Opinion
No. 14-04-00674-CR
Memorandum Opinion filed February 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 344th District Court, Chambers County, Texas, Trial Court Cause No. 11937. Affirmed.
Panel consists of Justices HUDSON, FROST, and SEYMORE.
MEMORANDUM OPINION
Challenging his conviction for possession of a controlled substance (cocaine) with intent to deliver, appellant, Kenol Luxama, asserts that the trial court abused its discretion by denying his motion to suppress evidence he claims was illegally obtained. Appellant also challenges the legal and factual sufficiency of the evidence supporting his conviction and various evidentiary rulings by the trial court. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of September 11, 2001, Trooper Lawrence Lilly of the Department of Public Safety was sitting stationary in his patrol car on Interstate 10 in Chambers County. Trooper Lilly observed a U-Haul rental truck with a license plate that was dirty and unreadable, a violation of state traffic laws, and so Trooper Lilly conducted a traffic stop. Appellant was driving the vehicle and Bertin Loubeau was in the passenger seat. After the stop, both individuals got out of the U-Haul. Trooper Lilly examined the license plate and still was unable to read it until he was right on top of it. He informed appellant and Loubeau that he had stopped them because they had violated a state traffic law by operating a vehicle with an unreadable license plate. Trooper Lilly noticed that appellant's and Loubeau's demeanor was inconsistent with individuals stopped for a minor traffic violation in that they were fidgety, very nervous, and made no eye contact. Trooper Lilly then asked routine questions, such as where they were headed. Appellant stated they were headed to Florida; Loubeau stated they were going to Beaumont, Texas. Trooper Lilly then asked them who owned or had rented the U-Haul. The men again were inconsistent in their responses. Appellant stated Loubeau was the renter of the truck; Loubeau stated a woman named "Sarah" had rented the truck. At this point, Trooper Lilly decided to get closer to the license plate to discern what was covering it. He concluded, after attempting to remove the substance, that it was spray paint. Trooper Lilly called for verification of the license plate number. While he was waiting, Trooper Lilly again spoke to appellant, who stated the items in the U-Haul belonged to Loubeau, although appellant previously had stated they belonged to a female friend. At this point, Trooper Lilly became suspicious and requested appellant's consent to search the U-Haul. Although Trooper Lilly had seen appellant in the driver's seat, appellant claimed he had not been driving and stated the contents of the truck belonged to Loubeau, not him. Trooper Lilly then asked and received Loubeau's consent to search. Loubeau gave Trooper Lilly the key to the U-Haul. Upon opening the rear of the truck, Trooper Lilly discovered it was filled with furniture and appliances, including, among other things, mattresses, a couch, an old television, a washer, a dryer, and a stove. The furniture and other items, however, were very old and dirty and it appeared to him that the contents of the truck could be a "cover load." Trooper Lilly then requested a drug detection canine and back-up. Trooper Lilly also noticed the U-Haul smelled like Pinesol, a cleaning product, which, based on his extensive training and experience in narcotics, was frequently used to mask the smell of narcotics. While waiting for the canine unit and back-up, Trooper Lilly began to investigate the contents of the U-Haul. The television was an older model and Trooper Lilly noticed there was fresh glue on the back of it. He took a knife out of his pocket and made a small hole in the back of the cardboard covering the back of the television. Inside the television, Trooper Lilly noticed large amounts of a substance that resembled cocaine. He immediately placed appellant and Loubeau into custody. Corporal Smith and the drug detection canine arrived approximately five minutes later and assisted with the rest of the search. The U-Haul was then impounded and taken to the Baytown Highway Patrol office for safety reasons and to check the contents more thoroughly for contraband. Additional cocaine was discovered in the washer and dryer, between the drum and oil well. Each bundle of cocaine appeared to have toothpaste on its exterior. The amount of cocaine found inside the U-Haul totaled 75 kilograms. Appellant was arrested and charged with the offense of possession of a controlled substance, in an amount of four hundred grams or more, with the intent to deliver. Appellant pleaded not guilty. At the time of his arrest appellant had two receipts in his wallet. The first showed the purchase of an electric stove, air conditioner, and dryer on September 6, 2001; the second showed the purchase a sofa, mattress, box spring, bed frame, and television from the Salvation Army on