                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00132-CR


CODY LEE HORNER                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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                         MEMORANDUM OPINION1
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      Appellant Cody Lee Horner appeals his conviction for possessing less than

one gram of methamphetamine.2 In three points, he contends that the evidence

is insufficient to sustain his conviction, that the trial court erred by denying his



      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(b) (West 2010).
motion to suppress, and that the court abused its discretion by denying his

motion for mistrial. We affirm.

                                  Background Facts

       One afternoon in October 2008, Anne Hollis, who is an officer with the

Parker County Sheriff’s Office (PCSO), went to a house near Agnes to serve an

arrest warrant on Linda Scroggins. Officer Hollis called for backup when she saw

a woman matching Scroggins’s general description peering out from a window.3

Tim Oglesby, a PCSO investigator, met Officer Hollis at the house, and another

deputy also arrived there. The three officers spent somewhere between fifteen

and thirty minutes knocking on the doors and windows of the house and

announcing their presence.        Although Officer Hollis heard movement by the

occupants of the house throughout the time that she knocked and announced,

the occupants did not overtly respond to her. The officers eventually received

permission from a supervisor to force entry into the residence.

       After entering the house and walking into the living room area, Investigator

Oglesby secured the two occupants of the house, appellant and Williamson, who

were unsurprised that the officers were there.4 Investigator Oglesby noticed that

       3
      Later, officers determined that the woman looking out from the window
was Angela Williamson, who also lived in the house.
       4
       Scroggins arrived at the house at a later point, and Officer Hollis arrested
her.
                                          2
the television in the living room was showing video surveillance of the front of the

house, including all of the officers’ cars. After Investigator Oglesby looked for

Scroggins but did not find her, he asked appellant whether there was anything

illegal in the house. According to Investigator Oglesby, appellant ―said the only

thing that he had in the house was a bong.‖

      Investigator Oglesby obtained appellant’s verbal consent to search the

house.5 Appellant told Investigator Oglesby that the house was his and had

belonged to his family for several years.     In the bedroom that appellant had

walked out of when the officers entered the house, Investigator Oglesby

discovered a lockbox under a bed. Investigator Oglesby asked appellant about

the contents of the lockbox, and appellant ―just dropped his head.‖ Appellant

then instructed Williamson ―to get the key and open the box.‖           Williamson

retrieved the key to the lockbox from a different box, and Investigator Oglesby

opened the lockbox. In it, he found a large amount of baggies, glass pipes that

may be used for consuming drugs, straws that may be used to snort drugs,

mechanical scales, and a film canister containing a ―crystal-type substance‖ that

he believed to be methamphetamine. Investigator Oglesby took the lockbox and

its items to an evidence room. A PCSO property clerk took the suspected drug


      5
      As explained below, appellant disputes that he gave consent, and he
presented evidence that contradicts some of the facts recited in this section.

                                         3
to a lab, where a forensic scientist found that the substance weighed .08 of a

gram and contained methamphetamine.

      A grand jury indicted appellant for possessing less than one gram of

methamphetamine. Appellant, who was represented by appointed counsel at

trial, pled not guilty, but the jury found him guilty. During the punishment phase

of the trial, appellant pled true to two enhancement allegations, and after the jury

heard three witnesses testify (including appellant’s mother), it assessed

appellant’s punishment at ten years’ confinement. The trial court sentenced him

to the same punishment, and he brought this appeal.

                        The Sufficiency of the Evidence

      In his first point, appellant argues that the evidence is insufficient to sustain

his conviction. To support a conviction for unlawful possession of a controlled

substance, the State must link the accused to the contraband by proving that the

accused exercised control, management, or care over the contraband and knew

that the substance he possessed was contraband. See Tex. Health & Safety

Code Ann. § 481.002(38) (West 2010); Poindexter v. State, 153 S.W.3d 402,

405–06 (Tex. Crim. App. 2005) (explaining that the State must show that the

accused’s connection with the drug was more than fortuitous); Beall v. State, 237

S.W.3d 841, 849 (Tex. App.—Fort Worth 2007, no pet.).




                                          4
      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).            This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v.

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075

(2009). Thus, when performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007).     Instead, we Adetermine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.@ Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder

resolved any conflicting inferences in favor of the prosecution and defer to that

                                          5
resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at

778.

