                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-10-00154-CR

HARRY BROWN HARDAWAY,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 13th District Court
                             Navarro County, Texas
                            Trial Court No. 32424-CR


                          MEMORANDUM OPINION


      Harry Brown Hardaway was convicted of possession of a controlled substance

with the intent to deliver in a drug free zone. TEX. HEALTH & SAFETY CODE ANN. §§

481.112, 481.134 (West 2010). He was sentenced to 10 years in prison. Because the

evidence is sufficient to support the verdict and because the trial court did not err in

failing to grant Hardaway’s motion for mistrial, we affirm the trial court’s judgment.

                             SUFFICIENCY OF THE EVIDENCE

      Hardaway first contends the evidence was both legally and factually insufficient

to support his conviction.     Because the Court of Criminal Appeals has recently

determined that the Jackson v. Virginia standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a reasonable

doubt, we address Hardaway’s sufficiency issue only under this standard. See Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); see also Jackson v. Virginia, 443 U.S. 307,

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Hardaway argues that the evidence is insufficient

because the State failed to link Hardaway to the contraband found. He does not take

issue on appeal with the type of substance or amount found, whether it was intended to

be delivered, or whether it was found within a drug free zone. We limit our discussion

accordingly.

       Law

       Under the Jackson standard, "the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt." Id.; Moff v.

State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). In applying the Jackson sufficiency

review, we "must consider all evidence which the jury was permitted, whether rightly

or wrongly, to consider." Moff, 131 S.W.3d at 488 (quoting Thomas v. State, 753 S.W.2d

688, 695 (Tex. Crim. App. 1988). We consider all evidence actually admitted at trial and

give it whatever weight and probative value it could rationally convey to a jury. Moff,

131 S.W.3d at 489.

       In a possession-of-a-controlled-substance case, the State must prove, either

directly or circumstantially, that the accused exercised actual care, custody, control, or

management over the contraband and that the accused knew the matter possessed was

contraband. TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West 2010); Poindexter v.

Hardaway v. State                                                                       Page 2
State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). When there is no evidence that the

accused was in exclusive control of the place where the contraband was found, the State

must offer additional, independent facts and circumstances linking the accused to the

contraband. Id. at 406. Mere presence at the location where contraband is found is,

thus, insufficient by itself to establish actual care, custody, or control of those drugs.

Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). However, presence or

proximity when combined with other evidence, either direct or circumstantial (e.g.,

"links"), may well be sufficient to establish that element beyond a reasonable doubt. Id.

It is the logical force of the combined pieces of circumstantial evidence coupled with

reasonable inferences from them, not the number of links, which supports a jury's

verdict. Id. at 166.

       Facts

       Detective Morris Steward, Captain Elmer Tanner, and Detective Stan Farmer, all

with the Navarro County Sheriff’s Office, received a call on a narcotics investigation

and arrived at the specified location where they saw two young men, Hardaway and

Darrius Sparks, standing in front of a burned, uninhabitable house. Hardaway was

wearing a baggy jacket, and Steward could see that he had a lot of money in his pocket.

Each officer believed that the money contained small bills, such as tens and twenties.

Each officer testified that a large amount of money in small bills was, based on their

training and their experience, consistent with drug sales. Sparks was also found to have

money in his possession.

       Tanner conducted a protective sweep of the area and located a cigarette box

about 10 to 20 feet from Hardaway and Sparks that contained what field tested to be

Hardaway v. State                                                                   Page 3
cocaine in an amount more than what an individual would use. What brought the box

to the attention of Tanner was that it was a clean box that did not appear to have been

exposed to the elements for any length of time. Each officer testified that based on their

training and experience it was not unusual for an amount of drugs to be located at a

distance from a dealer because either the dealer did not want to be caught by law

enforcement with the drugs on him or the dealer did not want a potential buyer to

know where the drugs were located. A potential buyer would be asked to “make the

block,” and the dealer would retrieve the drugs while the buyer was not watching.

Both Hardaway and Sparks had the same brand of cigarettes on them at the time of

their encounter with the officers as the box found containing the cocaine. Neither

Hardaway nor Sparks claimed to know anything about the cocaine. Both Hardaway

and Sparks were arrested at the scene.

       After Hardaway’s arrest, the officers took the money seized from both Sparks

and Hardaway and secreted each amount separately in an extra room at the Sheriff’s

Office. A drug dog was called in and alerted to the areas where both amounts of money

were located. A second dog was called in for training purposes only and alerted to the

same areas.     Both dogs were trained to alert to the odors of marijuana, cocaine,

methamphetamine, and heroin. The dogs’ handler, Deputy Constable Richard Thomas,

who had been working with narcotics dogs since 1989, agreed that there was no way to

determine which of the four odors the dogs alerted to. Thomas also agreed that there

was a possibility that the odor of a narcotic could still be on the money even if the most

recent possessor of the money did not handle any narcotics.