September 10, 2001. At trial, the State used these receipts to tie appellant to the contraband. Captain Richard Miller of the Freeport Police Department testified he had been investigating a ship, MV Salome, suspected for narcotics trafficking, and believed that ship was going to come into Freeport, Texas. On September 10, 2001, the date on the second receipt, Captain Miller, investigating suspicious activity, went to a storage facility (Brazos Self Storage) owned by Ms. Cameron. At trial, Ms. Cameron testified the U-Haul and appellant's vehicle had been at that location. Captain Miller testified he had stopped appellant's vehicle in his jurisdiction earlier on September 10, 2001. Additionally, Ms. Cameron stated appellant told her that he owned the MV Salome. Captain Miller received a search warrant for the storage unit in question, and found empty packaging consistent with packing controlled substances. Captain Miller also found masking tape, empty toothpaste boxes, empty toothpaste tubes, engine grease, and Pinesol. A narcotics canine was summoned to the location and alerted within the storage unit. The woman who actually rented the U-Haul, Sarah Wright, also testified for the State. Wright knew appellant and referred to him as "Kenny." She rented the U-Haul at the request of another individual, Antoine Joseph. At the time, Wright believed the U-Haul was to be used to pick up some appliances at Mr. Mo's appliance store. Wright went to the appliance store for the pick-up to make sure this was true. Wright further testified that when they arrived at the appliance shop, the proprietor (Mr. Mo) mentioned they were to pick up some appliances that "Kenny" had purchased. Wright also saw a receipt at the appliance shop with appellant's name on it. A jury found appellant guilty of the charged offense, and the trial court, in a separate punishment hearing, assessed punishment at fifty years' confinement in the Texas Department of Criminal Justice, Institutional Division.II. ISSUES PRESENTED
Appellant presents the following points for appellate review:(1) The trial court abused its discretion by denying appellant's oral motion to suppress evidence obtained as the result of an allegedly illegal search and seizure.
(2-3) The evidence is legally and factually insufficient to support conviction of possession of a controlled substance (cocaine) with the intent to deliver.
(4) The trial court abused its discretion in overruling appellant's hearsay and notice objections as to the receipts found in appellant's wallet.
(5) The trial court abused its discretion in overruling appellant's objections to the introduction of alleged extraneous-offense evidence.
III. ANALYSIS
A. Did the trial court abuse its discretion by denying appellant's oral motion to suppress evidence allegedly obtained as the result of an illegal search and seizure? In his first issue, appellant argues the trial court erred in overruling his oral motion to suppress evidence seized during a warrantless search. We review the trial court's ruling on a motion to suppress under an abuse-of-discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex.Crim.App. 1991). A trial court's ruling on a motion to suppress, if supported by the record, will not be overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex.App.-Houston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor, but we review de novo the trial court's application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When, as in this case, the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court implicitly made findings of fact that support its ruling as long as those implied findings of fact are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Because the trial judge was free to believe any or all evidence presented and to make a determination of historical facts supported by the record after evaluating the credibility and demeanor of the witnesses at the hearing, we give the trial court's decision deference. See Guzman, 955 S.W.2d at 89. Appellant argues Trooper Lilly did not have probable cause to stop the U-Haul and conduct the search and seizure. We disagree with appellant's arguments. We conclude that not only did Trooper Lilly have probable cause to stop the vehicle, the resulting search and seizure were based on valid consent. We begin with the initial traffic stop. A police officer may stop and temporarily detain a driver for a traffic violation, and he may arrest for offenses discovered while investigating the traffic offense and search the car and the area of the car incident to the discovered offense. McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App. 1993) (holding officer may stop and detain for traffic offense); Armitage v. State, 637 S.W.2d 936, 939 (Tex.Crim.App. 1982). Section 502.409 of the Texas Transportation Code states in relevant part:(a) A person commits an offense if the person attaches to or displays on a motor vehicle a number plate or registration insignia that:
. . .
