Case Information

*0 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 8/4/2015 3:53:29 PM VIVIAN LONG CLERK *1 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 FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

NO. 07-15-00094-CR KRISTOPHER DONALD MIXON Appellant,

V .

THE STATE OF TEXAS

Appellee. ________________________ APPEAL FROM THE 251 ST 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 *2 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

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iii *4 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 [1 st Dist.] 1994, pet. ref’d.) . . . . . . . . . . . . . . . . . . . . . 23 James v. State , 264 S.W.3d 215

(Tex.App.-Houston [1 st 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 *9 IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

NO. 07-15-00094-CR ___________________________________________ KRISTOPHER DONALD MIXON Appellant,

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 251 st District Court, Randall

County, Texas, the Honorable Ana Estevez, presiding judge.

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)

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).

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

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

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

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

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)

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

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

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

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 ,

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

(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.).

II. 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

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

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 *24 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

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, *26 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.

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 Appellant contends that the evidence is legally insufficient because the record presents a mere “collection of potential linking factors” that serve only to raise

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

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.

ARGUMENT

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.

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

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

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 [1 st 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);

James v. State , 264 S.W.3d 215, 219 (Tex.App.-Houston [1 st 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

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

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.

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

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 *37 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 *38 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 4 th day of August, 2015

s/ Warren L. Clark Warren L. Clark