ACCEPTED 07-15-00094-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 8/4/2015 3:53:29 PM Vivian Long, Clerk
ORAL ARGUMENT REQUESTED
IN THE COURT OF APPEALS FILED IN 7th COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXASAMARILLO, TEXAS AT AMARILLO 8/4/2015 3:53:29 PM VIVIAN LONG NO. 07-15-00094-CR CLERK
KRISTOPHER DONALD MIXON Appellant, V. THE STATE OF TEXAS Appellee. ________________________
APPEAL FROM THE 251ST DISTRICT COURT RANDALL COUNTY, TEXAS __________________________
BRIEF FOR THE STATE OF TEXAS __________________________
JAMES A. FARREN CRIMINAL DISTRICT ATTORNEY RANDALL COUNTY, TEXAS
WARREN L. CLARK SBN 04300500 APPELLATE CHIEF ASST. CRIMINAL DIST. ATTORNEY Randall County Justice Center 2309 Russell Long Blvd., Ste. 120 Canyon, Texas 79015 clarkwl3@gmail.com wclark@randallcounty.org 806/468-5570 806/468-5566 (fax)
ATTORNEYS FOR THE STATE TABLE OF CONTENTS
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATE’S COUNTERPOINTS
COUNTERPOINT NO. 1
THE TRIAL COURT DID NOT ERR IN SUBMITTING A SUPPLEMENTAL JURY CHARGE TO THE JURY AFTER IT DECLARED ITSELF UNABLE TO REACH A UNANIMOUS VERDICT.
COUNTERPOINT NO. 2
THE EVIDENCE IS LEGALLY SUFFICIENT TO PROVE THAT APPELLANT KNOWINGLY AND INTENTIONALLY POSSESSED METHAMPHETAMINE AND THE JURY’S VERDICT OF GUILT WAS A RATIONAL RESPONSE TO THIS EVIDENCE.
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
COUNTERPOINT NO. 1 RESTATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
COUNTERPOINT NO. 2 RESTATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ii CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
iii INDEX OF AUTHORITIES
CASES PAGE
Ball v. State, No. 02-06-00268-CR (Tex.App.-Fort Worth 2007) (not designated for publication) . . . . . . . . . 17
Barnett v. State, 189 S.W.3d 272 (Tex.Crim.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Bekendam v. State, 441 S.W.3d 295 (Tex.Crim.App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Bell v. State, 938 S.W.2d 35 (Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Bledsoe v. State, 21 S.w. 615 (Tex.App.-Tyler 2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Brown v. State, 270 S.W.3d 564 (Tex.Crim.App. 2008) cert. denied, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009) . . . . . . . . . . . . . . . 20
Brown v. State, 911 S.W.2d 744 (Tex.Crim.App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Chase v. State, 448 S.W.3d 6 (Tex.Crim.App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Clark v. State, 365 S.W.3d 333 (Tex.Crim.App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,14
Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Conner v. State, 67 S.W.3d 192 (Tex.Crim.App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iv Davis v. State, 709 S.W.2d 288 (Tex.App.-Corpus Christi 1986, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . . . . 13
Delijevic v. State, 323 S.W.3d 606 (Tex.App.-Amarillo 2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,14
DeLuna v. State, 711 S.W.2d 44 (Tex.Crim.App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Dewberry v. State, 4 S.W.3d 735 (Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Evans v. State, 202 S.W.3d 158 (Tex.Crim.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Freeman v. State, 115 S.W.3d 183 (Tex.App.-Texarkana 2003, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . 12-13,15
Gear v. State, 340 S.W.3d 743 (Tex.Crim.App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Guidry v. State, 9 S.W.3d 133 (Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Hernandez v. State, 538 S.W.2d 127 (Tex.Crim.App. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Holmon v. State, 474 S.W.2d 247 (Tex.Crim.App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Howard v. State, 941 S.W.2d 102 (Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12,16
v Hurtado v. State, 881 S.W.2d 738 (Tex.App.-Houston [1st Dist.] 1994, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . 23
James v. State, 264 S.W.3d 215 (Tex.App.-Houston [1st Dist.] 2008, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . 24
Jones v. State, 986 S.W.2d 358 (Tex.App.-Beaumont 1999, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Joseph v. State, 987 S.W.2d 374 (Tex.Crim.App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22
King v. State, 895 S.W.2d 701 (Tex.Crim.App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Lowenfield v. Phelps, 484 U.S. 231 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Lane v. State, 909 S.W.2d 930 (Tex.App.-El Paso 1995, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Love v. State, 909 S.W.2d 930 (Tex.App.-El Paso 1995, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Narvaiz v. State, 840 S.W.2d 415 (Tex.Crim.App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Poindexter v. State, 153 S.W.3d 402 (Tex.Crim.App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24
Porter v. State, 873 S.W.2d 729 (Tex.App.-Dallas 1994, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Potter v. State, 481 S.W.2d 101 (Tex.Crim.App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
vi Stanton v. State, 535 S.W.2d 182 (Tex.Crim.App. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Swearingen v. State, 101 S.W.3d 89 (Tex.Crim.App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,21
Temple v. State, 390 S.W.3d 341 (Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,24
Triplett v. State, 292 S.W.3d 205 (Tex.App.-Amarillo 2009, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Turro v. State, 867 S.W.2d 43 (Tex.Crim.App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
West v. State, 121 S.W.3d 95 (Tex.App.-Fort Worth 2003, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . . . . 12,15
STATUTES, CODES, SECONDARY SOURCES
U.S. Const., amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. Const., Art. V, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. Code Crim. Proc. Art. 36.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Texas Code Crim. Proc. Art. 38.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Texas Penal Code § 32.21(a)(1)(B)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. R. App. P. 33.1(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,13,14
Tex. R. App. P. 38.1(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex. R. Evid. 103 (a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
vii Texas Health & Safety Code Ann. § 481.115(d) . . . . . . . . . . . . . . . . . . . . . . . . . 21
viii IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
NO. 07-15-00094-CR
___________________________________________
KRISTOPHER DONALD MIXON Appellant, V. THE STATE OF TEXAS Appellee.