(5) has letters, numbers, or other identification marks that because of blurring or reflective matter are not plainly visible at all times during daylight;
(6) has an attached illuminated device or sticker, decal, emblem, or other insignia that is not authorized by law and that interferes with the readability of the letters or numbers on the plate or the name of the state in which the vehicle is registered; or
(7) has a coating, covering, or protective material that:
(A) distorts angular visibility or detectability; or
(B) alters or obscures the letters or numbers on the plate, the color of the plate, or another original design feature of the plate.TEX. TRANSP. CODE ANN. § 502.409 (Vernon 2003) (emphasis added). Trooper Lilly observed the U-Haul pass with a license plate that was dirty and unreadable. Knowing that having an unreadable license plate is a violation of state traffic laws, Trooper Lilly initiated a traffic stop. He was unable to read the license plate until he was right next to it. When he bent down to scrape off the substance, he realized the license plate had been covered with spray paint. He informed appellant and Loubeau that he had stopped the vehicle because they violated a state traffic law by operating the U-Haul with an unreadable license plate. It was reasonable for Trooper Lilly to conduct an investigation of this traffic law infraction. See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3149-50, 82 L. Ed. 2d 317 (1984); Martinez v. State, 29 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). To determine the reasonableness of the investigative detention, we apply the Terry test inquiry. Specifically, we must ascertain: (1) whether the officer's action was justified at its inception; and (2) whether such action was reasonably related in scope to the circumstances that justified the initial interference. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968). The investigative detention must be temporary and cannot last longer than necessary to (1) determine why the license plate was covered, (2) check for outstanding warrants, and (3) request documentation, i.e., (i) a driver's license; (ii) insurance papers; and (iii) identification. Davis v. State, 947 S.W.2d 240, 244 n. 6 (Tex.Crim.App. 1997). Additionally, the officer may ask about the driver's destination and purpose of travel during a valid detention. Powell v. State, 5 S.W.3d 369, 377 (Tex.App.-Texarkana 1999, pet. ref'd). Trooper Lilly asked appellant for his driver's license and questioned him about his previous whereabouts. After noticing that both driver and passenger were fidgety, very nervous, and made no any eye contact — demeanor that was not typical of individuals stopped for a minor traffic violation — Trooper Lilly then asked routine questions. The men were inconsistent in their answers. Trooper Lilly then called in the license plate number and again asked appellant who owned the items in the U-Haul. Appellant stated the items in the U-Haul belonged to Loubeau, although he previously had stated they belonged to a female friend. Trooper Lilly was well within the temporal scope of the initial investigation because the routine procedures, such as running a check on the driver's license or a background, had not been completed. See Davis, 947 S.W.2d at 245. Based on their answers to his questions and their unusual demeanor, Trooper Lilly became suspicious and requested consent to search the U-Haul. The officer had not yet completed his traffic investigation when he requested and received consent to search. See State v. Cardenas, 36 S.W.3d 243, 247 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). A voluntary consensual search is an exception to the probable cause and warrant requirements of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). The State has the burden of proof by clear and convincing evidence that consent was freely and voluntarily given. State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App. 1997). Although we defer to the trial court for fact findings, we review de novo the legal question of whether consent was voluntary. Guzman, 955 S.W.2d at 87. Consent must not be the product of duress or coercion, express or implied. Reasor, 12 S.W.3d at 817. It must be positive and unequivocal, and it is not shown by acquiescence to a claim of lawful authority. Allridge v. State, 850 S.W.2d 471, 492-93 (Tex.Crim.App. 1991). Whether consent was voluntary is determined from the totality of the circumstances. Reasor, 12 S.W.3d at 818. An officer's testimony that consent was voluntarily given can be sufficient evidence to prove the voluntariness of the consent. Martinez v. State, 17 S.W.3d 677, 683 (Tex.Crim.App. 2000); Morris v. State, 50 S.W.3d 89, 99 (Tex.App.