as evidence.

Although Sergeant Mount explained that neither he nor Detective LeFan requested that the

interview be preserved, he testified that he did not learn of the oversight until it was too late.

This evidence does not show that the failure to preserve was caused by bad faith. See Williams

v. State, No. 05-21-00920-CR, 2022 WL 18006700, at *9-10 (Tex. App.—Dallas Dec. 30, 2022,

no pet.) (mem. op., not designated for publication) (concluding that testimony that police officer

lost recording of interview by improperly archiving it did not constitute bad faith to support

spoliation instruction); Weldon v. State, No. 01-15-00779-CR, 2016 WL 3162342, at *2 (Tex.

App.—Houston [1st Dist.] June 2, 2016, pet. ref’d) (mem. op., not designated for publication)

(determining that failure to scan pictures was inadvertent and negligent but not bad faith).

In light of the preceding, we believe that Bounds did not carry his burden to show

bad faith to support a spoliation instruction. See Ex parte Napper, 322 S.W.3d at 229; Moody

v. State, 551 S.W.3d 167, 172 (Tex. App.—Fort Worth 2017, no pet.). Accordingly, we

conclude that the trial court did not err by denying his request for a spoliation instruction. See

Guzman, 539 S.W.3d at 402 (deciding that trial court did not err by denying request for

spoliation instruction where there was no evidence that State lost or destroyed recording in

bad faith).

For these reasons, we overrule Bounds’s fifth issue on appeal.

Corroboration Instruction Under Section 481.182

In his sixth issue on appeal, Bounds asserts that the trial court should have

included an instruction under section 481.182 of the Health and Safety Code, which as set out

above requires in offer-to-sell cases that proof of the offer be corroborated by a person other than

to whom the offer was made or evidence other than a statement of the person to whom the offer

was made. Tex. Health & Safety Code § 481.182. Bounds contends that because it was law

applicable to the case, the trial court’s failure to provide an instruction was error.

The indictment alleged that Bounds delivered methamphetamine by actually

transferring, constructively transferring, or offering to sell. During the trial, Farrington testified

that Bounds offered to sell him methamphetamine. Cf. Schneider v. State, 951 S.W.2d 856, 860

(Tex. App.—Texarkana 1997, pet. ref’d) (explaining that “‘offer’ means either a mere suggestion

of an exchange (verbal conduct alone) or actual presentation of a controlled substance (deeds)”).

The jury charge also included an instruction for delivery by offering to sell. However, as pointed

out by Bounds, there is no corroboration instruction in the jury charge. “When the State relies

upon testimony that is required by statute to be corroborated, it is error for the trial court not to

instruct the jury” on the need for corroboration. See Simmons, 205 S.W.3d at 77 (applying

analysis to accomplice testimony under article 38.141 of Code of Criminal Procedure); see also

Committee on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges:

Culpability (“CPJC”) ch. 81.14 (2024) (including corroboration instruction in offer-to-sell

instructions); Lozano v. State, 706 S.W.3d 429, 458 (Tex. App.—Austin 2024, no pet.) (relying

on pattern jury charges when addressing jury-charge error).

Having found error, we must now consider whether Bounds was harmed by the

error. See Thanh Cuong Ngo, 175 S.W.3d at 743. Bounds asserts that he was harmed because

the evidence corroborating the offer to sell was minimal. As support, Bounds emphasizes that

Sergeant Mounts did not recognize Bounds as the person walking to the truck until after he went

back to the home and after Farrington had identified Bounds as the person who got in his truck,

that Sergeant Mount did not see a drug exchange in the truck, and that the tips given to the police

about the Karolyn home did not have anything to do with Bounds. Bounds also suggests that the

evidence linked him only to Xanax, not methamphetamine. Bounds theorizes that “[r]ational

jurors would have found the State’s case significantly less persuasive had they been told that

Farrington’s testimony could not be accepted without corroboration.” Further, Bounds contends

that the State heavily relied on the offer-to-sell manner of establishing delivery. Additionally, he

notes that Farrington’s testimony established that he did not remember what happened that day

and that Farrington’s credibility was disputed.

