PD-1598-15 PD-1598-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/11/2015 10:16:52 AM Accepted 12/11/2015 12:47:11 PM ABEL ACOSTA NO. __________ CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________________________________
KRISTOPHER DONALD MIXON
Petitioner
v.
THE STATE OF TEXAS
Petition in Cause No. 23,963-C from the 251st Judicial District Court of Randall County, Texas and Case No. 07-15-00094-CR in the Court of Appeals for the Seventh Supreme Judicial District of Texas
___________________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
JAMES B. JOHNSTON EASTERWOOD, BOYD & SIMMONS, PC P. O. Box 273 Hereford, Texas 79045 (806) 364-6801 (806) 364-2526 – telefax Email: bryan@ebs-law.net State Bar No: 10838200 ATTORNEY FOR PETITIONER, December 11, 2015 KRISTOPHER DONALD MIXON
1 NAME OF ALL PARTIES TO THE TRIAL COURT’S FINAL JUDGMENT
Below is a complete list of the identity of the judge and all parties to the trial court’s judgment, and all trial and appellate counsel:
1. Hon. Ana Estevez, Trial Court Judge 251st Judicial District Court – Randall County 2309 Russell Long Blvd. Canyon, Texas 79015
2. Petitioner, KRISTOPHER DONALD MIXON 7407 Dreyfuss Amarillo, Texas 79121
3. Petitioner’s Trial Counsel Lynda Smith Attorney at Law 3611 Soncy Road, Suite 4C Amarillo, Texas 79119
4. Petitioner’s Appellate Counsel James B. Johnston EASTERWOOD, BOYD & SIMMONS, PC P.O. Box 273 Hereford, Texas 79045
5. Trial Counsel for the State of Texas Charles D. Blount Randall County District Attorney’s Office 2309 Russell Long Blvd., Ste. 120 Canyon, Texas 79015
2 6. Appellate Counsel for the State of Texas Warren L. Clark Randall County District Attorney’s Office 2309 Russell Long Blvd., Ste. 120 Canyon, Texas 79015
3 TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES AND COUNSEL .............................................. 2 TABLE OF CONTENTS ........................................................................................... 4 INDEX OF AUTHORITIES ...................................................................................... 5 STATEMENT REGARDING ORAL ARGUMENT ................................................ 7 STATEMENT OF THE CASE .................................................................................. 8 STATEMENT OF PROCEDURAL HISTORY ........................................................ 9 GROUNDS FOR REVIEW ..................................................................................... 10
1. When reviewing the issue of forfeiture of the constitutional due process right to an uncoerced jury verdict, the court of appeals must first categorize the alleged error as either absolute, waivaible by affirmative action, or waivable by inaction. To summarily overrule the complaint because of the absence of a specific objection constitutes error in the court of appeals analysis.
2. The due process right to an uncoerced jury verdict falls under the category of absolute Constitutional rights.
3. Any language in a supplemental Allen jury charge which implies the obligation of the defendant to provide proof beyond a reasonable doubt is coercive.
ARGUMENT ........................................................................................................... 10 PRAYER FOR RELIEF ........................................................................................... 15 CERTIFICATE OF COMPLIANCE ....................................................................... 16 CERTIFICATE OF SERVICE ................................................................................ 16 APPENDIX .............................................................................................................. 18
4 INDEX OF AUTHORITIES
CASES
Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013)..................................... 12 Daye v. Attorney Gen. of New York, 696 F.2d 186 (2nd Cir. 1982) .................. 12, 13 Garza v. State, 435 S.W.3d 258 (Tex. Crim. App. 2014) ........................................ 11 Green v. United States, 309 F.2d 852 (5th Cir. Fla. 1962) ...................................... 15 Smalls v. Batista, 191 F.3d 272 (2d Cir. N.Y. 1999) ............................................... 14 Smalls v. Batista, 6 F. Supp.2d 211 (S.D.N.Y. 1988) .............................................. 12 United States v. Burgos, 55 F.3d 933 (4th Cir. S.C. 1995) ...................................... 14
STATUTES
TEX. R. APP. P. 33.1(a) .......................................................................................... 11 TEX. CONST. ART. V, SECTION 10 .................................................................... 11 UNITED STATES CONSTITUTION, Amendment 6 ............................................ 11 UNITED STATES CONSTITUTION, Amendment 14 .......................................... 11
5 NO. ___________
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
___________________________________________________________________
Petition in Cause No. 23,963-C from the 251st Judicial District Court of Randall County, Texas and Case No. 07-15-00094-CR in the Court of Appeals for the Seventh Supreme Judicial District of Texas
___________________________________________________________________
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS:
KRISTOPHER DONALD MIXON petitions the Court to review the judgment
affirming his conviction for the second degree felony offense of possession of a
6 controlled substance (methamphetamine), and punishment assessed at eight (8) years
confinement in the Institutional Division of the Texas Department of Criminal Justice,
and the judgment of the Seventh Court of Appeals affirming that conviction.