       Appellant argues that his alleged possession of methamphetamine is

―negated by the evidence of Angela Williamson that the drugs were hers and that

[he] knew nothing of them.‖ Williamson, who was engaged to appellant at the

time of his arrest and at the time of the trial, testified to the following facts, among

others:

       the items in the lockbox belonged to her, and appellant did not know of
       their existence;

       she had smoked methamphetamine a few times a week in the bathroom
       while appellant was asleep;

       she bought the drugs from ―somebody [she] knew,‖ and appellant never
       knew that she was buying drugs;

        she hid the lockbox, its key, and its contents from appellant because he
       ―was drug-free and [she] wasn’t[,] and [she] didn’t want to lose him‖;

       she told Investigator Oglesby at the scene that the items in the lockbox
       belonged to her; and

       Investigator Oglesby found and opened the lockbox himself, without
       consent, and he planted drug paraphernalia in the lockbox.6




       6
       After Williamson finished her testimony, the State recalled Investigator
Oglesby. He denied planting evidence, and he restated his testimony that
appellant directed Williamson to get the lockbox’s key and to unlock the lockbox.
He denied that Williamson told him that the methamphetamine belonged to her.

                                           6
      Appellant contends that Williamson’s testimony precluded the possibility

that the jury could have rationally found that he possessed methamphetamine.

Viewed in isolation, Williamson’s testimony could have supported a finding that

appellant did not possess the methamphetamine.                  Investigator Oglesby,

however, gave testimony that contradicted Williamson’s statements, and we must

view the evidence in the light most favorable to the jury’s verdict. See Clayton,

235 S.W.3d at 778. In weighing the conflicting evidence, the jury was charged

with resolving the witnesses’ credibility. Id at 779.; see Dotson v. State, 146

S.W.3d 285, 295 (Tex. App.—Fort Worth 2004, pet. ref’d) (explaining that a jury

is free to ―accept or to reject all or part of . . . defensive evidence‖). The jury’s

guilty verdict indicated that it disbelieved Williamson’s testimony. See Saxton v.

State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); see also Baker v. State, No.

02-10-00079-CR, 2010 WL 4813117, at *6 (Tex. App.—Fort Worth Nov. 24,

2010, pet. ref’d) (mem. op., not designated for publication) (―By returning a guilty

verdict, the jury indicated its choice to believe the State’s witnesses . . . .‖).

      Appellant’s only challenge to the sufficiency of the evidence involves the

competing testimony of Investigator Oglesby and Williamson. Nonetheless, apart

from that issue, we conclude that the conviction was adequately supported by

circumstantial evidence.      When police discover contraband in an area not

possessed exclusively by the accused, additional independent facts can

                                            7
establish a link between the accused and the contraband.           See Beall, 237

S.W.3d at 849–50. These facts may be direct or circumstantial, and their total

number is less significant than the logical force of the link they establish. Id. at

850.   In Beall, we concluded that the evidence was sufficient to sustain a

conviction for possession of methamphetamine when the accused made

incriminating statements to the police.7 Id.

       Investigator Oglesby testified that when he asked appellant about the

contents of the lockbox, ―[appellant] just dropped his head.‖ Investigator Oglesby

interpreted this action as ―a sign of guilt.‖ This evidence provided a rational

reason for the jury to infer that appellant knew of the methamphetamine in the

lockbox. See Hooper, 214 S.W.3d at 16 (defining a permissible inference as ―a

conclusion reached by considering other facts and deducing a logical

consequence from them‖).

       Next, the officers testified that they repeatedly knocked on all parts of

appellant’s house and announced their presence for no less than fifteen to twenty

minutes before they forced entry into the house. The jury could have reasonably


       7
       Other factors may link a defendant to the possession of a controlled
substance, such as the defendant’s presence during the search, the defendant’s
proximity to and the accessibility of the drugs, whether the defendant possessed
other contraband or narcotics when arrested, and whether the defendant owned
or had the right to possess the place where the drugs were found. Tucker v.
State, 183 S.W.3d 501, 510 (Tex. App.—Fort Worth 2005, no pet.).

                                         8
inferred that appellant and Williamson were attempting to hide evidence of the

methamphetamine during that time. Also, the lockbox was found in the bedroom

that appellant had been in before he went to the living area of the house.

According to Investigator Oglesby, after appellant dropped his head in response

to Investigator Oglesby’s question, appellant instructed Williamson to get the key

and open the lockbox for Oglesby. The jury could have rationally determined that

this evidence established appellant’s control of the lockbox, and the jury could

have therefore inferred that appellant knew of its contents.

