In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00421-CR ____________________
RICHARD MCKINNLEY NIXON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 13-18376-CR
MEMORANDUM OPINION
Appellant Richard McKinnley Nixon (Nixon) was indicted by a Jefferson
County grand jury for possession of a controlled substance (cocaine), a second
degree felony. See Tex. Health & Safety Code Ann. § 481.115 (West 2010). The
indictment alleged that on or about May 3, 2012, Nixon “intentionally and
knowingly possess[ed] a controlled substance listed in Penalty Group 1 of the
Texas Controlled Substance Act, namely COCAINE, by aggregate weight . . . in an
amount of at least four (4) grams or more and less than two hundred (200)
1 grams[.]” The indictment further alleged that prior to the commission of the
primary offense, Nixon “was finally convicted of the felony of Possession of
Controlled Substance-Third Degree Felony on May 10, 2004. . . .” Nixon entered a
plea of not guilty, and the cause was tried to a jury in October of 2015. The jury
found Nixon guilty as charged in the indictment, and assessed punishment at
confinement in the Texas Department of Criminal Justice for a term of twenty
years. The trial court entered a Judgment of Conviction by Jury consistent with the
jury verdict. The trial court then certified that the defendant has the right of appeal.
Nixon timely filed a written notice of appeal.
Nixon raises three issues on appeal. In his first two issues on appeal, he
challenges the admission of certain evidence regarding his prison identification
card from another offense, arguing that the prison identification card “related to an
extraneous offense that was irrelevant” and that such evidence was improper under
evidentiary rules 401, 402, 403, and 404(b). In his third issue, Nixon contends the
trial court erred in denying his request for a continuance. We affirm the judgment.
ORAL MOTION IN LIMINE
At trial, after a jury was selected but immediately before the seating of the
jury, the defendant urged a verbal motion in limine to the court as follows:
[Defense Attorney]: Your Honor, we do have a short motion in limine we need to present. We have a short motion in limine, your Honor.
2 THE COURT: Well, we’ve got a jury coming; and I don’t have a written motion. What do you want?
[Defense Attorney]: No. It would be oral, your Honor. I just --
THE COURT: (Addressing the bailiff) Would you tell them to hold the jury just for a second in the hall. Don’t let them go away.
THE COURT: What is it, Mr. [Defense Attorney]?
[Defense Attorney]: Your Honor, just there might be mention of prior convictions or an ID card that would indicate he is a convicted felon ’cause it’s a T.D.C.J. ID card. And that’s it, your Honor. I think during --
THE COURT: The motion in limine is denied. You have the right to object.
[Defense Attorney]: Yes, sir.
THE COURT: And I’ll take it up when that comes up.
EVIDENCE AT TRIAL
Beaumont Police Officer Rosendo Lopez testified that on May 3, 2012, he
and his partner, Officer Danny Davis, were attempting to serve an arrest warrant on
Nixon for a parole violation for possession of a controlled substance. The officers
were informed that Nixon could be found at 4610 Maddox, Apartment No. 4, in
Jefferson County, Texas. When they arrived at the apartment complex, they found
Nixon’s vehicle in the parking lot. The officers knocked on the door of the
apartment and announced themselves as “Beaumont PD[]” and after several
attempts, a female answered the door. Through the partial opening in the door, 3 Officer Lopez could see the defendant, Richard Nixon, “fleeing to the back of the
residence.” Nixon ran into the bathroom and the officers ordered Nixon to come
out. Officer Lopez testified that he could hear water and a toilet flushing while
Nixon was in the bathroom. After Nixon eventually came out of the bathroom, the
officers apprehended Nixon, took him into custody, and handcuffed him.
Officer Lopez testified that when escorting Nixon to the front door of the
apartment, Lopez “observed in plain view a clear plastic baggy on the couch[]”
that “contained an off-white rock-like substance” that the officer recognized as
“crack cocaine.” State’s exhibits 2A and 2B were identified as the baggy and
substance in question. Officer Lopez testified that, based upon his training and
experience, he formed the opinion that Nixon was in possession of a controlled
substance. Lopez testified that Officer Davis then escorted Nixon to the patrol
vehicle, and initially Nixon was only arrested for the parole violation. Lopez
notified the Narcotics Division and secured the scene, and a female subject was
also placed under arrest for an outstanding warrant. Officers from the Narcotics
Division arrived, and Officer Davis administered Miranda warnings to Nixon while
Nixon was in the patrol car. The Narcotics Division obtained a search warrant.