STATEMENT REGARDING ORAL ARGUMENT
This is a published opinion and may be used as precedent in future appellate
decisions. Oral argument would be helpful to the Court for the purpose of discussing
whether the Allen charge as used in this State continues to be viable and if so, whether
a more bright line delineation of its proper use is necessary. There exists confusion
among the appellate courts of this state regarding the extent to which trial courts may
vary the language in an Allen charge from that contained in the traditional Allen jury
charge as set out by the United States Supreme Court. If the Allen charge is to be of
continuous validity in this State, a more bright line instruction of what language may
be included and what language may be excluded in the Allen charge is needed. This
would help eliminate much of the confusion in the application of the law to Allen
charges, would eliminate the subjective application of the charge by appellate courts,
and would give more effective direction to trial counsel for defendants who must
respond at trial to the Allen charge.
7 STATEMENT OF THE CASE
Petitioner was convicted by a jury of possession of a controlled substance
(methamphetamine). The Seventh Court of Appeals in its opinion in this case
determined that (1) Petitioner has waived his complaint at the trial court level
concerning the error in submitting the Allen charge [Court of Appeals Opinion, p. 9];
and (2) the trial court did not err in submitting the Allen charge at issue because it was
not coercive. [Court of Appeals Opinion, p. 12].
The Seventh Court of Appeals summarily overruled Petitioner’s Constitutional
challenge concerning the Allen charge, claiming that Petitioner failed to specifically
lodge his Constitutional challenge to the charge at trial [Court of Appeals Opinion, p.
9]. The court of appeals erred in this analysis, because the complaint on appeal falls
under the category of absolute rights (which cannot be forfeited by inaction alone) or at
the very least rights that must be waived by a waiver which is affirmatively, plainly,
freely and intelligently made. The right of due process through an uncoerced jury
verdict is not among the waivable constitutional rights.
The Seventh Court of Appeals also ruled that there was no error in the trial
court’s submission of the Allen charge, so Petitioner’s complaint that the error was
harmful was not addressed. The error of the court of Appeals analysis of Petitioner’s
first and second appellate complaints is that the specific variance by the trial court from
8 that Allen charge language which Texas appellate courts have deemed acceptable
resulted in improper coercion, contrary to the finding of the Seventh Court of Appeals.
The Allen charge in this case implied that the Petitioner had an obligation to offer
proof beyond a reasonable doubt that he was not guilty of the charge in the indictment.
STATEMENT OF PROCEDURAL HISTORY
Petitioner pleaded not guilty [RR Vol. 2, p. 112] to the offense of possession of
a controlled substance (methamphetamine) as charged in the indictment [CR p. 8]. The
case was tried to a jury, which found Petitioner guilty as charged in the indictment [RR
Vol. 3, p. 148]. Petitioner elected to have the trial judge assess his punishment, and the
trial court sentenced Petitioner in open court on December 16, 2014 to a term of eight
(8) years in the Texas Department of Criminal Justice – Institutional Division [RR Vol.
4, p. 70]. Sentence was imposed in open court on December 16, 2014 [RR Vol. 4, p.
70], and the court’s Nunc Pro Tunc Judgment of Conviction by Jury was signed on
January 13, 2015 [CR pp. 114-116]. The trial court certified Petitioner’s right to appeal
the judgment [CR p. 100]. Petitioner filed a Motion For New Trial and Motion in
Arrest of Judgment [CR 104-106; amended at CR 119-121]. In his amended motion for
new trial, Petitioner raised the issue that the Allen charge given by the trial court was
coercive. The amended motion for new trial was overruled by operation of law.