__________________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS in the above-styled and numbered
cause and files this its brief in response to the brief of Appellant, KRISTOPHER
DONALD MIXON, wherein Appellant appeals from a conviction for Possession of
a Controlled Substance > 4 Grams < 200 Grams in the 251st District Court, Randall
County, Texas, the Honorable Ana Estevez, presiding judge.
1 STATEMENT OF THE CASE
On June 11, 2014, Appellant was indicted by the Randall County Grand Jury
for the felony offense of possession of a controlled substance in an amount over four
but under 200 grams. (C.R. 1: 19) Jury selection and trial commenced on October 20,
2014 and concluded the next day. The jury found Appellant guilty of the offense as
charged in the indictment, (C.R. 1:96,114-116; R.R. 3:148) Having opted for the trial
court to assess punishment, Appellant requested the preparation of a pre-sentence
investigation after the conclusion of the punishment hearing. Accordingly, one was
prepared and provided to the sentencing court and counsel for Appellant and the
State. On December 16, 2014, the court re-convened the sentencing hearing where
it received additional evidence. After both sides rested, the trial court formally
imposed a sentence of eight (8) years confinement in the Texas Department of
Criminal Justice, Institutional Division. (C.R. 1:114; R.R. 4:70)
Appellant filed his motion for new trial on December 22, 2015, followed up by
an untimely amended motion for new trial on January 20, 2015. In any event, the
December 22, 2014 motion for new trial was overruled by operation of law on March
2, 2015. His notice of appeal was timely filed on March 9, 2015. (C.R. 1:136) The
required Certification of Defendant’s Right of Appeal was filed earlier on December
16, 2014 upon imposition of sentence. (C.R. 1:102)
2 All references to the indictment, official motions and the like are contained in
the Clerk’s Record and will be referred to as C.R. 1 with designation of appropriate
page or pages. All references to trial testimony or trial exhibits are contained in the
Reporter’s Record and will be referred to respectively as R.R. 3 or 4 (trial testimony)
or R.R. 5 (exhibit volume).
3 STATEMENT OF FACTS
In his effort to peddle the failed theory that he had been “set up” by his
present/former girlfriend Belinda Treadway, Appellant consciously elicited a legion
of her hearsay statements through the State’s primary witness, Officer Jarrod
Robertson, a twelve-year veteran of the Amarillo Police Department. Apart from an
APD officer who established the chain of custody for the 6.85 grams of
methamphetamine made the subject of the indictment and the chemist who attested
to the chemical contents of State’s Exhibit 19 (see R.R. 3: 105-06,108-09,123-26),
the elements of the offense and circumstances surrounding Appellant’s knowing and
intentional possession of the methamphetamine in question on November 4, 2012
were developed through the direct, cross-examination and re-direct examination of
Officer Robertson. Thus, the State’s case was streamlined considerably and this shall
aid the narrative’s flow.
Robertson, after being dispatched to 7002 Imperial in Amarillo, Texas in
reference to the 9-1-1 hang-up call, was met at the front door by Treadway. She self-
reported that she resided there with Appellant as his girlfreind. Appellant’s sister
owned the residence but only she and Appellant lived there. (R.R. 3:23-25) Upon
Robertson’s contact with Treadway, she immediately shared some “suspicions”
harbored about Appellant. Knowing that his dispatch had been initiated by
4 Treadway’s 9-1-1 hang-up call and now informed of Treadway’s disclosure about
these “suspicions” concerning Appellant, Robertson requested verbal consent from
both parties to search the residence. Each consented. (R.R. 3:27) Officer Robertson
also mentioned his desire to include the search of a detached building in the backyard
to the residence. Appellant gave his consent to Robertson for that search as well.
(R.R. 3:28) This consent was initially verbal (“Sure . . . yeah”) but was subsequently
reduced to writing. (R.R. 3:29,31; R.R. 5: State’s Exhibit 3).
Robertson conducted a search of the detached building first before he
commenced any search of the residence. Although Appellant had described the
structure as a garage, Robertson did not see any vehicles parked within; instead, it
appeared to serve as a workshop. (R.R. 3:28) Robertson later discovered another
building attached to the house which served as a garage. (R.R. 3:29) Upon
discovering the door leading into the detached building was locked, Robertson was
provided a key for entry by Appellant. (R.R. 3:32)
Upon entry into the detached structure, Robertson conducted a preliminary
search to determine if there were any other individuals inside. He testified that he did
so based on Treadway’s initial comments made when he first made contact with her.