On cross-examination, Lopez agreed that what Lopez wrote in his report is
similar to what Officer Davis wrote in Davis’s report, but Lopez agreed that the
description provided in Davis’s report had details that Lopez did not include in 4 Lopez’s report. Lopez explained that he could not testify about Davis’s version of
what happened and that “[h]e wrote the report his way. I wrote my report my
way. . . . He can’t testify to what I observed, what I saw.” Lopez confirmed that he
saw Nixon through the partially open door, that Nixon was sitting “on the
couch[,]” and Lopez saw Nixon flee.
Sergeant Cody Courts with the Beaumont Police Department testified that
on May 3, 2012, he was working as an investigator in the Narcotics Division, when
he received a call from Officer Lopez, who reported that while serving an arrest
warrant for a parole violation, Lopez had observed in plain view certain items he
believed to be narcotics. Courts obtained a search warrant for the residence.
Officer Courts testified regarding police protocol and procedures, and identified
various Exhibits. Courts identified Exhibit 1A as the bag in which Courts placed
item 1B, and 1B as a bag with a rock-like substance that Courts found at the
apartment when he executed the search warrant, and which his preliminary testing
at the scene revealed was positive for cocaine. The item inside Exhibit 1A was
located by Officer Courts inside a Crown Royal bag that was underneath the sink
in the bathroom of the apartment. Courts identified Exhibit 2A as the container in
which Lopez placed Exhibit 2B, and 2B as the suspected crack cocaine located on
the couch in plain view first observed by Officer Lopez. Preliminary tests on 2B
indicated it was cocaine. Courts identified Exhibit 3A as the package in which 5 Courts placed 3B, which contained a white powder the officers found in a drawer
in the kitchen during the search.1
The State asked Sergeant Courts what evidence was collected from the
search of the apartment that indicated to the officer that Nixon resided at that
apartment:
[Sgt. Courts]: We located a lot of personal items like driver’s licenses -- or a driver’s license, an inmate or an offender identification card --
[Defense Attorney]: Your Honor, once again, I’m going to object. That goes to your ruling on the motion in limine.
THE COURT: Overruled.
[State’s Attorney]: [] Please continue.
[Sgt. Courts]: An Entergy bill with his name on it for that location, things of that nature.
[State’s Attorney]: Sir, I’m going to show you what has been marked tentatively for identification purposes as State’s Exhibit No. 4. Would you please look at the contents of State’s Exhibit No. 4.
[Sgt. Courts]: (Complies.)
[State’s Attorney]: What does that appear to be, sir?
1 Prior to trial, defense counsel filed a Motion to Suppress “[a]ll tangible items seized by law enforcement” without specifying the articles seized, on the basis that the detention was unlawful under the Fourth and Fourteenth Amendments, Article I, Section 9 of the Texas Constitution, and Chapters 14 and 38 of the Texas Code of Criminal Procedure. There is no indication in the record that the Motion to Suppress was ever set for a hearing or ruled upon by the trial court. 6 [Sgt. Courts]: It appears to be a Texas Department of Criminal Justice Offender Identification Card.
[State’s Attorney]: Is that the same one you saw at the residence?
[Sgt. Courts]: Yes, sir.
[State’s Attorney]: How do we know it’s the same one you saw at the residence?
[Sgt. Courts]: It’s got the same number on it. It’s got the same packaging that I packaged it in. It’s got my handwriting on it.
[State’s Attorney]: Does it also have evidence tape sealing it?
[Sgt. Courts]: Correct. Yes, sir.
[State’s Attorney]: Please put it back in State’s Exhibit No. 4.
[State’s Attorney]: Your Honor, at this time I’d like to introduce State’s Exhibit 4 and its contents into evidence.
THE COURT: Mr. [Defense Attorney]?
[Defense Attorney]: Your Honor, we have the same objection as to its prejudicial value i[t’]s irrelevant as far as any ID, what that ID card is for, and it goes to our motion in limine.
THE COURT: Overruled. 4 is admitted.
After the State rested its case, the defendant indicated he did not wish to
testify but the defense attorney asked the trial court to grant the defendant a “brief
recess” to obtain the appearance of a witness, as follows:
7 [Defense Attorney]: We are asking that the Court grant us a brief recess in order to obtain the appearance of Officer Davis, who is a material witness, based on our motion to suppress as far as what transpired prior to entry into the apartment. It’s our understanding that Mr. Davis is available to testify. However, I think he’s in custody of his children and he’s not available until 11:00 o’clock in the morning. And the State is not going to call Officer Davis. I don’t know if Officer Davis has been subpoenaed by the State or not. I believe we are allowed to rely on their subpoenas. Of course, they were -- one of the witnesses we believed they were going to call. That being a material witness, we are going to need him to corroborate what his report says.
