              NUMBERS 13-13-00607-CR and 13-13-00608-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

COLE CANYON LOCKHART,                                                       Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 424th District Court
                         of Llano County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
             Memorandum Opinion by Justice Benavides

      By three issues on appeal, appellant Cole Lockhart asserts that (1) the trial court

erred in denying his motion to suppress evidence obtained from a search warrant; (2) the

trial court erred in denying his request for a jury instruction under article 38.23 of the

Texas Code of Criminal Procedure; and (3) the evidence is insufficient to sustain his
conviction for possession of methamphetamines. We affirm.

                                         I.      BACKGROUND1

        On April 5, 2012, Sheriff Bill Blackburn received a tip that an individual by the

name of Allen Stone had purchased methamphetamines from Lockhart, and Stone

subsequently died.        Acting on a tip, Llano County Sheriff Investigator Mark Burke,

Deputy John Gillespie along with his canine partner Chack, Lieutenant Brad Evans, and

Sheriff Bill Blackburn approached a travel trailer occupied by Lockhart located on the

premises of Long’s Fishing Camp2 in Llano County.                    The record shows that Sheriff

Blackburn had previously spoken to Lockhart over the telephone regarding the

investigation.

        Investigator Burke testified that upon arriving at the travel trailer, his eyes, nose,

and throat began to burn from an “ammonia” or “cat-urine type odor,” and that based

upon his training as a narcotics investigator, such a smell is “normally associated” with

the manufacture of methamphetamines. Deputy Gillespie also experienced a similar

reaction. Deputy Gillespie’s canine, Chack, performed a “free air sniff” of the exterior

front door of the travel trailer, and Chack alerted Deputy Gillepsie of a positive alert of

narcotics.

        Lockhart spoke with the sheriff’s investigators outside of the trailer.                        The

Investigators asked Lockhart for his consent to search the travel trailer, but Lockhart

refused.     After Lockhart refused, Investigator Burke inspected a 55-gallon drum


         1 This appeal was transferred from the Third Court of Appeals pursuant to a docket equalization

order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
Ch. 46, 2015 R.S.).
        2   Long’s Fishing Camp was described as a “recreation area that’s frequented by lots of people from
lots of different areas.”

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trashcan located in the front of the travel trailer.            Inside of the trashcan, Investigator

Burke found: (1) an empty container of Good Sense Iodine, which he testified is used in

the manufacture of drugs; (2) coffee filters, which he testified is used in the manufacture

of drugs to “filter substances out from other substances”; and (3) Wal-Finate, a cold

tablet which contains pseudoephedrine, a common ingredient used in the manufacture of

drugs.    Investigator Burke testified that the iodine, coffee filters, and cold tablets were

found together inside of a discarded Chicken Express bag located inside of the trashcan.

         Using the information gathered at the scene, Investigator Burke subsequently

applied for and received a warrant to search the travel trailer. After executing the

search warrant on the travel trailer, investigators found, among other things: (1) a Marlin

.22-caliber rifle; (2) a tool bag with chemicals in it; (3) glass pipes typically used for

smoking methamphetamines; and (3) a substance weighing 0.27 grams that tested

positive for methamphetamines.

         The State indicted Lockhart for: (1) unlawful possession of a firearm by a felon, a

third-degree felony, see TEX. PENAL CODE ANN. § 46.04 (West, Westlaw through Ch. 46,

2015 R.S.), enhanced by a prior felony conviction 3, see id. § 12.42(a) (West, Westlaw

through Ch. 46, 2015 R.S.); and (2) possession of methamphetamine, a substance listed

in Penalty Group 1, in an amount of less than one gram, a state-jail felony. See TEX.

HEALTH & SAFETY CODE ANN. § 481.115(b) (West, Westlaw through Ch. 46, 2015 R.S.).