No one else was inside the building. Once he determined that the detached structure
was unoccupied, he went back inside the residence to conduct a more extensive
5 search within. (R.R. 3:34-35)
However, before he could commence this search, Treadway brought Robertson
a white box which was filled with drug paraphernalia, consisting of various
hypodermic needles, pipes and spoons. (R.R. 3:35; R.R. 5: State’s Exhibits 4-7)
Among the paraphernalia was a baggie of crystalline substance which Robertson
believed to be methamphetamine. (R.R. 3:36; R.R. 5: State’s Exhibit 6) At this time,
Appellant had not been taken into custody or placed under arrest. (R.R. 3:37)
As Robertson rifled through the various drug-related objects in the white box,
he asked Appellant if he was a diabetic. Appellant denied such. Robertson also
asked Appellant what the substance contained in the baggie was. Appellant replied:
“Probably meth.” (R.R. 3:47-48) Robertson next began his sweep and search of the
bedrooms in the residence. He found drug paraphernalia in the northeast and
southeast bedrooms. Within this southeast bedroom, described by Robertson as more
along the line of an office, he came across a leather-like case on top of a bookcase
which contained several pieces of glassware and glass tubing. In the officer’s
opinion, these were customarily used for smoking methamphetamine. (R.R. 48-50;
R.R. 5:State’s Exhibits 8 & 9) Robertson also noted that there were security cameras
on the exterior of the residence with some cameras directed toward the front entrance
to the house. The southeast bedroom - the one which had all the appearances of an
6 office - served as the room set up to monitor the incoming feed from these security
cameras. (R.R. 3:52)
Following this residential search and after noting his observations, Robertson
then turned his attention to the detached building. He described the layout of the
structure, best illustrated by the photographs he took as depicted in State’s Exhibits
10-12. (R.R. 3:53-54; R.R. 5) He extended his search to the attic where he discovered
and seized additional paraphernalia. (R.R. 3:55) Continuing his search within the
shed, Robertson found a set of scales resting on a chair (State’s Exhibit 13), a black
digital scale resting on a table alongside a toolbox (State’s Exhibit 17) and a green
change purse (State’s Exhibits 15) (R.R. 3:57-59). Within the change purse,
Robertson found a large cellophane wrapper containing a substance which he
believed to be methamphetamine, subsequently confirmed by chemical analysis.
(State’s Exhibit 16). Further search of the workroom area turned up a drawer full of
additional glass pipes with some residue. (R.R. 3:58-59; R.R. 5:State’s Exhibit 18).
After Robertson had amassed the items seized during his consensual search
throughout the house and workroom - the box of drug paraphernalia, the baggie of
crystalline substance suspected of containing methamphetamine and multiple pieces
of glassware specifically designed for drug use - he placed Appellant under arrest and
took him into custody. (R.R. 3:62-63) Appellant later agreed to an oral interview in
7 which he made several admissions concerning methamphetamine use, albeit shifting
blame onto Treadway (i.e., “we both use,” “. . . it’s not all me. . . she is trying to
blame me for everything.”) (R.R. 5:State’s Exhibit 20 [DVD]) (emphasis added) The
DVD was played in its entirety for the benefit of the jury. (R.R. 3:69)
Whereas Appellant’s cross-examination of Robertson focused primarily on
Treadway’s drug use and ready access to all areas of the house, concession was made
that Appellant was the “primary resident” of the residence at 7002 Imperial. (R.R.
3:74) And while Robertson acknowledged that Treadway’s behavior at that time was
consistent with someone who was “tweaking” (acting paranoid, shaking, exhibiting
pressurized speech and obvious signs of fatigue from lack of sleep, most likely
brought on from methamphetamine deprivation), he also conceded that Appellant did
not show similar symptoms. (R.R. 3:83-84) While Treadway had “assisted”
Robertson in his search, the officer pointed out that she did not tell him that there
were drugs in the workroom; nor did she direct him to the location where these drugs
were found. (R.R. 3:92-93) Robertson acknowledged that both Appellant and
Treadway admitted to methamphetamine use and that she too had been charged with
felony possession of methamphetamine arising out of the events at 7002 Imperial.
(R.R. 3:84,98,117-18; R.R. 5:Defendant’s Exhibits 1 & 2)
8 COUNTERPOINT NO. 1 RESTATED
THE TRIAL COURT DID NOT ERR IN SUBMITTING A SUPPLEMENTAL JURY CHARGE TO THE JURY AFTER IT DECLARED ITSELF UNABLE TO REACH A UNANIMOUS VERDICT.
STATEMENT OF FACTS
The State adopts and incorporates herein by reference for all purposes the facts
previously set out in the “Statement of Facts” section of this brief at pages 4-8.
SUMMARY OF THE ARGUMENT
In a multifarious point of error, Appellant claims that the trial court committed
reversible error in providing the jury with an Allen charge after notice that it was
deadlocked. To bolster this claim of error, he argues that the Allen charge deprived
him of a fair and impartial trial as guaranteed by the Sixth Amendment to the United
States Constitution and Article V, Section 10 of the Texas Constitution. Lastly, he
proposes that the proper standard for evaluating harm is Almanza charge error. The
State shall treat these three sub-issues under a single counterpoint.