THE COURT: That’s denied[]. The case was set for trial in August, plenty of time to get everybody here that y’all wanted to testify.
The defendant did not call any witnesses at trial.
STANDARD OF REVIEW
We review a trial court’s decision to admit evidence under Rules 404(b) and
403 for an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex.
Crim. App. 2009). “As long as the trial court’s ruling is within the ‘zone of
reasonable disagreement,’ there is no abuse of discretion, and the trial court’s
ruling will be upheld.” Id. at 343-44 (quoting Montgomery v. State, 810 S.W.2d
372, 391 (Tex. Crim. App. 1991) (op. on reh’g)). If the trial court’s decision is
correct on any theory of law applicable to the case, we will uphold the decision. Id.
at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982).
We review the trial court’s denial of a defendant’s motion for continuance
for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 8 2007); Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006). The trial
court has discretion to deny a continuance, and reversal is justified only when the
trial court has abused its discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex.
Crim. App. 1982). A continuance may be granted after trial has begun when there
is some unexpected occurrence, which no reasonable diligence could have
anticipated that so takes the applicant by surprise that a fair trial cannot be had.
Tex. Code Crim. Proc. Ann. art. 29.13 (West 2006). To obtain a continuance for a
missing witness, the defendant must show, among other things, that he exercised
due diligence to secure attendance. Id. art. 29.06(2) (West 2006). A party seeking a
new trial based on the denial of a motion for continuance for an absent witness
must file a sworn motion for new trial, stating the testimony that the missing
witness would have provided. Harrison v. State, 187 S.W.3d 429, 435 (Tex. Crim.
App. 2005) (citing McCloud v. State, 494 S.W.2d 888, 891 (Tex. Crim. App.
1973)); Robinson v. State, 454 S.W.2d 747, 748 (Tex. Crim. App. 1970). The
motion for new trial must include an affidavit of the missing witness or a sworn
statement from some source that the witness would actually testify to the facts set
forth in the motion for new trial. Harrison, 187 S.W.3d at 435-36 (citing McCloud,
494 S.W.2d at 890-91). A party fails to exercise due diligence necessary to support
a motion for continuance when he did not subpoena his witness, but relied solely
upon promises that the witness would be present. See Rodriguez v. State, 21 9 S.W.3d 562, 566 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Absent such
due diligence, a trial court does not abuse its discretion by overruling the party’s
motion for continuance. See Cooks v. State, 844 S.W.2d 697, 725 (Tex. Crim. App.
1992) (deciding that trial court’s denial of motion for continuance for a defendant
to locate a witness was not abuse of discretion when, among other things,
defendant did not file pretrial application for subpoena).
PRISON IDENTIFICATION CARD
In his first two issues, Nixon argues that the prison identification card
constitutes evidence of an “extraneous act” used to prove a propensity to violate
the law and that it was inadmissible under Rule 404(b). Nixon also contends that
the evidence was irrelevant and prejudicial under Rules 401, 402, and 403. The
State contends the ID card was used to prove an element of the crime charged, that
is, an affirmative link between Nixon and the drugs, and that the evidence was
cumulative of other evidence previously admitted without objection.
To preserve error for appellate review, a party’s objection generally must be
sufficiently specific so as to “‘let the trial judge know what he wants, why he
thinks himself entitled to it, and do so clearly enough for the judge to understand
him at a time when the trial court is in a proper position to do something about it.’”
Malone v. State, 405 S.W.3d 917, 925 (Tex. App.—Beaumont 2013, pet. ref’d)
(quoting Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009)). It 10 follows, that an objection stating one legal basis may not be used to support a
different legal theory on appeal. See Zillender v. State, 557 S.W.2d 515, 517 (Tex.
Crim. App. 1977). Where a complaint on appeal does not comport with an
objection made at trial, the error is not preserved on that complaint. Goff v. State,
931 S.W.2d 537, 551 (Tex. Crim. App. 1996); Broxton v. State, 909 S.W.2d 912,
918 (Tex. Crim. App. 1995); Dunn v. State, 819 S.W.2d 510, 524-25 (Tex. Crim.