Lockhart pleaded not guilty and was tried before a jury on guilt-innocence, as well as on

punishment. The jury found Lockhart guilty as charged for both offenses4 and assessed


         3 At trial, Lockhart stipulated to his prior conviction for manufacture of a controlled substance, a

first-degree felony. See TEX. PENAL CODE ANN. § 481.112(a), (d) (West, Westlaw through Ch. 46, 2015
R.S.).
         4 Appellate cause number 13-13-00607-CR is assigned to the unlawful possession of a firearm



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punishment at ten years and one day imprisonment with the Texas Department of

Criminal Justice—Institutional Division (TDCJ-ID) for the unlawful possession of a

firearm by a felon conviction and two years’ confinement with TDCJ-ID for the

possession of methamphetamine conviction, both sentences to run concurrently.

This appeal followed.

                                II.   MOTION TO SUPPRESS

      By his first issue, Lockhart contends that the trial court erred by denying his

motion to suppress the evidence seized from the travel trailer.

      A. Standard of Review

      In reviewing a trial court’s ruling on a motion to suppress, we must view the

evidence in the light most favorable to the trial court’s ruling.   Johnson v. State, 414

S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008). Motions to suppress are reviewed pursuant to a bifurcated

standard under which the trial judge’s determinations of historical facts and mixed

questions of law and fact that rely on credibility are granted almost total deference when

supported by the record.   Johnson, 414 S.W.3d at 192.      But when mixed questions of

law and fact do not depend on the evaluation of credibility and demeanor, we review the

trial judge’s ruling de novo.   Id. (citing State v. Kerwick, 393 S.W.3d 270, 273 (Tex.

Crim. App. 2013); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

      B. Discussion

      Lockhart bases his suppression argument solely on the grounds that the sheriff’s



conviction, and appellate cause number 13-13-00608-CR is assigned to the possession of
methamphetamine conviction.


                                            4
investigators conducted an unlawful search upon his property prior to obtaining the

warrant.    Relying heavily on Florida v. Jardines, 133 S.Ct. 1409 (2013), Lockhart argues

that the sheriff’s investigators entered his property with the intent to search his premises

in violation of the Fourth Amendment.        See id. at 1417.     Stated another way, the

question before us is whether the sheriff’s investigators’ conduct in this case was an

objectively reasonable search. The answer to this question depends upon whether the

officers had an implied license to enter the area outside of Lockhart’s travel trailer, which

in turn depends upon the purpose for which they entered.             See id.   As noted in

Jardines, “a police officer not armed with a warrant may approach a home and knock,

precisely because that is no more than any private citizen might do.” Id. at 1416 (citing

Kentucky v. King, 131 S.Ct. 1849, 1862 (2011)) (internal quotation).

       In this case, the trial court’s findings of fact shed some light on this inquiry. The

trial court made the following relevant findings:

       2.      ‘On April 5, 2012, an individual named Amanda Robinson reported
               to Llano County Sheriff’s Office that Cole Lockhart . . . [was] cooking
               methamphetamine at the subject property. Amanda Robinson
               reported that she witnessed her friend, Allen Stone, purchase
               methamphetamine from the Defendant and Amanda Meager at the
               subject property on April 4, 2012.

       3.      On April 5, 2012 [Lockhart] contacted Llano County Sheriff . . .
               Blackburn by telephone regarding the death of Allen Stone which
               had occurred on April 5, 2012.

       4.      On April 5, 2012, at 10:45 p.m., Llano County Sheriff . . . Blackburn,
               together with other deputies, went to the subject property to speak
               with [Lockhart]. On arrival, [Lockhart] was not present. Sheriff
               Blackburn contacted [Lockhart] by cell phone and asked [Lockhart]
               to return to the subject property to talk. [Lockhart] arrived at the
               subject property approximately 10 minutes later.

       5.      [Lockhart] spoke with Sheriff Blackburn about the death of Allen
               Stone and about how [Lockhart] knew of individuals that were

                                              5
              selling narcotics to Allen Stone.