Bounds did not object to the exclusion, so we review the error for egregious harm,

see Neal, 256 S.W.3d at 278, and consider the factors set out above, see Reeves, 420 S.W.3d at

816. Regarding the charge as a whole, we observe that nothing in the remainder of the charge

corrected the error set out above or otherwise indicated that corroboration was required.

Accordingly, we believe that this factor weighs in favor of finding that Bounds was harmed by

the erroneous omission.

Concerning the arguments of counsel, we note that neither the State nor

Farrington explained in their closing arguments that Farrington’s statement pertaining to an offer

to sell needed to be corroborated and that the State emphasized Farrington’s admissions in its

closing argument. However, we also note that the State repeatedly asserted that Farrington’s

testimony was corroborated by observations by the police, by the text messages between Bounds

and Farrington, and by other evidence. Further, the State set out the corroborating evidence

during its closing and explained that the evidence at trial also established that Bounds actually

transferred and constructively transferred the methamphetamine found in Farrington’s truck.

Additionally, Bounds repeatedly argued in his closing that Farrington was not credible. Based

on the preceding, we conclude that the arguments of counsel weigh in favor of harm but only

slightly so.

Turning to the evidence, we first note that “[u]nder the ‘egregious harm standard,’

the omission of a corroborating-evidence instruction may be rendered harmless if other evidence

than” the witness’s statement “does exist that fulfills the purpose of the instruction.” See

Simmons, 205 S.W.3d at 77. “This is said to be so because the instruction merely informs the

jury that it cannot use” the statement at issue “unless it is first determined that other evidence

exists” corroborating the statement. See id. “Once it is determined that such other evidence

exists, the purpose of the instruction may have been fulfilled.” See id. Additionally, the

corroboration requirement for offer-to-sell cases under section 481.182 of the Health and Safety

Code is not as stringent as the one “applicable in accomplice witness settings.” See Vivanco

v. State, 825 S.W.2d 187, 191 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d). Accordingly,

the testimony of the person to whom the offer is made “is relevant and should be taken in

conjunction with the other evidence presented.” Id. at 191-92.

As discussed previously, Farrington testified that he drove to the Karolyn home to

purchase methamphetamine after Bounds offered to sell him some. That statement was

corroborated by the text messages between Farrington’s and Bounds’s phones in which Bounds

previously told Farrington to go to the Karolyn home, offered to sell drugs to Farrington on

April 4 for $150 for a “half” or $120 for a “quarter,” and asked Farrington to let him know when

he was “ready” at 7:48 a.m. on April 5. See Knight v. State, 91 S.W.3d 418, 422 (Tex. App.—

Waco 2002, no pet.) (noting that “an electronic recording of the transaction” can provide

sufficient corroboration); see also Cook, 460 S.W.3d at 710 (noting that text messages between

defendant and individual “to set up a purchase” of drugs at certain date and location helped

provide required corroboration).

Moreover, Sergeant Mount observed an interaction between Farrington and an

individual from the Karolyn home around the time of the scheduled drug transaction mentioned

in the text exchange in which the individual got into Farrington’s truck briefly before the truck

drove away, and Sergeant Mount testified that this type of encounter was consistent with a drug

transaction. See Knight, 91 S.W.3d at 422 (explaining that testimony from witness to transaction

other than from offeree can provide corroboration in offer-to-sell case). In addition, although

Sergeant Mount did not initially recognize Bounds as the individual who walked to the truck, he

returned to the property a few hours later, recognized Bounds, and realized Bounds was wearing

the same clothes as the individual who got into the truck. The traffic stop initiated by the police

shortly after Farrington drove away from the Karolyn home resulted in the discovery of

methamphetamine inside the truck. Although Farrington testified that he did not purchase drugs

from Bounds that day, the amount discovered inside the truck was consistent with the amount

Bounds offered to sell Farrington in their text exchange. See Vivanco, 825 S.W.2d at 192 (“The

delivery of some drugs also serves to corroborate the offer to sell.”).