Petitioner filed a timely notice of appeal [CR p. 136].
9 The Seventh Court of Appeals affirmed Petitioner’s conviction on November 10,
2015. Mixon v. State, 2015 Tex. App. LEXIS 11645 (Tex. App. Amarillo November
10, 2015). No petition for rehearing was filed.
GROUNDS FOR REVIEW - RESTATED
When reviewing the issue of forfeiture of the constitutional due process right to an uncoerced jury verdict, the court of appeals must first categorize the alleged error as either absolute, waivaible by affirmative action, or waivable by inaction. To summarily overrule the complaint because of the absence of a specific objection constitutes error in the court of appeals analysis.
The due process right to an uncoerced jury verdict falls under the category of absolute Constitutional rights.
Any language in a supplemental Allen jury charge which implies the obligation of the defendant to provide proof beyond a reasonable doubt is coercive.
ARGUMENT
Forfeiture of right to complain due to lack of trial objection
In its decision, the Seventh Court of Appeals reviewed Petitioner’s third ground
for appeal and stated:
“When in response to the jury’s note, the trial court proposed the supplemental charge, appellant objected as follows: ― ‘Judge, I just need to object to it. I will object. I would propose that they just be asked if they have any possibility of reaching a verdict.’ The State responds, and we agree, that appellant’s very
10 general objection to the supplemental charge when it was proposed failed to preserve any challenge to the constitutional concerns he now raises on appeal. Only by reading the objection most liberally would the objection preserve any error on appeal. At any rate, there having been no mention whatsoever of any constitutional challenge to the supplemental charge, we conclude that appellant failed to preserve any constitutional issues concerning the supplemental charge and summarily overrule that point of error. See TEX. R. APP. P. 33.1(a).”
[Court of Appeals Opinion p. 9, note 2]
The rights of a defendant fall into three categories. The first category of rights
are those that are widely considered so fundamental to the proper functioning of the
adjudicatory process that they cannot be forfeited by inaction alone. These are
considered absolute rights. The second category of rights is comprised of rights that are
not forfeitable—they cannot be surrendered by mere inaction, but are waivable if the
waiver is affirmatively, plainly, freely, and intelligently made. The trial judge has an
independent duty to implement these rights absent any request unless there is an
effective express waiver. Finally, the third category of rights are forfeitable and must
be requested by the litigant. Many rights of the criminal defendant, including some
constitutional rights, are in this category and can be forfeited by inaction.” Garza v.
State, 435 S.W.3d 258, 259 (Tex. Crim. App. 2014).
The right of due process through an uncoerced jury verdict, being grounded in
the Sixth and Fourteenth Amendments to the United States Constitution and in
ARTICLE V, SECTION 10 of The Texas Constitution, is not among the waivable
11 constitutional rights. The trial court’s submission of the Allen charge in this case
implicates a constitutional right because it revolves around the issue of coercion.
Smalls v. Bautista, 6 F. Supp.2d 211, 218 (S.D.N.Y. 1988). A defendant has a due
process right to an uncoerced jury verdict. Id., at 218. A claim that the record is devoid
of an objection is not subject to procedural default. Davison v. State, 405 S.W.3d 682,
684 (Tex. Crim. App. 2013).
Petitioner did lodge an objection to the Allen charge. Petitioner afforded the trial
court a second opportunity to correct the charge error by specifically alleging the error
in his amended motion for new trial.
Even supposing that Petitioner’s claim did not, on its face, alert the state court to
any federal claim, Petitioner satisfies the last test of the Daye analysis. Petitioner’s
contention regarding the Allen charge was sufficient to alert the state court that a
federal due process claim was being asserted because the fact pattern alleged is within
the mainstream of constitutional analysis. “The gravamen of a claim of denial of a fair
trial due to judicial bias does not depend on the source of the bias or the manner of its
manifestation. If judicial bias, or the appearance of it, existed, due process was denied.
We do not believe it reasonable to assume that state judges presented with a claim of
manifested judicial bias would fail to recognize the implication of due process rights
simply because half a century of due process cases dealt with the mere risk of bias or
12 with actual bias manifested in other ways.” Daye v. Attorney Gen. of New York, 696
F.2d 186, 197 (2nd Cir. 1982) (en banc).