       6.     On arrival at the subject property at 11:30 p.m. Deputy John
              Gillespie detected a “cat urine” odor coming from the subject
              property causing his eyes, nose, and upper throat to burn slightly.
              Deputy Gillespie experienced the same symptoms and reaction on
              September 2, 2011, when deputies had located precursor chemicals
              and a finished batch of methamphetamine (later confirmed to
              contain methamphetamine by the DPS laboratory).

              ....

       10.    When confronted with the information received by Amanda
              Robinson[,] [Lockhart] denied cooking or selling methamphetamine.
              At approximately 11:55 p.m. [Lockhart] declined to give consent to
              search the subject property stating that he did not occupy the travel
              trailer.

       11.    The owner of Long’s Fish[ing] Camp and the travel trailer . . . told
              Sheriff Blackburn that [Lockhart] was the occupant of the travel
              trailer and had occupied the travel trailer for several days.

       This record shows that Sheriff Blackburn and his deputies approached Lockhart’s

trailer with the purpose of investigating Stone’s death and the dealing of drugs to Stone,

and not to conduct a search of Lockhart’s trailer. Upon his arrival at the trailer, Lockhart

did not consent to the deputies’ request to search the travel trailer, but did not ask the

officers to leave either. Furthermore, Lockhart voluntarily spoke with Sheriff Blackburn

about Stone’s death and about individuals who may have sold drugs to Stone.        Viewing

this evidence in the light most favorable to the trial court’s ruling, we conclude that the

sheriff’s investigators conducted an objectively reasonable search and did not enter

Lockhart’s property with the initial intent to search. Thus, the facts in this case are

factually distinguishable from Jardines. Accordingly, the trial court did not err in denying

Lockhart’s motion to suppress.    See id. at 1416–17. Lockhart’s first issue is overruled.




                                             6
                              III.         ARTICLE 38.23 INSTRUCTION

         By his second issue, Lockhart asserts that the trial court reversibly erred by

denying his request for a jury instruction under article 38.23 of the code of criminal

procedure.     See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West, Westlaw through Ch. 46,

2015 R.S.).

A.       Standard of Review

         Our first duty in analyzing a jury-charge issue is to decide whether error exists.

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we then

analyze that error for harm.         Id.    Preservation of charge error does not become an

issue until we assess harm.          Id. (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex.

Crim. App. 2003)).

         In assessing harm we first examine whether the defendant objected to the

erroneous charge.      Id.    If the defendant did not object, “then he must show that the

error was ‘fundamental’ and that he suffered ‘egregious harm.’”           Reeves v. State, 420

S.W.3d 812, 816 (Tex. Crim. App. 2013) (quoting Almanza v. State, 686 S.W.2d 157,

171 (Tex. Crim. App. 1985)). The appellant must show “actual, rather than theoretical,

harm.”     Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).                   Some

examples of egregious harm include those errors that “affect the very basis of the case,”

“deprive the defendant of a valuable right, or vitally affect a defensive theory.”           Id.

(internal quotations and citation omitted). This particular standard is a “high and difficult

standard which must be borne out of by the trial record.”         Reeves, 420 S.W.3d at 816.

         If, however, the defendant properly objected, then he will obtain relief if the record

shows that he suffered “some harm.”            Id. This standard requires us to consider (1) the


                                                   7
jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence,

and (4) other relevant factors revealed by the record as a whole.      Wooten v. State, 400

S.W.3d 601, 606 (Tex. Crim. App. 2013).

B.     Applicable Law

       A defendant's right to the submission of jury instructions under article 38.23(a) is

limited to disputed issues of fact that are material to his claim of a constitutional or

statutory violation that would render evidence inadmissible.          Madden v. State, 242

S.W.3d 504, 509–10 (Tex. Crim. App. 2007). The terms of the statute are mandatory,

and when an issue of fact is raised, a defendant has a statutory right to have the jury

charged accordingly.     Id. at 510 (internal citation omitted).      The only question is

whether under the facts of a particular case an issue has been raised by the evidence so

as to require a jury instruction. Id. Where no issue is raised by the evidence, the trial

court acts properly in refusing a request to charge the jury.     Id. (citing Murphy v. State,

640 S.W.2d 297, 299 (Tex.Crim.App.1982)). Before a defendant is entitled to an article

38.23 instruction, (1) the evidence heard by the jury must raise an issue of fact; (2) the

evidence on that fact must be affirmatively contested; and (3) the contested factual issue

must be material to the lawfulness of the challenged conduct in obtaining evidence. Id.