       Viewing all of the evidence in the light most favorable to the jury’s guilty

verdict, we hold that the jury could have rationally determined, beyond a

reasonable doubt, that appellant was guilty of possessing the .08 of a gram of

methamphetamine that Investigator Oglesby found in the lockbox. See Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. We overrule

appellant’s first point.

                  The Denial of Appellant’s Motion to Suppress

       In his second point, appellant contends that the trial court erred by denying

his motion to suppress the evidence that the officers obtained in his house.

Before trial, appellant filed a motion to suppress in which he generally contended

that all of the physical evidence that the State would offer at trial was obtained in

violation of federal and state law. Appellant did not secure a pretrial hearing on

                                         9
his motion. At trial, he sought suppression of the evidence only after Investigator

Oglesby testified with no objection about getting appellant’s consent to search

the house and finding the evidence in the lockbox.8

      The State contends that appellant forfeited any complaint concerning the

admission of the evidence obtained by Investigator Oglesby in appellant’s house.

We agree. To preserve a complaint for our review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280

S.W.3d 235, 238–39 (Tex. Crim. App. 2009). Further, the trial court must have

ruled on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court’s refusal to rule. Tex. R.

App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App.

2004). A reviewing court should not address the merits of an issue that has not



      8
       Outside of the jury’s presence, appellant testified that he was renting the
house where the officers found the drugs, that he did not give consent for a
search of the house, and that Investigator Oglesby found the key to the lockbox
and opened it on his own. On appeal, appellant argues that the evidence should
have been suppressed because (1) Scroggins’s arrest warrant did not authorize
a search of the house or the detention of appellant and Williamson, (2) if
appellant gave consent, he did not do so until the search had already started,
and (3) the search was conducted without a search warrant and without the
existence of probable cause or exigent circumstances.

                                        10
been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.

2009).

      In Ratliff v. State, we explained,

              To preserve error about the illegal seizure of evidence, a
      defendant must either file a motion to suppress and obtain a ruling
      on the motion or timely object when the State offers the evidence at
      trial. If the defendant waits until the State offers the evidence at trial,
      the objection to the evidence must be made before a witness gives
      substantial testimony about it.

             In Tell v. State, an aggravated robbery case, the defendant
      attempted at trial to suppress the admission of a ski mask that police
      officers obtained from his residence without a search warrant or
      consent. 908 S.W.2d 535, 538, 543 (Tex. App.—Fort Worth 1995,
      no pet.). But the defendant allowed a police officer to answer four
      questions about seizing the ski mask before objecting to the
      evidence. Id. On appeal, we concluded that ―[b]ecause Tell failed to
      object at the time the ski mask was mentioned and allowed further
      questions and answers before finally objecting,‖ he ―waived any error
      in the admission of the ski mask.‖ Id. at 544.

            ....

             . . . [A]ppellant filed a motion to suppress evidence but did not
      obtain a pretrial hearing or ruling on the motion. . . . [A]ppellant then
      allowed [a detective] to testify about the evidence extensively before
      objecting to the admission of the State’s physical evidence . . . .

             We conclude that, as in Tell . . . appellant’s failure to object at
      the time [the detective] specifically described the physical evidence
      and explained how he found that evidence forfeited any error
      associated with his objection to the State’s later introduction of the
      evidence.

320 S.W.3d 857, 860–62 (Tex. App.—Fort Worth 2010, pet. ref’d) (some citations

omitted); see also Garza v. State, 126 S.W.3d 79, 82 (Tex. Crim. App. 2004)

                                           11
(―By affording the judge an opportunity to rule on an objection, he is able to

decide whether the evidence is admissible. If the judge decides the evidence is

inadmissible, the jury is shielded from hearing it.‖).9

      This case is controlled by the principles explained in Ratliff. Appellant filed

a motion to suppress evidence months before trial. He did not obtain a ruling on

the motion, however, until after the lockbox had been admitted into evidence and

Investigator Oglesby had testified extensively, without objection, about the

contents of the lockbox, including the crystal-like substance that he believed to

be methamphetamine. We hold that because appellant did not timely obtain a

ruling on his motion to suppress or object when testimony about the evidence at

issue was offered, he forfeited his complaint about the admission of the

evidence. See Tex. R. App. P. 33.1(a)(1), (2); Ratliff, 320 S.W.3d at 860–62;

Thomas v. State, 884 S.W.2d 215, 216–17 (Tex. App.—El Paso 1994, pet. ref’d).

We overrule appellant’s second point.