This Court need not even reach the Daye question of whether the issue was
cognizable pursuant to Petitioner’s trial objection and motion for new trial if Petitioner
is correct that the due process right at issue here is an absolute right and not subject to
forfeiture.
Coercive nature of the Allen charge in this case
In relevant part, the trial court’s Allen charge in this case stated:
Although the verdict must be based upon proof beyond a reasonable doubt, and although the verdict must be the individual verdict of each juror, and not a mere acquiescence in the conclusion of other jurors, each juror should show a proper regard to the opinion of the other jurors.
[CR p. 97]
There is only one party in the criminal trial to whom the “proof beyond a
reasonable doubt” burden applies: the State. The trial court’s Allen charge in this case
highlighted that burden, then provided some “although” exceptions, and finally
instructed the jurors to “show a proper regard for the opinion of the other jurors.”
Since the Petitioner had no obligation to prove anything beyond a reasonable doubt,
requesting that the jury show proper regard for the opinion of other jurors could have
been directed no other persons than those who felt the State had not met its burden and
13 were therefore hanging up the jury deliberations. The fact that the trial court did not
explicitly single out those “not guilty” jurors is of little legal significance. Although
most courts upholding the use of the Allen charge which does not single out individual
jurors, “an evaluation of a suspect Allen charge must be conducted from the
perspective of a juror in the minority, because ‘they always know their minority status,
and if fearfully inclined, may presumably suspect a disgruntled judge can find them
out.’” United States v. Burgos, 55 F.3d 933, 940 (4th Cir. S.C. 1995). The danger is
clear, as stated by the New York Second Circuit: “Here, the juror in the minority was
not made aware of the possibility that, if he or she was not convinced by the views of
the majority, he or she should hold on to his or her own conscientiously held beliefs.
The absence of that option might lead minority jurors to believe that unless they are
able to convince the majority, they should abandon their own conscientiously held
position.” Smalls v. Batista, 191 F.3d 272, 281 (2d Cir. N.Y. 1999). In that case, the
court held that the charge was rendered coercive not so much for what it contained but
for what it failed to contain. The same is true in this case, with the added error that the
astute juror could figure out to whom the “beyond a reasonable doubt” language was
directed. In sum, the Allen charge given in this case “gave the jury false notions of the
validity and force of majority opinion; it tended to limit full and free discussion in the
jury room; it prejudiced the right of an accused to a hung jury and a mistrial by tending
14 to stifle the dissenting voices of minority jurors.” Green v. United States, 309 F.2d
852, 856 (5th Cir. Fla. 1962).
For the foregoing reasons, Petitioner requests this Court to find that (1)
Petitioner has not waived or forfeited his right to complain of the Allen charge
submitted by the trial court; and (2) the Seventh Court of Appeals erroneously held that
the Allen charge in this case was not coercive. Therefore, the judgment of the Seventh
Court of Appeals should be reversed and Petitioner should be granted a new trial.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court
grant this petition, and upon reviewing the judgment entered by the Seventh Court of
Appeals, reverse the judgment of the Court of Appeals with instructions to that court to
remand the case to the trial court for a new trial. In the alternative, in the event this
Court determines that the court of appeals erroneously applied the standard regarding
review of the alleged waiver or forfeiture by Petitioner of his Constitutional rights in
this case, the Court of Criminal Appeals should reverse the judgment of the Seventh
Court of Appeals and remand the case for a proper harm analysis.
15 Respectfully submitted,
Easterwood, Boyd & Simmons, PC 623 N. Main Street, P.O. Box 273 Hereford, TX 79045 Tel: (806) 364-6801 Fax: (806) 364-2526
By: /s/ James B. Johnston James B. Johnston State Bar No. 10838200 Email: bryan@ebs-law.net Attorney for Kristopher Donald Mixon
CERTIFICATE OF COMPLIANCE
This is to certify that the number of words in this document according to the word count of the program used to prepare the document is 2963.
/s/ James B. Johnston James B. Johnston
Certificate of Service
I hereby certify that a true copy of the foregoing instrument was provided to all counsel of record in this matter on the 10th day of December, 2015, in accordance with the Texas Rules of Appellate Procedure.