       Without a genuine dispute about a material fact, the legality of the conduct is

determined by the trial judge alone, as a question of law. Id. And if other facts, not in

dispute, are sufficient to support the lawfulness of the challenged conduct, then the

disputed fact issue is not submitted to the jury because it is not material to the ultimate

admissibility of the evidence. Id. In other words, the disputed fact must be an essential

one in deciding the lawfulness of the challenged conduct.       Id.


                                            8
C.     Discussion

       Here, Lockhart argues that disputed material facts existed at trial regarding

whether access to Long’s Fishing Camp by police was allowed despite a “No

Trespassing” sign located on the front of the camp property. We disagree.           There was

no evidence that Lockhart owned the recreational fishing camp property that he alleges

the sheriff’s investigators trespassed on.    Furthermore, there is no disputed evidence to

show that Lockhart sought to exclude the sheriff’s investigators from his trailer or the

fishing camp in general.    To the contrary, Lockhart engaged in conversation with Sheriff

Blackburn near the travel trailer that he occupied without once asking Sheriff Blackburn

or the other deputies to leave the premises. Finally, the evidence is undisputed that

Long’s Fishing Camp is a “recreation area” that is frequented by the public who pay

access fees to the property.    Deputy Burke testified that the “No Trespassing” sign was

likely intended for individuals who wanted to fish on the camp without paying an access

fee.

       Based on the record, we agree with the trial court’s conclusion that no genuine

dispute about a material fact existed to challenge the legality of the sheriff’s investigators’

entrance onto Long’s Fishing Camp, or the area around the trailer that Lockhart occupied.

As a result, the trial court did not err in denying Lockhart’s request for an article 38.23 jury

instruction. See id. Because we find that no error exists, our analysis ends here. See

Ngo, 175 S.W.3d at 743. Lockhart’s second issue is overruled.

                               IV.    SUFFICIENCY CHALLENGE

       By his final issue, Lockhart asserts that the evidence is insufficient to sustain his

conviction for possession of methamphetamines.


                                               9
A.     Standard of Review

       In reviewing sufficiency of evidence to support a conviction, we consider all of the

evidence in the light most favorable to the verdict and determine whether, based on that

evidence and reasonable inferences therefrom, a rational fact finder could have found

the essential elements of the crime beyond a reasonable doubt.         Winfrey v. State, 393

S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex.

Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see Brooks

v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the

evidence in the light most favorable to the verdict, we defer to the fact-finder’s credibility

and weight determinations because the fact-finder is the sole judge of the witnesses’

credibility and the weight to be given to their testimony.   Brooks, 323 S.W.3d at 899.     It

is unnecessary for every fact to point directly and independently to the guilt of the

accused; it is enough if the finding of guilty is warranted by the cumulative force of all

incriminating evidence. Winfrey, 393 S.W.3d at 768.

       The elements of the offense are measured as defined by a hypothetically correct

jury charge.   Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).      Such a charge is one that

accurately sets out the law, is authorized by the charging instrument, does not

unnecessarily increase the State's burden of proof or unnecessarily restrict the State's

theories of liability, and adequately describes the particular offense for which the

defendant was tried. Id.     Under a hypothetically correct jury charge, Lockhart is guilty

of possession of methamphetamines if he knowingly or intentionally possessed

methamphetamines in an amount of less than one gram.            See TEX. HEALTH & SAFETY


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CODE ANN. § 481.115(b).