As shall be demonstrated below, the trial court was well within its discretion
when it provided the jury with a non-coercive Allen charge. Insofar as any Sixth
Amendment or state constitutional deprivation which might have arisen from
implementation of the Allen charge, Appellant failed to preserve these complaints on
9 appeal because they do not comport with the objection he made at trial. He has
likewise wholly failed to adequately argue and brief this sub-issue pertaining to these
alleged constitutional violations and as a result, nothing is presented for review.
Finally, the suggestion that harm is gauged by application of Almanza charge error
analysis is incorrect. Established law holds that the trial court’s submission of an
Allen supplemental charge is evaluated under the traditional abuse of discretion
standard as opposed to an Almanza review.
ARGUMENT
I.
The law on error preservation and waiver
As an initial matter, this Court must decide if Appellant has preserved error.
The basic principle of error preservation holds that the complaining party must let the
trial judge know what he wants and why he thinks he is entitled to it. He must do so
clearly enough for the judge to understand and at a time when the trial judge is in a
position to do something about it. Chase v. State, 448 S.W.3d 6, 11 (Tex.Crim.App.
2014); Bekendam v. State, 441 S.W.3d 295, 300 (Tex.Crim.App. 2014).
To preserve error, the party must make the trial court aware of the grounds for
the motion or objection. A timely objection must be made that states the grounds
“with sufficient specificity to make the trial court aware of the complaint, unless the
10 specific grounds were apparent from the context[.]” TEX. R. APP. P. 33.1(a)(1)(A);
see also TEX. R. EVID. 103(a)(1)(B). Constitutional errors can be forfeited if a party
fails to properly object. Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012).
The two main purposes of requiring a specific objection are to inform the trial judge
of the basis of the objection so that he has an opportunity to rule and to allow
opposing counsel to remedy the error, should there be one. Id. Appellate courts may
not reverse a trial court’s ruling on any theory or basis that might have been
applicable to the case but was not raised. Id. at 336.
As a final matter pertaining to preservation, the appealing party is required to
include “clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” See TEX. R. APP. P. 38.1(i); Delijevic v.
State, 323 S.W.3d 606, 608 (Tex.App.-Amarillo 2010, no pet.) Failure to cite to
authority and present argument constitutes inadequate briefing and presents nothing
for review. Id.
II.
The law on jury deliberations and Allen charges
The decision regarding whether to require a jury to continue deliberating lies
within the sound discretion of the trial court. See TEX. CODE CRIM. PROC. art.
36.11; Guidry v. State, 9 S.W.3d 133, 155 (Tex.Crim.App. 1999); Howard v. State,
11 941 S.W.2d 102, 121 (Tex.Crim.App. 1996); Bell v. State, 938 S.W.2d 35, 56
(Tex.Crim.App. 1996); DeLuna v. State, 711 S.W.2d 44, 48 (Tex.Crim.App. 1986).
The trial court is not obligated to declare a mistrial at the first sign of jury impasse.
See Howard, 941 S.W.2d at 121.
An Allen charge is a supplemental charge sometimes given to a jury that
declares itself deadlocked. Barnett v. State, 189 S.W.3d 272, 277 n. 13
(Tex.Crim.App. 2006). It reminds the jury that if it is unable to reach a verdict, a
mistrial will result, the case will still be pending and there is no guarantee that a
second jury would find the issues any easier to resolve. Id. Such a charge is
permissible in Texas courts. Nevertheless, trial courts are cautioned that it must word
and administer this supplemental charge in a non-coercive manner. Id.; also see
Howard, 941 S.W.2d at 102, 123-24. An Allen charge is unduly coercive and
improper only if it pressures jurors into reaching a particular verdict or conveys the
court’s opinion of the case. West v. State, 121 S.W.3d 95, 108–09 (Tex.App.-Fort
Worth 2003, pet. ref’d.).
When reviewing an Allen charge, the “primary inquiry” is to determine the
charge’s “coercive effect on juror deliberations ‘in its context and under all
circumstances.’” Howard, 941 S.W.2d at 123 (quoting Lowenfield v. Phelps. 484 U.S.
231, 237, 108 S.Ct. 546, 550 (1988)); Freeman v. State, 115 S.W.3d 183, 186-87
12 (Tex.App.-Texarkana 2003, pet. ref’d.). A charge that speaks to the jury as a whole,
instead of specifically addressing a minority of the jurors, and which encourages
jurors to re-examine their views or change their opinions without “surrendering
honest convictions” is not coercive on its face. Freeman, 115 S.W.3d at 187. If the
Allen charge is not coercive on its face, an appellant has the burden to show that jury
misconduct occurred in fact. Bledsoe v. State, 21 S.W.3d 615, 623 (Tex.App.-Tyler
2000, no pet.); Love v. State, 909 S.W.2d 930, 936 (Tex.App.-El Paso 1995, pet.
ref’d.); Davis v. State, 709 S.W.2d 288, 291 (Tex.App.-Corpus Christi 1986, pet.
ref’d.).