State Prosecuting Attorney P. O. Box 12405 Austin, Texas 78711
16 Warren L. Clark Randall County District Attorney’s Office 2309 Russell Long Blvd., Ste. 120 Canyon, Texas 79015
17 APPENDIX
Opinion of the Seventh Court of Appeals
18 In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-15-00094-CR
KRISTOPHER DONALD MIXON, APPELLANT
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court Randall County, Texas Trial Court No. 23,963-C, Honorable Ana Estevez, Presiding
November 10, 2015
OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Kristopher Donald Mixon, appeals the trial court’s judgment by which
he was convicted of possession of a controlled substance, methamphetamine, in an
amount greater than four grams but less than 200 grams.1 The trial court sentenced
him to eight years’ imprisonment. On appeal, he brings four points of error, three of
which focus on the trial court’s supplemental charge to the jury and the fourth of which
challenges the sufficiency of the evidence. We will affirm.
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010). Factual and Procedural History
On November 4, 2012, Amarillo Police Department officers responded to an early
morning 911 hang-up call from 7002 Imperial Trail in Amarillo, Texas. Officer Jarrod
Robertson responded first to the scene of the hang-up call. He was met by a female
named Belinda Treadway, appellant’s girlfriend, who began to voice her suspicions to
Robertson about an intruder being in the shed. Two other people in addition to
Treadway and appellant were present that morning; the two people—appellant’s
daughter and her husband—had apparently just moved into the residence as well.
Corporal Jerry Neufeld arrived a short time later to assist Robertson.
Both appellant and Treadway consented to a search of the home, including the
shed. The search began with the shed in the backyard, described by Robertson as a
detached garage that appeared to be used more as a workshop. As Robertson,
Neufeld, and Treadway made their way to the shed, appellant retrieved the key and
went outside to unlock the door to the shed.
After confirming that no one was located in the shed, the officers, appellant, and
Treadway returned to the residence where Treadway retrieved and brought to
Robertson an opened white box containing needles, spoons, a clear plastic bag
containing a crystalline substance that looked like methamphetamine, and other items
that Robertson recognized as drug paraphernalia. To rule out an alternative purpose for
having the hypodermic needles in the home, Robertson asked whether appellant was a
diabetic to which appellant responded, ―No.‖ When Robertson asked appellant what the
contents of the bag were, appellant responded, ―Probably meth.‖
2 A full-scale search of the residence then ensued, beginning in the northeast
bedroom where the officers found several items of drug paraphernalia, specifically both
broken and intact pipes. A search of the southeast bedroom yielded several more items
of drug paraphernalia, including more pipes generally used for smoking
methamphetamine. Robertson and Neufeld returned to the shed to continue their
search, this time for narcotics. Officers found additional paraphernalia in the shed and
also located a small green change purse on a shelf. Inside that purse, the officers
discovered a plastic bag containing what they believed—and later confirmed—to be
methamphetamine, the 6.85 grams possession of which is at issue in this case.
Appellant was convicted of possession of the 6.85 grams of methamphetamine
and sentenced to eight years’ imprisonment. On appeal from that conviction, he
presents three points of error contending that the trial court reversibly erred by giving
the jury a supplemental charge when the jury indicated that it was having difficulty
reaching a decision. He also challenges the sufficiency of the evidence to support his
conviction.
Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence in the final point of error;
however, because this point of error would, if sustained, afford the greatest relief to
appellant, we will address the sufficiency of the evidence first. See Chaney v. State,
314 S.W.3d 561, 565, 566 n.6 (Tex. App.—Amarillo 2010, pet. ref’d) (citing TEX. R. APP.
P. 43.3 and Bradleys’ Elec. Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.
1999) (per curiam)).
3 Standard of Review
In assessing the sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). ―[O]nly that evidence which is sufficient in
character, weight, and amount to justify a factfinder in concluding that every element of
the offense has been proven beyond a reasonable doubt is adequate to support a
conviction.‖ Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful
that ―[t]here is no higher burden of proof in any trial, criminal or civil, and there is no
higher standard of appellate review than the standard mandated by Jackson.‖ Id.
When reviewing all of the evidence under the Jackson standard of review, the ultimate
question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07
n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d
404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single
evidentiary standard of review). ―[T]he reviewing court is required to defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony.‖ Id. at 899.