-Fort Worth 2001, no pet.). Trooper Lilly testified Loubeau gave consent to search after appellant renounced ownership of the contents of the vehicle. Despite appellant's contentions, it is unclear from the videotape (which is fuzzy and slightly out of focus) if this is untrue. Because the trial court is the ultimate arbiter of the facts that turn on the credibility of the witnesses, we must give deference to its fact findings. Johnson v. State, 68 S.W.3d 644, 652 (Tex.Crim.App. 2002). Considering the totality of the circumstances, and finding no evidence of coercion or duress, we conclude the record supports a determination that Loubeau voluntarily consented for Trooper Lilly to search the U-Haul. See Reasor, 12 S.W.3d at 818. Next, we examine whether the search exceeded the scope of the consent. The extent of a valid search is limited to the scope of the consent given, and the scope of the consent is generally defined by its expressed objective. DuBose v. State, 915 S.W.2d 493, 496 (Tex.Crim.App. 1996). The standard for measuring the scope of consent is that of "objective reasonableness" — what the typical reasonable person would have understood by the exchange between the officer and the individual. Id. Trooper Lilly asked for permission to search the U-Haul based on the conflicting information received and the behavior of appellant and Loubeau. Upon opening the rear of the U-Haul, Trooper Lilly noticed the furniture was very old and dirty. Trooper Lilly concluded it might be a "cover load." Trooper Lilly also noticed the U-Haul smelled like a household cleaning product frequently used to mask narcotics. He noticed an old television with fresh glue on the back of it. Trooper Lilly took a knife out of his pocket, made a small hole in the cardboard on the back of the television to look inside. The object of the requested search was narcotics, and the subsequent search, including the use of the trained canine, did not exceed the scope of the consent given. See Estrada v. State, 30 S.W.3d 599, 603 (Tex.App.-Austin 2000, no pet.). We further conclude this consent to search was valid as to appellant as he specifically failed to show that his own privacy rights were violated. It is well recognized that a defendant may challenge a search and seizure only if he had a legitimate expectation of privacy in the place where the police found the evidence. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 143-45, 99 S. Ct. 421, 430-31, 58 L. Ed. 2d 387 (1978); Liebman v. State, 652 S.W.2d 942, 944 (Tex.Crim.App. 1983). A defendant, who bears the burden of demonstrating a legitimate expectation of privacy, can meet this burden by establishing he had a subjective expectation of privacy in the place invaded that society is prepared to recognize as reasonable. Granados v. State, 85 S.W.3d 217, 223 (Tex.Crim.App. 2002). We note that in some cases, the issue of whether a reasonable expectation of privacy exists and the issue of abandonment are separated by only a fine line. Where ownership is abandoned or disclaimed prior to a search, no Fourth Amendment violation occurs because the defendant has no legitimate expectation of privacy in property that already has been abandoned. Franklin v. State, 913 S.W.2d 234, 240 (Tex.App.-Beaumont 1995, pet. ref'd). If a privacy expectation has not been abandoned at the time of the search, however, the defendant may raise complaints regarding the search. Id. For abandonment to occur, a defendant must (1) intend to abandon the property, and (2) freely decide to abandon the property; i.e., the decision must not be merely the product of police misconduct. Salcido v. State, 758 S.W.2d 261, 263 (Tex.Crim.App. 1988). Whether an individual has abandoned or disclaimed property may be inferred from his words, acts, or other facts. Armstrong v. State, 966 S.W.2d 150, 153 (Tex.App.-Austin 1998, no pet.). In this case, appellant specifically renounced any ownership in the vehicle, stating that he did not rent the vehicle nor did he own its contents. Appellant had the opportunity to either give or withhold consent when he was asked; instead, he elected to direct the officer to Loubeau, who gave consent. We conclude appellant freely intended to abandon any interest in the property and its contents, and the trial court was correct in overruling appellant's motion to suppress. See Hypolite v. State, 985 S.W.2d 181, 185-88 (Tex.App.-San Antonio 1998, no pet.) (holding that because [Hypolite] disclaimed any legitimate expectation of privacy in the suitcase, he cannot complain that his Fourth Amendment rights were violated by the subsequent search of the suitcase); O'Shea v. State, 740 S.W.2d 527, 528 (Tex.App.-Houston [14th Dist.] 1987, no pet.) (stating when a defendant abandons the property or any interest in prior to the search, the defendant has no standing to contest its seizure and seek its suppression as evidence); Tankoy v. State, 738 S.W.2d 63, 67 (Tex.App.-Houston [1st Dist.] 1987, no pet.) (stating police officers were free to open and search baggage without a warrant or consent, as bag and its content were abandoned by defendant and codefendant when both denied ownership of baggage); Johnson v. State, 684 S.W.2d 129, 131-32 (Tex.App.-Houston [14th Dist.] 1984, no pet.) (holding that because appellant readily admitted on the witness stand he had no interest whatsoever in the car or its contents, he may not now complain the search and seizure was unlawful simply because the evidence was used against him). We conclude that not only did Trooper Lilly have probable cause to stop the vehicle, the resulting search and seizure were based on valid consent. Accordingly, we overrule appellant's first issue.
B. Is the evidence legally and factually sufficient to support appellant's conviction of possession of a controlled substance (cocaine) with the intent to deliver?