Application of law to the facts
Constitutional claim not preserved; inadequate briefing
As a preliminary matter, Appellant failed to preserve any constitutional
objection to the subject supplemental charge. His perfunctory objection to the Allen
charge (“ . . . I just need to object . . . I will object . . .” (see R.R. 3:145)) did not
include any reference to either the United States or Texas Constitution. Moreover,
the content of this constitutional complaint is not apparent from the actual objection
made at trial. For that matter, Appellant’s general objection arguably failed to meet
even the minimal requirement of TEX. R. APP. P. 33.1(a)(1)(A). Thus, this Sixth
13 Amendment challenge, related state constitutional objections and argument included
within his brief do not comport with Appellant’s objection at trial. As a result, his
general objection has not been preserved for review. TEX. R. APP. P. 33.1(a); Clark
v. State, 335 S.W.3d at 336, 339. Parenthetically, Appellant’s utter failure to cite to
any relevant case law or otherwise include any substantive argument in support of his
constitutional claims constitutes inadequate briefing which ultimately presents
nothing for review. Delijevic v. State, 323 S.W.3d at 608. And even if Appellant has
preserved error, the trial court was well within its discretion when it gave the Allen
charge as will be demonstrated below.
Supplemental charge was proper and non-coercive
In this case, the jury retired to deliberate on the issue of guilt-innocence at
10:38 a.m. At 2:05 p.m., the trial court received a note indicating that the jury could
not reach a decision. At this juncture, the trial court announced to both counsel for
Appellant and the State that it would prefer to bring the jury into open court and read
the Allen charge before sending it back in for further deliberations. The trial court
then read the entirety of its proposed Allen charge to the lawyers and entertained
objections from either side. (R.R. 3:143-45) Overruling Appellant’s non-specific
objection, the trial court then brought the jury into open court, read the Allen charge
and instructed it to continue its deliberations. (R.R. 3:145-47) The jury was provided
14 with a copy of the supplemental charge after its recitation in open court. (See C.R.
1:97-98) The jury returned with its guilty verdict at 3:26 p.m. (R.R. 3:147)
As noted by Appellant, the Allen charge given to the jury “essentially conforms
to those routinely given in courts across this State and which have in large part left
undisturbed by appellate courts.” (Appellant’s Brief at p. 13). This is no insignificant
concession. Indeed, its language addressed the jury as a whole and did not single out
any specific juror or jurors. It simply encouraged the jury to reach a verdict and asked
the jurors to re-examine their views of the evidence and accompanying opinions. A
trial court may properly encourage jurors to re-examine their own views and, while
not surrendering their honest convictions, to change their opinions if convinced from
the evidence that they are erroneous. accord Jones v. State, 986 S.W.2d 358, 362
(Tex.App.-Beaumont 1999, pet. ref’d.). An instruction that a mistrial would have to
be declared is not, of itself, coercive. Stanton v. State, 535 S.W.2d 182, 183
(Tex.Crim.App. 1976). Close examination of the instant Allen charge demonstrates
that it is identical to the ones given in West v. State, 121 S.W.3d at 109 and Freeman
v. State, 115 S.W.3d at 187, both of which were held to be non-coercive. Simply put,
nothing in the instruction itself was coercive. West at 109. The supplemental
instruction passes muster.
Further, since the reviewing court must examine the propriety of the Allen
15 charge under all of the existing circumstances existing at the time, it is right and
proper to consider the actual amount of time that the jury had been in deliberations
as contrasted with the time it took to present the case. The jury had been deliberating
for under four hours prior to receipt of the foreman’s note indicating deadlock. The
State’s case-in-chief had progressed over a two-day period. Confining a jury’s
deliberations to a mere four hours or so under these circumstances was an option that
the trial court was wise to reject, opting instead to encourage the jury to resolve its
differences without doing violence to each juror’s conscience.
Taking this examination “of all circumstances” one step further, this Court and
the parties are in no position to determine exactly how much time within this time
frame had been taken up with actual deliberations as opposed to periods of inactivity
due to breaks or lunch. Just as the time a jury deliberates rests upon the sound
discretion of the trial court, it was likewise not obligated to declare a mistrial at the
first sign of an impasse. Howard, 941 S.W.2d at 121. And contrary to Appellant’s
heated assertions that the jury was “unequivocally” deadlocked with little reason to
believe the it had not yet had time to consider all of the evidence before announcing
its deadlocked status, the record does not bear this out. Appellant reads too much into
the note actually tendered to the trial judge. It was in a superior position to determine
whether additional deliberations were in order, particularly since the note did not
16 indicate that the jurors believed that a verdict could not be reached.
Indeed, given the time differential here, the trial court’s decision to give the
Allen charge was eminently reasonable, particularly when compared to what has
occurred under very similar circumstances. See, e.g., Potter v. State, 481 S.W.2d 101,
106 (Tex.Crim.App. 1972) (providing Allen charge after four hours of deliberations
not error); cf. Holmon v. State, 474 S.W.2d 247, 249 (Tex.Crim.App. 1972)
(concluding eight hours of deliberations following one-hour punishment hearing not
excessive and did not result in coerced verdict). The propriety of the instant
supplemental instruction is additionally enhanced when contrasted with an Allen
charge provided under similar circumstances which specifically addressed those jurors
in the minority, urging them to listen “with a disposition to being convinced to the
arguments of the other jurors . . . [and] consider whether they [minority jurors] are
basing their opinions on speculation or guesswork, and not on the evidence in the
case.” There, the reviewing court held that the particular instruction in question was
not improperly coercive since it did not tell the jury that either side possessed superior
knowledge and that the jury should try to reach “a verdict acceptable to all jurors only
if it could do so ‘without doing violence to your conscience.’” Ball v. State, No. 02-
06-00268-CR *11 (Tex.App.-Fort Worth 2007) (not designated for publication).