App. 1991) (discussing the importance of specific objections under Rule 52, the
predecessor to Rule 33.1). In order to raise a Rule 404 complaint on appeal, the
objecting party must have made a Rule 404 objection separate from a Rule 403
objection. See Montgomery, 810 S.W.2d at 389.
In the case at bar, Nixon made an oral motion in limine on the first day of
trial that was overruled. In the oral motion in limine the defense notified the court
that there may be “mention of prior convictions or an ID card that would indicate
he is a convicted felon ’cause it’s a T.D.C.J. ID card[,]” and the trial court
indicated it would “take it up when that comes up.” When the ID card is then
mentioned in the testimony, the only objection voiced by the defense is “once
again, I’m going to object to that question and answer, and that goes to the motion
-- motion in limine.” And, then again when the ID card is offered into evidence,
“[y]our Honor, we have the same objection as to its prejudicial value is irrelevant
as far as any ID, what that ID card is for, and it goes to our motion in limine.” The 11 trial court overruled the objections. The appellant failed to make a Rule 404(b)
objection. Therefore, he failed to preserve these arguments on appeal. See Tex. R.
App. P. 33.1 (preservation of error for appeal requires a timely objection made
with sufficient specificity to inform the trial court of the complaint); see also
Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012) (A party does not have
to use “magic words” or recite a specific statute to preserve an issue, “as long as
the basis of his complaint is evident to the trial court.”); Brazzell v. State, 481
S.W.2d 130, 131 (Tex. Crim. App. 1972) (“[g]enerally, a motion in limine will not
preserve error to the admission of inadmissible evidence”).
Nevertheless, even assuming that the objection made by Nixon preserved his
appellate argument pertaining to Rule 404(b), we conclude that the evidence was
not inadmissible under Rule 404(b) because the evidence was relevant to
establishing an affirmative link between Nixon and the drugs, and it was within the
zone of reasonable disagreement for the trial court to admit the evidence. Rule
404(b) expressly provides that evidence of crimes, wrongs, or other acts is not
admissible to prove the character of the defendant in order to show he acted in
conformity therewith. Tex. R. Evid. 404(b)(1). Rule 404(b) codifies the common
law principle that a defendant should be tried only for the offense for which he is
charged and not for being a criminal generally. Rogers v. State, 853 S.W.2d 29, 32
n.3 (Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. 12 Crim. App. 2008) (explaining that the defendant is generally to be tried only for
the offense charged, not for any other crimes).
Extraneous offense evidence, however, may be admissible for other
purposes such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b)(2).
The list of exceptions in Rule 404(b) is nonexhaustive. See Prible v. State, 175
S.W.3d 724, 731 (Tex. Crim. App. 2005) (citing Montgomery, 810 S.W.2d at 388).
“Whether extraneous offense evidence has relevance apart from character
conformity, as required by Rule 404(b), is a question for the trial court.” Moses v.
State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court’s Rule 404(b)
ruling admitting evidence is generally within the zone of reasonable disagreement
“if there is evidence supporting that an extraneous transaction is relevant to a
material, non-propensity issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.
App. 2011) (citing Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)).
Texas courts utilize a two-step analysis for determining the admissibility of
extraneous offenses or uncharged acts. Rogers, 853 S.W.2d at 32-33. Courts
determine first whether the evidence is relevant to a material issue in the case and
second whether the relevant evidence should be admitted as an exception to Rule
404(b). Id.
13 Rule 403 provides that “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. The Rule 403
balancing factors include, but are not limited to, the following: (1) the probative
value of the evidence; (2) the potential to impress the jury in some irrational, yet
indelible, way; (3) the time needed to develop the evidence; and (4) the
proponent’s need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex.
Crim. App. 2012) (citing Montgomery, 810 S.W.2d at 389-90); Shuffield v. State,
189 S.W.3d 782, 787 (Tex. Crim. App. 2006). The rules of evidence favor the
admission of relevant evidence and carry a presumption that relevant evidence is
more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim.
App. 1996).
A person commits the offense of possession of a controlled substance, if he
knowingly or intentionally possesses the controlled substance in the prescribed
amount, by aggregate weight, including adulterants or dilutants. See Tex. Health &
Safety Code Ann. §§ 481.102(3)(D) (West 2010), 481.115. To prove possession,
the State had to prove that (1) the accused exercised control, management, or care
over the substance; and (2) the accused knew the matter possessed was contraband.
Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). When the defendant 14 does not have exclusive possession of the place where the contraband is found,
then independent facts and circumstances must link him to the drugs. Poindexter v.