Applicable Law
A conviction for possession of a controlled substance is supported only when the
evidence establishes that the defendant ―knowingly or intentionally possesse[d]‖ the
alleged controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). ―A
4 person acts knowingly, or with knowledge, with respect to the nature of his conduct or to
circumstances surrounding his conduct when he is aware of the nature of his conduct or
that the circumstances exist.‖ TEX. PENAL CODE ANN. § 6.03(b) (West 2011). The mere
presence of the accused at the place where contraband is located does not make him a
party to joint possession, even if he knows of the contraband’s existence. Jenkins v.
State, 76 S.W.3d 709, 712 (Tex. App.—Corpus Christi 2002, pet. ref’d). Proof of
possession requires evidence that the accused exercised ―actual care, custody, control,
or management‖ over the substance. See TEX. HEALTH & SAFETY CODE ANN. §
481.002(38) (West Supp. 2014). Thus, the State must prove the accused (1) ―exercised
control, management, or care over the substance‖ and (2) knew that the substance
―possessed‖ was contraband. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim.
App. 2006); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988) (en banc).
When the accused is not in exclusive control of the place where the contraband
is found, the State must establish care, custody, control, or management by linking the
accused to the substance through additional facts and circumstances. See Poindexter
v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Deshong v. State, 625
S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981)). Be it direct or circumstantial, the
State’s evidence of links must establish, ―to the requisite level of confidence, that the
accused’s connection with the drug was more than just fortuitous.‖ See id. at 405–06
(quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc)); Park
v. State, 8 S.W.3d 351, 352–53 (Tex. App.—Amarillo 1999, no pet.). In other words, the
evidence must affirmatively connect the accused to the contraband in such a manner
and to such a degree that a reasonable inference may arise that the accused knew of
5 the contraband’s existence and that he exercised control over it. See Travis v. State,
638 S.W.2d 502, 503 (Tex. Crim. App. [Panel Op.] 1982).
The several factors by which an accused may, under the unique circumstances
of each case, be sufficiently ―linked‖ to the contraband, include the following
considerations: (1) the defendant’s presence when a search is conducted; (2) whether
the contraband is in plain view; (3) the defendant’s proximity to and the accessibility of
the contraband; (4) whether the defendant was under the influence of contraband when
arrested; (5) whether the defendant possessed other contraband or narcotics
connecting himself to the contraband; (6) whether the defendant made incriminating
statements connecting himself to the contraband; (7) whether the defendant made
furtive gestures; (8) whether there was an odor of contraband; (9) whether other
contraband or drug paraphernalia were present; (10) whether the defendant owned or
had the right to possess the place where the contraband was found; (11) whether the
place where the contraband was found was enclosed; (12) whether the defendant was
found with a large amount of cash; (13) whether the conduct of the defendant indicated
a consciousness of guilt, including whether the accused attempted to flee; and (14)
whether occupants of the premises gave conflicting statements about relevant matters.
See Evans, 202 S.W.3d at 162 n.12; Jenkins, 76 S.W.3d at 712–13; see also Triplett v.
State, 292 S.W.3d 205, 209 (Tex. App.—Amarillo 2009, pet. ref’d) (listing numerous
factors to be considered in analysis). These factors, however, are simply that—factors
which may circumstantially establish the sufficiency of evidence offered to prove a
knowing ―possession.‖ See Evans, 202 S.W.3d at 162 n.12 (cautioning courts that
6 these factors ―are not a litmus test‖). It is not the number of links that is dispositive;
rather, it is the logical force of all the evidence. See id. at 162.
Analysis
In evaluating the evidence for factors linking appellant to the methamphetamine
found in the shed, we note that the methamphetamine at issue was found in a purse in
a locked outdoor shed, the key to which appellant apparently controlled. Scales and
several other items of paraphernalia were present throughout the house and the shed,
though appellant maintains none of those items were directly linked to him. Specifically,
several pipes were found in the southeast bedroom that had been converted by
appellant into a video surveillance equipment room, used to monitor activities on and
around the property.