Given that the supplemental charge in question is non-coercive on its face,
17 Appellant has the burden to show that jury coercion actually occurred. In this, he has
presented no evidence of coercion caused by the combined effect of the Allen charge
and receipt of a guilty verdict a little more than an hour later. He simply speculates
that the combined effect of the two circumstances created coercion. Although he was
provided the opportunity to explore this issue, he failed to develop a sufficient record
through his motion for new trial. In the absence of any evidence of coercion, it cannot
be concluded that the trial court abused its discretion by its presentation of the Allen
charge to the jury under these specific circumstances.
Appellant’s point of error is without merit and should be overruled.
COUNTERPOINT NO. 2 RESTATED
THE EVIDENCE IS LEGALLY SUFFICIENT TO PROVE THAT APPELLANT KNOWINGLY AND INTENTIONALLY POSSESSED METHAMPHETAMINE AND THE JURY’S VERDICT OF GUILT WAS A RATIONAL RESPONSE TO THIS EVIDENCE.
The State adopts and incorporates herein by reference for all purposes the facts
previously set out in the “Statement of Facts” section of this brief at pages 4-8.
Appellant contends that the evidence is legally insufficient because the record
presents a mere “collection of potential linking factors” that serve only to raise
18 suspicion but which are inadequate, on their own, to provide the necessary “links”
between Appellant and the methamphetamine. (Appellant’s Brief at p. 22) Further,
Appellant emphasizes the absence of various affirmative links as constituting
probative force leading to the conclusion that there is, in fact, insufficient evidence to
support the conviction. (See Appellant’s Brief at 21-22) This argument is not
consistent with current jurisprudence since it employs the discredited “divide and
conquer” analytic construct in an effort to demonstrate that there is insufficient
evidence in support of the verdict.
A dispassionate, thorough review of all of the evidence demonstrates that the
State proved up the requisite affirmative links -- his joint possession and access to all
areas inside the residence and workroom in question, including the key to the detached
shed; the existence of several items of drug paraphernalia in and around all of the
common areas under Appellant’s dominion, access, management and control; his
immediate acknowledgment that the plastic baggie found in the workroom contained
methamphetamine; his admission to recent methamphetamine use; his disavowal of
any medical condition which would require the administration of injectable drugs with
a syringe; his failure to provide an innocent explanation for the existence of multiple
syringes when given the opportunity; the presence of multiple security camera
throughout the residence and his attempts at blame-shifting onto the shoulders of
19 Treadway -- which, when combined with a juror’s permissible inferences derived from
the wealth of circumstantial evidence suggesting intentional and knowing possession,
succinctly establish legally sufficient evidence to support the jury’s verdict of guilt.
Standard of review
When conducting a legal sufficiency review, the reviewing court must view the
evidence in the light most favorable to the verdict to determine whether a rational
finder of fact could have found each element of the offense beyond a reasonable doubt.
Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67
S.W.3d 192, 197 (Tex.Crim.App. 2001). It is not the State’s burden to exclude every
conceivable alternative to a defendant’s guilt. Temple v. State, 390 S.W.3d 341, 363
(Tex.Crim.App. 2013); see also Laster v. State, 275 S.W.3d 512, 520-21, 522-23
(Tex.Crim.App. 2009) (reiterating rejection of reasonable hypothesis analytical
construct); Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993) (explaining that
“evidence is not rendered insufficient because appellant presented a different version
of the events.”)
The trier of fact is the sole judge of the weight and credibility of the witnesses
and evidence. Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App. 2008), cert.
denied, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009); Tex.Code Crim. Proc. art. 38.04.
20 An appellate court is not free to substitute its judgment for that of the fact-finder nor
may it re-evaluate the weight or credibility of evidence in the record. Dewberry v.
State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Simply put, the appellate court
determines whether the necessary inferences are reasonable based upon the combined
and cumulative force of all of the evidence when viewed in that light most favorable
to the jury’s determination. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.
2007). If, based on all of the evidence, a reasonably-minded jury must necessarily
entertain a reasonable doubt of an accused’s guilt, due process requires that the
appeals court reverse and order a judgment of acquittal. Swearingen, supra at 95;
Narvaiz v. State, 840 S.W.3d 415, 423 (Tex.Crim.App. 1992). (emphasis added)
The Law on Affirmative Links and Possession of Controlled Substance
In order to convict Appellant of the indicted charge of possession of
methamphetamine, the State had to prove that 1) Appellant, 2) intentionally and
knowingly, 3) possessed, 4) methamphetamine 5) of four grams or more but less than
two hundred grams. TEX. HEALTH & SAFETY CODE § 481.115(d)
In order to establish the unlawful possession of a controlled substance, the State
must prove the accused: 1) exercised care, control and management over the
contraband and 2) knew that the matter possessed was contraband. Joseph v. State, 897
21 S.W.2d 374, 376 (Tex.Crim.App. 1995); King v. State, 895 S.W.2d 701, 703
(Tex.Crim.App. 1995). If the accused is not in exclusive possession of the contraband,
the State must affirmatively link him or her to that contraband. Brown v. State, 911
S.W.2d 744, 748 (Tex.Crim.App. 1995). An affirmative link is a “shorthand
expression of what must be proven to establish that a person possessed some kind of
drug ‘knowingly or intentionally.’” Id. at 747. The establishment of an affirmative
link may be through either direct or circumstantial evidence. Id.