In his second and third issues, appellant argues the evidence is legally and factually insufficient to support his conviction of possession of a controlled substance, namely cocaine, with the intent to deliver. In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In conducting the factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder. Id. at 481-82. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). In conducting a factual sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The elements of the offense of delivery of a controlled substance are (1) a person, (2) knowingly or intentionally, (3) delivers, (4) a controlled substance. TEX. HEALTH SAFETY CODE ANN. § 481.112(a) (Vernon Supp. 2000); see also Cornejo v. State, 871 S.W.2d 752 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Additionally, to prove unlawful possession of a controlled substance, the State must show that appellant exercised care, control, and management over the contraband; and that appellant knew what he possessed was contraband. See Abdel-Sater v. State, 852 S.W.2d 671, 675 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). In a delivery or possession-with-intent-to-deliver case, intent to deliver may be proved by circumstantial evidence. Moss v. State, 850 S.W.2d 788, 797 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). Further, intent is a question of fact to be determined by the trier of fact based upon circumstantial evidence adduced at trial. See Puente v. State, 888 S.W.2d 521, 527 (Tex.App.-San Antonio 1994, no pet.). Intent can be inferred from the acts, words, or conduct of the accused. See id. Finally, the control over the contraband need not be exclusive, but can be jointly exercised by more than one person. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985). The State introduced legally and factually sufficient evidence to show that appellant intentionally and knowingly possessed cocaine with the intent to deliver. The State also introduced evidence of several affirmative links that showed appellant's knowledge and control of the cocaine. Appellant was driving the vehicle in which the contraband was found. Among the affirmative links offered to show appellant's connection to the cocaine were the receipts tying him to the furniture and appliances in the U-Haul and the storage facility where items to package the cocaine were found. The two receipts in appellant's wallet showed he had purchased an electric stove, air conditioner, and dryer on September 6, 2001, and a sofa, mattress, box spring, bed frame, and television on September 10, 2001. Captain Miller testified he went to a storage facility owned by Ms. Cameron and received a search warrant for the storage unit in question. There, he found empty packaging consistent with packing controlled substances, as well as masking tape, empty toothpaste boxes, empty toothpaste tubes, engine grease, and Pinesol. Ms. Wright, the woman who rented the U-Haul, testified that when they arrived at Mr. Mo's appliance shop, the proprietor stated they were to pick up some appliances that "Kenny" had purchased. Ms. Wright also saw a receipt at Mr. Mo's shop with appellant's name on it. Ms. Cameron, the owner of the storage facility, testified she had seen both appellant's vehicle and the U-Haul at that location. We conclude the logical force from the totality of the links is sufficient for a rational jury to have affirmatively linked appellant to the contraband and found that appellant exercised care, custody, control, or management over the contraband and had the intent to distribute. See Roberson v. State, 80 S.W.3d 730, 736-42 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Moreover, a rational jury could have found the elements of the offense beyond a reasonable doubt. See Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003). We conclude the evidence is both legally and factually sufficient to support appellant's conviction, and overrule appellant's second and third issues.C. Did the trial court abuse its discretion in overruling appellant's hearsay and notice objections as to the receipts found in appellant's wallet?
In his fourth issue, appellant argues the trial court abused its discretion in overruling his hearsay and notice objections to the admission into evidence of the receipts found in appellant's wallet — the State's exhibits 7 and 8. At trial, the following exchange occurred in regard to appellant's objections to this evidence:The State: I tender Exhibits 7 and 8 for inspection, Judge.
Defense Counsel: Judge, I object to 7 and 8 for the same reasons. One, the items are attached to a Rule 902 affidavit. They are hearsay. They are not admissible. Second, if they were found in Mr. Luxama's wallet, they were the product of an illegal search and seizure of the items that were in his wallet.
The Court: Are you objecting to the affidavit? Is that what you are objecting to?
Defense Counsel: They are together. What I am saying, it is hearsay.
The State: They are business records, Judge.
The Court: Business records of who?
Defense Counsel: They are not business records.
The State: They are business records.
The Court: May I see them, please?
Defense counsel: I would also, if I may, talk to you while you are reading them.
The Court: Just a second, please. You are offering these as business records? These business records, you are saying-the officer's testimony was they were found in Mr. Luxama's —
The State: These documents were found in Mr. Luxama's possession. They are business records of —
May we approach?
The State: These are the same records Mr. Green admitted in Mr. Loubeau's case.
The Court: There are different lawyers involved in this case, Counsel.
The State: Yes, sir.
Defense Counsel: What I wanted to tell you so it's clear to you, I mean, what has been said, those documents were taken out of my client's wallet.
The Court: I am not worried about search and seizure.
Defense Counsel: Somehow they got to the owner of these businesses. They were attached with business record affidavits to them so they wouldn't have to call them down here and they are hearsay, Judge.