Appellant was considered the ―primary resident‖ of the house although
appellant’s sister held title to the house. From the interaction with police at the scene,
we see that appellant was familiar with and admitting using methamphetamine at
various points in the past. In fact, when Treadway brought the opened box of drug
paraphernalia and a plastic bag with an unidentified substance in it, appellant readily
concluded that the bag probably contained methamphetamine.
Through these additional facts and circumstances, the State presented evidence
from which the jury could have rationally found that appellant (1) ―exercised control,
management, or care over the substance‖ and (2) knew that the substance ―possessed‖
was contraband. See id. at 161.
7 Appellant highlights a number of other ―factors‖ which did not link him to the
methamphetamine found in the shed. He points out that there is no evidence that
appellant was under the influence of methamphetamine when he was arrested, that
appellant made no incriminating statements when arrested, that appellant made no
attempt to flee and no furtive gestures, that officers found no large amounts of cash,
and that there were no other indications in appellant’s behavior of a consciousness of
guilt. However, the ―absence of various affirmative links does not constitute evidence of
innocence to be weighed against the affirmative links present.‖ Jones v. State, 466
S.W.3d 252, 260 (Tex. App.—Houston [1st Dist.] 2015, pet. filed) (quoting James v.
State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)).
Appellant also emphasizes that it was Treadway who had actual knowledge of
the first amount of methamphetamine as evidenced by the fact that she retrieved it and
brought it to Robertson. Nonetheless, that Treadway may have also known enough
about or been sufficiently linked to methamphetamine is not at issue in this case. ―The
mere fact that a person other than the accused might have joint possession of the
premises does not require the State to prove that the defendant had sole possession of
the contraband, only that there are affirmative links between the defendant and the
drugs such that he, too, knew of the drugs and constructively possessed them.‖
Poindexter, 153 S.W.3d at 412; see Cole v. State, 194 S.W.3d 538, 548 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d) (―The State need not prove exclusive possession of
the contraband for conviction.‖).
Having found the evidence was sufficient, such that the jury could have rationally
concluded that appellant knowingly or intentionally possessed the methamphetamine
8 found in the shed, and remaining unpersuaded by the evidence he cites as militating
against guilt, we overrule his point of error.
Supplemental Charge to the Jury
In his first three points of error, appellant takes issue with the trial court’s
supplemental charge to the jury. First, he contends that the trial court erred by issuing
said charge to the jury. Secondly, he contends that such error caused harm to
appellant. Finally, he contends the trial court’s supplemental jury charge deprived him
of a fair and impartial trial as guaranteed by the Sixth Amendment to the United States
Constitution and by Article V, Section 10 of the Texas Constitution.2
Applicable Law and Standard of Review
When the jury sent out a note that it ―[could] not reach decision on this case,‖ the
trial court proposed a supplemental charge reminding 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 issue any easier to resolve. Appellant
lodged a very general objection to this supplemental charge and proposed an
alternative charge in the form of a question to the jury regarding the possibility of
reaching a verdict. The trial court overruled appellant’s objection and read the
2 When in response to the jury’s note, the trial court proposed the supplemental charge, appellant objected as follows: ―Judge, I just need to object to it. I will object. I would propose that they just be asked if they have any possibility of reaching a verdict.‖ The State responds, and we agree, that appellant’s very general objection to the supplemental charge when it was proposed failed to preserve any challenge to the constitutional concerns he now raises on appeal. Only by reading the objection most liberally would the objection preserve any error on appeal. At any rate, there having been no mention whatsoever of any constitutional challenge to the supplemental charge, we conclude that appellant failed to preserve any constitutional issues concerning the supplemental charge and summarily overrule that point of error. See TEX. R. APP. P. 33.1(a).
9 supplemental charge to the jury. Having received its supplemental charge, the jury
retired from the courtroom at 2:09 p.m. At 3:26, the trial court noted that the jury
indicated that it had reached a verdict.
A supplemental charge, such as the one given in this case, to a jury that had
declared itself deadlocked is widely known as an Allen charge. See Barnett v. State,
189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006); see also Ex parte Menchaca, 854
S.W.2d 128, 130 & n.3 (Tex. Crim. App. 1993) (en banc) (noting one alternative name
for Allen charge is a ―dynamite‖ charge). An Allen charge takes its name from Allen v.
United States, 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528 (1896), and refers to a
supplemental charge sometimes given to a jury that declares itself deadlocked.