B.     Discussion

       Lockhart solely challenges the sufficiency of the evidence to sustain his conviction

on the element of unlawful possession on the ground that he was not affirmatively linked

to the methamphetamines found in the travel trailer. We disagree.

       To prove unlawful possession of a controlled substance, the State must prove that:

(1) the accused exercised control, management, or care over the substance; and (2) the

accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d

402, 405–06 (Tex. Crim. App. 2005).           Under the so-called “affirmative links” rule,

whether this evidence is direct or circumstantial, “it must establish, to the requisite level of

confidence, that the accused’s connection with the drug was more than just fortuitous.”

Id. (citing Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). Thus, when the

accused is not in exclusive possession of the place where the substance is found, it

cannot be concluded that the accused had knowledge of and control over the contraband

unless there are additional independent facts and circumstances which affirmatively link

the accused to the contraband. Id. at 406 (internal citation and quotations omitted).

       Courts have developed numerous non-exclusive factors to determine whether the

evidence is sufficient to affirmatively link the accused to the controlled substance. These

factors include whether: (1) the contraband was in plain view or recovered from an

enclosed place; (2) the accused was the owner of the premises or had the right to

possess the place where the contraband was found; (3) the accused was found with a

large amount of cash; (4) the contraband was conveniently accessible to the accused, or

found on the same side of the vehicle as the accused was sitting; (5) the contraband was


                                              11
found in close proximity to the accused; (6) a strong residual odor of the contraband was

present; (7) the accused possessed other contraband when arrested; (8) paraphernalia to

use the contraband was in view, or found on the accused; (9) the physical condition of the

accused indicated recent consumption of the contraband in question; (10) conduct by the

accused indicated a consciousness of guilt; (11) the accused attempted to escape or flee;

(12) the accused made furtive gestures; (13) the accused had a special connection to the

contraband; (14) the occupants of the premises gave conflicting statements about

relevant matters; (15) the accused made incriminating statements connecting himself to

the contraband; (16) the quantity of the contraband; and (17) the accused was observed

in a suspicious area under suspicious circumstances. Lassaint v. State, 79 S.W.3d 736,

740–41 (Tex. App.—Corpus Christi 2002, no pet.) (internal citations omitted). The

number of factors is not as important as the logical force the factors have in establishing

the elements of the offense. Id.

       Here, Deputy Burke testified that a “named cooperating individual” had provided

the Llano County sheriff’s office with a tip that an individual who had died in the county the

previous night had purchased methamphetamines from Lockhart. Tips such as this

have been held to have sufficient probative value to establish an affirmative link between

an accused and the contraband found in his home. See Poindexter, 153 S.W.3d at 409.

Additionally, Deputy Burke further testified that Lockhart and Amanda Meager were the

only individuals who had access to the trailer where the methamphetamines were found.

See Lassaint, 79 S.W.3d at 740–41 (Factor Two). Once inside the trailer, sheriff’s

investigators found a duffle bag with an eyeglasses prescription issued to Lockhart, as

well as parts to a chainsaw. The evidence also shows that Lockhart cut cedar trees for


                                             12
landowners in the area. See id. (Factor Two). Furthermore, the evidence shows that

the baggy of methamphetamines and a pipe used to smoke methamphetamines was

seized from the “rafters” of the travel trailer. See id. (Factor One). Finally, Deputy

Burke testified that a strong residual “cat urine” odor permeated the travel trailer, which

indicated the manufacture of methamphetamines. See id. (Factor Six).

       After considering all of the evidence in the light most favorable to the verdict, we

determine that based on that evidence and reasonable inferences therefrom, a rational

fact finder could have found that sufficient evidence affirmatively links Lockhart to the

contraband to sustain his conviction for possession of methamphetamines.          See id.;

see also Winfrey, 393 S.W.3d at 768. We overrule Lockhart’s third issue.

                                       V. Conclusion

   We affirm the trial court’s judgments.




                                                        GINA M. BENAVIDES,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
17th day of September, 2015.




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