The State: This is the whole purpose of having business records on file.
Defense Counsel: I didn't have notice of it.
The State: They have been on file for two years, Judge.
The Court: They have been on file here for two years?
The State: On file for two years.
The Court: Overruled.
Defense Counsel: Note my objection.We review a trial court's decision to admit or exclude evidence using the abuse-of-discretion standard. Rankin v. State, 821 S.W.2d 230, 233 (Tex.App.-Houston [14th Dist.] 1991, no pet.). A trial court abuses its discretion when it acts in an arbitrary and capricious manner and its decision is so clearly wrong that it lies outside the zone with which reasonable persons might disagree. See Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004); Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). We conclude the trial court did not abuse its discretion in overruling appellant's objections on the basis of hearsay or lack of notice. The rules of evidence allow the admission of records kept in the course of regularly conducted activities. TEX. R. EVID. 803(6). For a document to be properly admitted under Texas Rule of Evidence 803(6), the proponent must prove the document was made at or near the time of the events recorded, from information transmitted by a person with knowledge of the events, and made or kept in the course of a regularly conducted business activity. Id. The predicate for admission of a business record may be established by an affidavit that complies with Texas Rule of Evidence 902(10). Id. Counsel must provide prompt notice not only to the clerk of the court, but also to opposing counsel according to the methods set forth in Texas Rule of Civil Procedure 21(a) at least fourteen days prior to commencement of trial. TEX. R. EVID. 902(10)(a). Proper notice requires the attorney of record to certify compliance through a writing over signature and on the filed instrument. Tex. R. Civ. P. 21(a). Rule 902(10)(a) allows for the admission of self-authenticated business records that are accompanied by an affidavit. TEX. R. EVID. 902(10)(a). This rule states that the records will be admissible if "the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit." Id. Rule 902(10)(b) states that if a party follows the form provided in the rule, the affidavit required under Rule 902(10)(a) will be sufficient. TEX. R. EVID. 902(10)(b). The two affidavits track the form of the affidavit provided in Rule 902(10)(b). See TEX. R. EVID. 902(10)(b). In the trial court, the State prosecuted Loubeau in Cause No. 11936 and appellant in Cause No. 11937. There is no dispute that appellant and Loubeau were represented by the same counsel, Mr. Thomas Niederhofer, in 2002 and that in both cases Mr. Niederhofer received notice under Rule 902(10) of the filing of a business-records affidavit for the documents contained in Exhibits 7 and 8. Mr. Niederhofer later withdrew from his representation of appellant in the case below. Another attorney, Michael McNeely, represented appellant at trial. Although notice was not re-sent, the record demonstrates that the State filed business records affidavits for Exhibits 7 and 8 in this case in 2002. At the time of appellant's trial, these affidavits had been on file for two years. Although Mr. McNeely complains that these affidavits were not in the file he received when he took over this case from Mr. Niederhofer, appellant has not cited and we are not aware of any authority that requires the Rule 902 notice to be given again if new counsel is substituted. The Rule 902(10) affidavits were sufficient and notice of their filing in this case was given to appellant's counsel of record when the State filed these affidavits. Because the State complied with the requirements of Rule 902(10), the trial court did not abuse its discretion in admitting exhibits 7 and 8 into evidence. See Harris v. State, 799 S.W.2d 348, 350-51 (Tex.App.-Houston [14th Dist.] 1990, no pet.) (rejecting a formalistic interpretation of rule 902(10) when the parties had been given notice in an earlier cause number involving similar facts). But even if the trial court had erred in overruling this objection, the record does not show this ruling would result in reversible error. Under Texas Rule of Appellate Procedure 44.2(b), we are to disregard any error unless it affects appellant's substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the error had a substantial, injurious effect or influence on the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). In this case, there was a substantial amount of properly admitted testimony regarding appellant's link to the furniture and appliances. For instance, the woman who actually rented the U-Haul (Wright) testified she knew appellant and referred to him as "Kenny." She further testified when they arrived at Mr. Mo's appliance shop, Mr. Mo stated they were coming to pick up some appliances that "Kenny" had purchased. Ms. Wright also saw a receipt at Mr. Mo's shop with appellant's name on it. Thus, we conclude that, even if the trial court erred in overruling appellant's objection, this error would not affect appellant's substantial rights. See TEX. R. APP. P. 44.2(b). We overrule appellant's fourth issue.