State, 153 S.W.3d 402, 405-13 (Tex. Crim. App. 2005) (citing and quoting
Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)) (concluding that
evidence was sufficient to link defendant to drugs contained in brown paper bag
where bag was hidden in appellant’s house and confidential informant had
disclosed location to police). Regardless of whether the evidence is direct or
circumstantial, it must establish that the defendant’s connection with the drug was
more than fortuitous. Evans, 202 S.W.3d at 161. “Mere presence at the location
where drugs are found is thus insufficient, by itself, to establish actual care,
custody, or control of those drugs.” Id. at 162. However, presence or proximity,
when combined with other evidence, either direct or circumstantial, can be
sufficient to establish that element beyond a reasonable doubt. Id. It is not the
number of links that is dispositive, but rather the logical force of all of the
evidence, direct and circumstantial. Id. Texas courts have set forth a non-exclusive
list of possible links that may be sufficient, either singly or in combination, to
establish a person’s possession of contraband. Id. at 162 n.12. These links include,
among other items, whether the defendant owned or had the right to possess the
place where the drugs were found. Id.
15 The evidence in question was relevant to establishing an affirmative link
between Nixon, the apartment, and the drugs: it was discovered at the scene and
inside the apartment, and at the time it was admitted into the evidence the jury was
already aware that Nixon had previously been convicted of another offense.
Officer Lopez had previously testified that he and Officer Davis were attempting to
serve an arrest warrant on Nixon for a parole violation for possession of a
controlled substance. Nixon did not object to that line of questioning. Additionally,
the prison identification card was relevant to affirmatively linking Nixon to
possession of the cocaine. Accordingly, we conclude the trial court did not abuse
its discretion in admitting the evidence in this case. It was within the zone of
reasonable disagreement for the trial court to find that the evidence was relevant,
that it was not being offered in violation of Rule 404(b), and that the probative
value of the evidence was not substantially outweighed by the danger of unfair
prejudice. Therefore, we overrule issues one and two.
MOTION FOR CONTINUANCE
In his third and final issue, Nixon contends that the trial court committed
reversible error by denying his oral request for a continuance to allow Nixon to
secure the attendance of Officer Davis as a witness at trial. Nixon argues that there
was a significant difference between Davis’s report and Lopez’s report, and that
Davis was a necessary witness so Nixon could establish that the entry into the 16 apartment was illegal. Nixon argues he could not have known Lopez’s testimony,
and that expeditiousness of the trial should have given way to justice to allow the
defendant to fairly present his case under principles of due process. In support of
his argument, Nixon cites to several intermediate courts of appeal decisions,
including Deaton v. State, 948 S.W.2d 371 (Tex. App.—Beaumont 1997, no pet.),
wherein this Court stated that although generally motions for continuance should
be in writing, the denial of the continuance amounted to a denial of due process
and there was no negative impact on the orderly administration of justice by giving
the defendant a continuance until the following morning to call a witness. 948
S.W.2d at 374-77; see also Petrick v. State, 832 S.W.2d 767, 770-71 (Tex. App.—
Houston [1st Dist.] 1992, pet. ref’d); O’Rarden v. State, 777 S.W.2d 455, 459 (Tex.
App.—Dallas 1989, pet. ref’d).
We decline to follow Deaton because subsequent controlling authority from
the Court of Criminal Appeals has confirmed that there is no “due process
exception” to the “written-and-sworn requirement.” Blackshear v. State, 385
S.W.3d 589, 591 (Tex. Crim. App. 2012) (citing Anderson v. State, 302 S.W.3d
276, 280 (Tex. Crim. App. 2009)). Accordingly, Nixon’s oral motion for
continuance preserved nothing for our review. Id. Nixon filed no written motion
and no supporting sworn affidavit. We further note that there was no evidence that
he exercised due diligence in having a subpoena issued for the attendance of the 17 witness. We cannot say that the trial court abused its discretion in denying the oral
motion for continuance. See Priester v. State, 478 S.W.3d 826, 832 (Tex. App.—El
Paso 2015, no pet.). We overrule his third issue.
Having overruled all of Nixon’s issues on appeal, we affirm the trial court’s
judgment.
AFFIRMED.
___________________________ LEANNE JOHNSON Justice
Submitted on July 14, 2016 Opinion Delivered August 24, 2016 Do Not Publish
Before McKeithen, C.J., Horton, and Johnson, JJ.