                  The Denial of Appellant’s Motion for Mistrial

      In his third point, appellant contends that the trial court abused its

discretion by denying his motion for mistrial after sustaining a relevancy objection

      9
       When a pretrial motion to suppress is filed and the defendant requests a
hearing on the motion, error may be preserved despite a ruling by the trial court
during trial if the court informs the parties that it will not rule until all the evidence
sought to be suppressed has been admitted. See Garza, 126 S.W.3d at 84–85.
There was no such circumstance in this case.

                                           12
to the admission of evidence.         During the State’s direct examination of

Investigator Oglesby, the prosecutor asked him, ―As you were going through the

bedrooms, was there anything that caught your eye?‖         Investigator Oglesby

responded affirmatively and then said that he had noticed a ―rifle hanging on a

gun rack.‖    Appellant objected to that testimony, and after the trial court

discussed the objection with the prosecutor, it sustained the objection and

immediately instructed the jury to disregard the testimony. The court, however,

denied appellant’s motion for mistrial.10

      When a trial court sustains an objection to evidence and instructs the jury

to disregard it but denies a defendant’s motion for mistrial, we must decide

whether the trial court abused its discretion by denying the mistrial. Hawkins v.

State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004); Orr v. State, 306 S.W.3d

380, 403 (Tex. App.—Fort Worth 2010, no pet.) (stating that we must uphold the

trial court’s denial of a motion for mistrial if the ruling was in the zone of

reasonable disagreement). Only in extreme circumstances, when the prejudice

caused by improper conduct is ―so prejudicial that expenditure of further time and

expense would be wasteful and futile,‖ will a mistrial be required. Hawkins, 135


      10
       The State argues in part that the prosecutor’s question and Investigator
Oglesby’s response were proper. Based on our analysis below, we decline to
decide whether the trial court correctly sustained appellant’s objection to the
testimony about the rifle.

                                            13
S.W.3d at 77; see Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App.

2003) (―[O]rdinarily, a prompt instruction to disregard will cure error associated

with an improper question and answer.‖), cert. denied, 542 U.S. 905 (2004).

In determining whether a trial court abused its discretion by denying a mistrial,

courts balance three factors: (1) the severity of the misconduct (prejudicial

effect), (2) curative measures, and (3) the certainty of conviction absent the

misconduct. See Hawkins, 135 S.W.3d at 77. The trial court is in the best

position to balance these factors. Orr, 306 S.W.3d at 404.

      Without elaboration, appellant contends that the trial court’s ―instruction to

disregard did not cure the error implanted in the jury’s mind.‖ 11 Appellant does

not explain how Investigator Oglesby’s answer about the presence of a rifle in the

house influenced the jury to such an extent that the instruction to disregard could

not have cured any prejudice. See id. (stating that to warrant a mistrial, an

improper question must be so clearly prejudicial that the impression it makes on

the jurors cannot be withdrawn). ―In the absence of evidence that it did not, we

presume the jury followed the trial court’s instruction to disregard the improper

question.‖ Id. at 405.


      11
        As the State argues, although appellant was concerned about
Investigator Oglesby’s testimony about the rifle, he did not make objections to
Williamson’s later repeated testimony, which was elicited by his own questions,
about the fact that the officers had found a gun.

                                        14
      The jury’s choice to convict appellant, which was necessarily based on its

disbelief of Williamson’s testimony that the methamphetamine belonged solely to

her, was not likely affected by one question and response about the presence of

a rifle in the house, because the presence of the rifle did not directly impact

Williamson’s credibility.   Also, although the State mentioned the rifle in its

opening statement, neither party discussed the presence of the rifle during

closing arguments, so Investigator Oglesby’s testimony about it was not likely the

jurors’ predominant consideration during their deliberation of appellant’s guilt.

Thus, in considering the factors stated above, we hold that the trial court did not

abuse its discretion by denying appellant’s motion for mistrial. See id. at 403–04;

Polk v. State, 170 S.W.3d 661, 668 (Tex. App.—Fort Worth 2005, pet. ref’d)

(holding that although a prosecutor repeatedly violated the trial court’s

instructions to not elicit improper testimony, the trial court did not abuse its

discretion by denying motions for mistrial when the court gave prompt

instructions to disregard the testimony). We overrule appellant’s third point.




                                        15
                                Conclusion

      Having overruled all of appellant’s points, we affirm the trial court’s

judgment.




                                               TERRIE LIVINGSTON
                                               CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER, J.; and DIXON W. HOLMAN (Senior
Justice, Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 28, 2011




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