When determining if the State has established the necessary affirmative links
between the defendant and the contraband, the appellate courts may consider the
following, non-exclusive factors: 1) whether the drugs were in plain view; 2) whether
the defendant was present when the drugs were found; 3) whether the defendant
owned or had the right to possess the location or habitation where the drugs were
found; 4) whether the drugs were conveniently accessible to the defendant; 5) the
amount of drugs found; 6) the location, quantity and variety of paraphernalia or other
items associated with the drug trade found in proximity to the contraband; 7) whether
a strong residual odor from the drugs was present; 8) whether the physical condition
of the defendant indicated a recent consumption of the drug in question; 9) whether
any furtive gestures were made by the defendant if apprehended at the time the drugs
were discovered and seized; 10) whether the defendant had any special connection to
22 the drug; 11) whether the place where the drugs were found was enclosed; 12) whether
the defendant was found near or in close proximity to the drug; 13) whether the
occupants of the premises gave any conflicting statements about relevant matters; 14)
whether there were affirmative statements to connect the defendant to the contraband;
15) whether the defendant possessed weapons; 16) whether the defendant possessed
a large amount of cash and 17) whether the defendant’s conduct indicated a
consciousness of guilt. Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006);
Poindexter v. State, 153 S.W.3d 402, 412 (Tex.Crim.App. 2005).
In deciding whether evidence is sufficient to link the defendant to the
contraband, each case must be examined on its own facts. Hurtado v. State, 881
S.W.2d 738, 743 (Tex.App.-Houston [1st Dist.] 1994, pet. ref’d.). There is no
established formula that dictates a finding of an affirmative link sufficient to support
an inference that the defendant knowingly possessed the contraband. Porter v. State,
873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref’d.). It is not the number of
affirmative links present (or the number of those that are not present) but rather the
logical force of the links which is relevant in a sufficiency analysis. Evans v. State,
202 S.W.3d at 161-62. The absence of various affirmative links does not constitute
evidence of innocence to be weighed against the affirmative links that are present in
a legal review. Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App. 1976);
23 James v. State, 264 S.W.3d 215, 219 (Tex.App.-Houston [1st Dist.] 2008, pet. ref’d.).
In other words, the reviewing court will not engage in a “divide and conquer” analysis.
When determining whether the evidence affirmatively links the defendant to the
contraband, the trier of fact is the exclusive judge of the credibility of the witnesses
and the weight, if any, to be given to any part of their testimony. Poindexter v. State,
153 S.W.3d at 406.
Application of law to these facts
Appellant’s suggestion that his eight “non-exclusive indicators of a link to
Appellant,” when weighed against those which he concedes connects him to the
methamphetamine, renders the evidence legally insufficient to sustain the jury’s
verdict of guilt is yet one more attempt at the discredited “divide and conquer”
analytic construct which has been soundly rejected by the Court of Criminal Appeals.
See Temple v. State, 390 S.W.3d at 363. Instead, each case must be examined on its
own unique set of facts and cannot be subjected to any formula which weighs and
contrasts the absence of various affirmative links against those which are present.
There are an array of indicators and factors to be considered by the reviewing court,
just as was done by the jury. Among the Poindexter indicators summarized above, the
finder of fact is also entitled to consider, inter alia, motive, circumstantial evidence
and incredible or implausible statements of the accused when drawing inferences of
24 guilt from all circumstances. See Gear v. State, 340 S.W.3d 743 (Tex.Crim.App.
2011); Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007). With these principles
in mind, review of the evidence reveals a wealth of evidence which the jury reasonably
relied upon to return a rational verdict of guilt.
The fatal flaw to Appellant’s sufficiency review is that it assumes the State was
required to prove up his exclusive possession of the methamphetamine in order to
secure a verdict of guilt. However, the prosecution made it clear that its burden rested
on presenting sufficient evidence that he “exercised care, custody, control or
management [over the methamphetamine], either alone or with someone else.” (R.R.
3:135) This was a correct statement of the law to which Appellant voiced no
objection. The jury could have rationally concluded that Appellant’s control,
management and custody of the methamphetamine was exercised either exclusively
or jointly with Treadway in view of the compelling circumstantial evidence it had at
disposal.
For example, his knowledge of the presence of methamphetamine in the house
and shed was never in serious dispute. It was his house and his shed, regardless of the
fact that his sister owned the title to the property. The defense never seriously
contested this fact, even eliciting the concession through cross-examination of
Robertson that Appellant was the “primary resident.” (R.R. 3:74) Further, his multiple
25 admissions concerning his familiarity with and recent use of methamphetamine
explained why the house and shed would be littered with drug paraphernalia. And this
drug paraphernalia was not limited to an odd pipe or two; Officer Robertson’s haul of
evidence included several syringes, digital scales and multiple sets of glassware
commonly used in methamphetamine consumption. Appellant’s denial that he was a
diabetic dispelled any possible innocent explanation behind the presence of this
damning evidence.