The evidence summarized above strongly corroborated Farrington’s statement

that Bounds offered to sell him drugs and also established Bounds’s guilt by delivering through

an actual transfer of methamphetamine. As a result, we conclude that the state of the evidence

strongly weighs in favor of Bounds’s having not been harmed by the omission. See Campbell

v. State, 227 S.W.3d 326, 331, 332 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (determining

that defendant was not egregiously harmed by alleged jury-charge error, in part, because

“overwhelming weight of the evidence supported the jury’s verdict”); see also Lozano,

636 S.W.3d at 29 (noting that defendant must suffer actual and not just theoretical harm).

Regarding the final factor, nothing in our review of the record has revealed any

other relevant information bearing upon our harm analysis. Although the State discussed during

voir dire how a person can be found guilty of delivery by offering to sell, the State did not

discuss whether an offeree’s testimony could help establish guilt or whether that testimony

would need to be corroborated.

Given our resolution of the factors listed above, we conclude that the jury-charge

error did not egregiously harm Bounds. See Pena v. State, 251 S.W.3d 601, 611-12 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d) (concluding that defendant was not egregiously

harmed by omission of corroboration instruction even though nothing in totality of charge

corrected error and State misstated law during closing argument because evidence “negate[d] any

harm” as it was “convincing and persuasive without the testimony” needing corroboration).

For these reasons, we overrule his sixth issue on appeal.

Corroboration Instruction Under Article 38.141

In his seventh issue, Bounds contends that the trial court erred by failing to

include a corroboration instruction under article 38.141 of the Code of Criminal Procedure

pertaining to covert actors acting on behalf of law enforcement. See Tex. Code Crim. Proc. art.

38.141. Bounds contends that Farrington qualified as an informant, meaning that he was a

discredited witness motivated by selfish interests. Accordingly, Bounds urges that the trial court

should have included an instruction under article 38.141.

However, we previously determined that article 38.141 did not apply to this case

because Farrington was not acting covertly for law enforcement. Accordingly, article 38.141

was not law applicable to the case, and the trial court, therefore, did not err by failing to include

an instruction for that provision. Cf. Zamora v. State, 411 S.W.3d 504, 512 n.4 (Tex. Crim. App.

2013) (explaining that “a trial court’s burden to sua sponte instruct the jury on

accomplice-witness testimony arises only when the evidence raises the issue”).

For that reason, we overrule Bounds’s seventh issue on appeal.

Cumulative Harm

In his last issue, Bounds contends that the cumulative harm from jury charge

errors stemming from the omission of the corroboration instructions and from the denial of his

motion to suppress should result in a reversal of his conviction even if the harm from the errors

considered individually does not.

However, as set out above, we concluded that the trial court did not err by

denying the motion to suppress or by failing to include an instruction under article 38.141.

Accordingly, those rulings by the trial court could not serve as a basis for finding cumulative

harm. See Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009) (explaining that

non-errors do not, in their cumulative effect, cause harm); Ruffins v. State, 691 S.W.3d 166,

188-89 (Tex. App.—Austin 2024, no pet.) (determining there was no cumulative harm where

trial court did not err in making its rulings and where defendant did not preserve one of his

claims). Further, we determined that the omission of the instruction under section 481.112 did

not egregiously harm Bounds. See Tex. Health & Safety Code § 481.112; Neal, 256 S.W.3d at

278. Having found no harm from a single error, we conclude that Bounds did not suffer

cumulative harm. See Love v. State, 706 S.W.3d 584, 612 (Tex. App.—Austin 2024, pet. ref’d)

(concluding that there was not cumulative harm when court determined that only one asserted

error was error and it was not harmful); see also Moreno v. State, No. 13-22-00267-CR,

2023 WL 4945083, at *5 (Tex. App.—Corpus Christi-Edinburg Aug. 3, 2023, no pet.)

(mem. op., not designated for publication) (“[A]s the name of the doctrine suggests, a single

harmless error cannot rise to the level of cumulative harm.”).

For these reasons, we overrule Bounds’s final issue on appeal.

CONCLUSION

Having overruled all of Bounds’s issues on appeal, we affirm the trial court’s

judgment of conviction.

Karin Crump, Justice

Before Justices Triana, Crump, and Ellis

Affirmed

Filed: October 8, 2026

Do Not Publish

Austin McLure Bounds v. the State of Texas

Authorities cited

Opinion · public domain