Generally speaking, it is designed to remind 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 issue any easier to resolve. See id.; Barnett, 189 S.W.3d at
277 n.13. The use of an Allen charge in this context has long been sanctioned by both
the United States Supreme Court and the Texas Court of Criminal Appeals. See Allen,
164 U.S. at 501–02; Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996) (en
banc), overruled on other grounds by Easley v. State, 424 S.W.3d 535, 538 & n.23
(Tex. Crim. App. 2014); Arrevalo v. State, 489 S.W.2d 569, 571–72 (Tex. Crim. App
1973).
Nevertheless, trial courts are cautioned that they must design and administer this
supplemental charge in a non-coercive manner. See Howard, 941 S.W.2d at 123–24.
Generally speaking, ―a supplemental charge which suggests that all jurors reevaluate
their opinions in the face of disparate viewpoints cannot be said to be coercive on its
10 face.‖ Id. at 123. The primary inquiry to determine the propriety of an Allen charge is its
coercive effect on juror deliberation, ―in its context and under all circumstances.‖
Lowenfield v. Phelps, 484 U.S. 231, 237, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988)
(quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059, 13 L. Ed. 2d 957
(1965) (per curiam)).
When, after approximately three and one-half hours of deliberation, the jury
indicated to the trial court that it was unable to reach a decision, the trial court issued
the following supplemental instruction over appellant’s general objection:
You are instructed that in a case of this nature it is not unusual for your deliberations to take a considerable amount of time.
You are further instructed that in a large portion of the cases absolute certainty cannot be expected. Although the verdict must be based upon proof beyond a reasonable doubt, and although the verdict must be the individual verdict of each juror, and not a mere acquiescence in the conclusion of other jurors, each juror should show a proper regard to the opinion of the other jurors. You should listen, with a disposition to be convinced, to the arguments of the other jurors. You should consider whether or not you are basing your opinion on speculation or surmise and not on the evidence in this case.
If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury. The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time. Any such future jury will be impaneled in the same way this jury has been impaneled and will likely hear the same evidence which has been presented to this jury. The questions to be determined by that jury will be the same questions confronting you, and there is no reason to expect that the next jury will find these questions any easier to decide than you have found them.
With this additional instruction, you are requested to continue your deliberations in an effort to arrive at a verdict that is acceptable to all
11 members of the jury, if you can do so without doing violence to the conscience of any individual juror.
The trial court then requested that the jury retire and continue its deliberations. It did so
and returned its guilty verdict one hour and seventeen minutes later.
As is apparent from the face of the Allen charge given, the trial court did not
direct the supplemental charge toward the minority jurors. See Howard, 941 S.W.2d at
123–24. The instructions contained in the Allen charge utilized here are consistent with
similar instructions used in Allen charges used throughout this state and have been held
to be noncoercive. See West v. State, 121 S.W.3d 95, 108–09 (Tex. App.—Fort Worth
2003, pet. ref’d) (concluding that nearly identical Allen charge was not coercive and
providing citation to several state and federal cases dealing with similarly worded Allen
charges). That said, the Allen charge was not coercive on its face, nor was it delivered
with any additional comment that could be read to be coercive or in any way convey the
trial court’s view of the case. See Howard, 941 S.W.2d at 123–24 (observing, in that
case, that supplemental charge directing ―all jurors‖ to reevaluate their opinions was not
coercive on its face and noting further that the trial court ―did not shade the instruction
with coercive nuance‖).
Instead, the charge given here appears to be designed to ―avert an impasse‖
following three and one-half hours of deliberation. See id. at 124. Indeed, the jury
continued to deliberate for an additional one hour and seventeen minutes after having
been so charged, suggesting that the jury did continue deliberations rather than come to
a decision following a simple acquiescence by the minority jurors. We conclude that the
trial court did not err in giving the Allen charge to the jury in these circumstances.
12 We overrule appellant’s first point of error contending that the Allen charge from
the trial court was error. Having so concluded, we need not address whether the
alleged error was harmful and overrule appellant’s second point of error as well.
Conclusion
Having overruled appellant’s points of error, we affirm the trial court’s judgment of
conviction. See TEX. R. APP. P. 43.2(a).
Mackey K. Hancock Justice
Publish.