The fact that Exhibit 19, the actual methamphetamine contained in the cloth
bag, was found in the locked detached shed was significant. In this vein, recall that
Appellant provided the key to the shed once Robertson requested entry into the area
and there was no evidence that anyone else in the house, including Treadway, had
knowledge or access to this key. Moreover, nothing in the shed was ever associated
with Treadway. Indeed, by giving deference to Robertson’s testimony (as the jury was
entitled to), it showed that the shed was in actuality a workroom, full of tools and
various articles (such as Appellant’s IPad located uncomfortably near a collection of
glass pipes with residue) clearly connected to a male. The discovery of additional
paraphernalia in the shed’s attic only added to this wealth of circumstances pointing
directly to Appellant’s custody and management of the shed and knowledge of its
contents.
26 Appellant fails to address the relevance of the security camera system operating
at the residence. Although one can envision a homeowner’s legitimate concern for
safety and preservation of property, the fact that the southeast bedroom had been
converted an area for monitoring the video input from the various security cameras,
coupled with the discovery of yet additional paraphernalia on top of a bookcase within
that room, made for compelling evidence of knowledge on Appellant’s part that
methamphetamine was an integral ingredient to the experience of daily existence in
this residence.
The jury was fully entitled to consider Appellant’s contradictory and
implausible statements after he was placed under arrest. Rather than give an honest
or innocent explanation to his acknowledgment that the green bag contained
methamphetamine, Appellant simply affirmed that both he and Treadway used the
drug. Whereas his initial admission to the use of methamphetamine was couched in
terms of “years ago,” the longer he spoke with Robertson, the more recent his
admissions of use became. And nowhere did Appellant provide any plausible
explanation for the presence of multiple syringes or the vast number of glassware
objects. Given the full opportunity to disavow any connection to the drugs,
paraphernalia, glassware or digital scales, the best response Appellant could muster
was one which shifted the bulk of blame over to Treadway. Again, the jury was
27 entitled to consider these responses as wholly unsatisfactory when considering
Appellant’s defense that he had been set up by a “scorned woman.” At the very least,
his admissions established joint knowledge and possession of the methamphetamine
in question, never mind the persuasive evidence linking Appellant solely to the scales,
glassware, pipes and methamphetamine found inside his shed.
The logical force of all of these indicators - his status as the “primary resident”
of 7002 Imperial; his actual knowledge that the substance inside the cloth pouch was
methamphetamine; his possession the key which provided access to the locked shed;
the abundance of various items of drug paraphernalia littered about the residence; the
sheer number of glassware items, commonly used to smoke methamphetamine, found
in the bedroom converted into a monitoring area for the security camera system which
Appellant set up; Appellant’s disavowal that he was diabetic which could have
explained all those syringes contained in box proffered by Treadway; the discovery
of drug paraphernalia in the enclosed attic in the shed; Appellant’s utter failure to
profess ignorance of drugs, paraphernalia, syringes, pipes and scales; his multiple
admissions to drug use - presented the jury with a buffet of evidentiary indications
proving beyond any reasonable doubt his intentional and knowing possession of the
6.9 grams of methamphetamine found with the shed/workroom.
Appellant seems to suggest that the lack of direct evidence linking Appellant
28 to the various items catalogued above amounts only to proof which raises “strong
suspicion or mere probability” to show that Appellant had knowledge and control over
the methamphetamine. If this really was applicable law, then arguably the only way
the State could ever sustain its burden of proof under similar circumstances would be
to secure a cinematic reproduction of the crime where each element is revealed frame
by frame. Yet the State is not required to rely exclusively on direct proof which must
exclude reasonable alternatives to the issue of guilt. In this case, the jury was
correctly charged and the prosecutor correctly argued that the evidence supported
Appellant’s guilt under either exclusive or joint possession. Its verdict is reasonable
when viewed from its determination of guilt derived from the combined and
cumulative force of all of the evidence. accord Triplett v. State, 292 S.W.3d 205, 210
(Tex.App.-Amarillo 2009, pet. ref’d.) (holding that, among other factors, defendant’s
1) presence, 2) proximity to a lot of drug paraphernalia and 3) occupancy within an
enclosed space where the drugs and paraphernalia found was legally sufficient to
support the jury’s implied finding that he exercised actual care, custody, control or
management of the controlled substance and that he knew the matter possessed was
contraband).
PRAYER
WHEREFORE, the State prays that Appellant’s conviction for Possession of
29 a Controlled Substance > 4 grams < 200 grams be affirmed in all things.
Respectfully submitted,
JAMES A. FARREN CRIMINAL DISTRICT ATTORNEY RANDALL COUNTY, TEXAS
s/ Warren L. Clark WARREN L. CLARK APPELLATE CHIEF SBN 04300500 ASST. CRIM. DISTRICT ATTY. RANDALL CO. JUSTICE CENTER 2309 Russell Long Blvd., Ste. 120 Canyon, Texas 79015 806/468-5570 806/468-5566 (fax)
CERTIFICATE OF COMPLIANCE
I hereby certify that the true and correct word count to the foregoing State’s Brief is 7,205 words. The brief was prepared with WordPerfect software in 14 point font.
s/ Warren L. Clark Warren L. Clark
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing State’s Brief was provided to James B. Johnston, Attorney for Appellant (KRISTOPHER DONALD MIXON), P.O. Box 273, Hereford, Texas 79045, on this the 4th day of August, 2015