Hardaway v. State                                                                   Page 4
        Conclusion

        On appeal, and at trial, Hardaway focuses on what links to the cocaine were not

present when Hardaway was arrested, such as the cocaine was not in Hardaway’s

possession, Hardaway was not under the influence of drugs at the time of his arrest,

and he made no attempt to flee, etc. He also contends that the evidence that might be

considered a link to the cocaine, such as the money and the drug dog alert, were of no

probative value. As noted earlier, we focus on the logical force of the combined pieces

of circumstantial evidence, coupled with reasonable inferences from them, which

supports a jury's verdict. After reviewing the evidence under the appropriate standard,

we find the evidence to be sufficient to support the verdict. Hardaway’s sufficiency

issue is overruled.

                                 MOTION FOR MISTRIAL

        In his only remaining issue, Hardaway contends that the trial court erred when it

failed to grant his motion for mistrial. The request for a mistrial followed testimony by

a co-defendant, Darrius Sparks. Sparks was called by Hardaway to testify that when

the Sheriff’s officers arrived at the scene, Hardaway had just arrived at the scene as

well.   On re-cross-examination, the following exchange between the State, Sparks,

defense counsel, and the Court occurred.

              State:        Do you not remember telling me that when you
                            would sell those drugs that were, that day that Harry
                            would go inside the house?

              Witness:      Yeah, I never said that house. I said my grandfather’s
                            house next door.

              State:        He would go inside your grandfather’s house; right?


Hardaway v. State                                                                    Page 5
              Witness:   Yes, sir.

              State:     So how could he be there for just two minutes when
                         you’re doing, when you’re selling drugs and he’s
                         going in – he just happened to go inside every time
                         you were selling drugs?

              Witness:   It wasn’t his day. I said my grandfather’s house.
                         When I caught this charge, I was next door at that
                         house. And Harry had just walked up, that’s what I
                         told him.

              Defense:   Okay, your Honor, then I’m going to renew my
                         objection to relevance because I think that we’re
                         talking about some other time, some other, some
                         other deal. We’re not talking here – are you talking
                         about that day or are you talking about some other
                         time?

              Witness:   He just asked me, I was just asked if Harry had been
                         around once when I was selling drugs.

              Defense:   Okay. Thank you. But the testimony you are giving
                         right now has nothing to do with that day, does it?

              Witness:   No, sir.

              State:     We’ll move on, judge.

              Court:     All right. I’ll sustain it. Do you want an instruction,
                         [counsel]?

              Defense:   Yeah, I want an instruction, your Honor.

              State:     We’ll, actually we’ll withdraw the question and then
                         we’ll ask that -

              Defense:   Your Honor, I ask for, one, I want to renew my
                         objection.

              Court:     Okay.

              Defense:   Is that objection granted to the relevance?

              Court:     That’s, if we’re – are we talking about another day?

Hardaway v. State                                                                  Page 6
              Defense:     Yeah, things that, apparently it looks to me that –

              Court:       That is granted.

              Defense:     And I want to ask that it be stricken from, that his
                           testimony with regard to things from other than that
                           day be stricken from the record.

              Court:       It will be stricken from the record. The jury is
                           instructed to disregard any testimony about any other
                           day other than the day in question which is –

                                               ***

              Defense:     February 6th, 2009.

              Court:       Okay.

              Defense:     And I’m further going to ask for a mistrial, your
                           Honor.

              Court:       That mistrial is denied.

       When the trial court sustains a defendant’s objection, grants a requested

instruction to disregard, but denies a motion for mistrial, the issue is whether the

refusal to grant the mistrial was an abuse of discretion. Hawkins v. State, 135 S.W.3d 72,

76-77 (Tex. Crim. App. 2004). Only in extreme circumstances, where the prejudice is

incurable, will a mistrial be required. Id. at 77. Although this case does not present an

improper argument issue, we still use the Mosley factors in determining whether the

answers given in response to the prosecutor’s questions warranted a mistrial: (1)

severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's

remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary

instruction by the judge), and (3) the certainty of conviction absent the misconduct (the



Hardaway v. State                                                                   Page 7
strength of the evidence supporting the conviction). Ramon v. State, 159 S.W.3d 927, 929

(Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

       Assuming without deciding that the question asked by the State was improper,

the impropriety was not severe. The State’s question could be read as asking what

Hardaway had done the day of the offense.            It was Hardaway’s counsel that

emphasized the State’s question may have been about prior activities. Even the trial

court had to clarify what day was being referred to in the question. Further, the trial

court struck the testimony and instructed the jury to disregard any testimony about any

other day other than the day of the offense. This instruction was clear and specific.

Finally, the evidence against Hardaway, even though circumstantial, was sufficient to

convict Hardaway even without the question asked by the State. Accordingly, the trial

court did not abuse its discretion in denying Hardaway’s motion for mistrial. This issue

is overruled.

                                      CONCLUSION

       Having overruled each issue properly presented on appeal, we affirm the

judgment of the trial court.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 30, 2011
Do not publish
[CR25]


Hardaway v. State                                                                      Page 8
