                            PD-1598-15

                             NO. __________

                              IN THE
                   COURT OF CRIMINAL APPEALS
                             OF TEXAS
___________________________________________________________________

                      KRISTOPHER DONALD MIXON

                                Petitioner

                                    v.

                         THE STATE OF TEXAS

                  Petition in Cause No. 23,963-C from the
         251st Judicial District Court of Randall County, Texas and
      Case No. 07-15-00094-CR in the Court of Appeals for the Seventh
                     Supreme Judicial District of Texas

___________________________________________________________________


             PETITION FOR DISCRETIONARY REVIEW


                                  JAMES B. JOHNSTON
                                  EASTERWOOD, BOYD & SIMMONS, PC
                                  P. O. Box 273
                                  Hereford, Texas 79045
                                  (806) 364-6801
                                  (806) 364-2526 – telefax
                                  Email: bryan@ebs-law.net
                                  State Bar No: 10838200
  December 11, 2015               ATTORNEY FOR PETITIONER,
                                  KRISTOPHER DONALD MIXON



                                    1
                      NAME OF ALL PARTIES TO THE
                     TRIAL COURT’S FINAL JUDGMENT

       Below is a complete list of the identity of the judge and all parties to the trial
court’s judgment, and all trial and appellate counsel:

1.    Hon. Ana Estevez, Trial Court Judge
      251st Judicial District Court – Randall County
      2309 Russell Long Blvd.
      Canyon, Texas 79015

2.    Petitioner, KRISTOPHER DONALD MIXON
      7407 Dreyfuss
      Amarillo, Texas 79121

3.    Petitioner’s Trial Counsel
      Lynda Smith
      Attorney at Law
      3611 Soncy Road, Suite 4C
      Amarillo, Texas 79119

4.    Petitioner’s Appellate Counsel
      James B. Johnston
      EASTERWOOD, BOYD & SIMMONS, PC
      P.O. Box 273
      Hereford, Texas 79045

5.    Trial Counsel for the State of Texas
      Charles D. Blount
      Randall County District Attorney’s Office
      2309 Russell Long Blvd., Ste. 120
      Canyon, Texas 79015




                                            2
6.   Appellate Counsel for the State of Texas
     Warren L. Clark
     Randall County District Attorney’s Office
     2309 Russell Long Blvd., Ste. 120
     Canyon, Texas 79015




                                       3
                                          TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL .............................................. 2
TABLE OF CONTENTS ........................................................................................... 4
INDEX OF AUTHORITIES ...................................................................................... 5
STATEMENT REGARDING ORAL ARGUMENT ................................................ 7
STATEMENT OF THE CASE .................................................................................. 8
STATEMENT OF PROCEDURAL HISTORY ........................................................ 9
GROUNDS FOR REVIEW ..................................................................................... 10

         1.       When reviewing the issue of forfeiture of the
                  constitutional due process right to an uncoerced
                  jury verdict, the court of appeals must first
                  categorize the alleged error as either absolute,
                  waivaible by affirmative action, or waivable by
                  inaction. To summarily overrule the complaint
                  because of the absence of a specific objection
                  constitutes error in the court of appeals analysis.

         2.       The due process right to an uncoerced jury verdict
                  falls under the category of absolute Constitutional
                  rights.

         3.       Any language in a supplemental Allen jury charge
                  which implies the obligation of the defendant to
                  provide proof beyond a reasonable doubt is coercive.

ARGUMENT ........................................................................................................... 10
PRAYER FOR RELIEF ........................................................................................... 15
CERTIFICATE OF COMPLIANCE ....................................................................... 16
CERTIFICATE OF SERVICE ................................................................................ 16
APPENDIX .............................................................................................................. 18




                                                            4
                                     INDEX OF AUTHORITIES

                                                     CASES


Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013)..................................... 12
Daye v. Attorney Gen. of New York, 696 F.2d 186 (2nd Cir. 1982) .................. 12, 13
Garza v. State, 435 S.W.3d 258 (Tex. Crim. App. 2014) ........................................ 11
Green v. United States, 309 F.2d 852 (5th Cir. Fla. 1962) ........................................ 5
Smalls v. Batista, 191 F.3d 272 (2d Cir. N.Y. 1999) ............................................... 14
Smalls v. Batista, 6 F. Supp.2d 211 (S.D.N.Y. 1988) .............................................. 12
United States v. Burgos, 55 F.3d 933 (4th Cir. S.C. 1995) ...................................... 14



                                                 STATUTES

TEX. R. APP. P. 33.1(a) .......................................................................................... 11
TEX. CONST. ART. V, SECTION 10 .................................................................... 12
UNITED STATES CONSTITUTION, Amendment 6 ............................................ 12
UNITED STATES CONSTITUTION, Amendment 14 .......................................... 12




                                                         5
                               NO. ___________

                                    IN THE

                      COURT OF CRIMINAL APPEALS

                                  OF TEXAS

___________________________________________________________________

                      KRISTOPHER DONALD MIXON

                                   Petitioner

                                       v.

                           THE STATE OF TEXAS


                    Petition in Cause No. 23,963-C from the
           251st Judicial District Court of Randall County, Texas and
        Case No. 07-15-00094-CR in the Court of Appeals for the Seventh
                       Supreme Judicial District of Texas


___________________________________________________________________



               PETITION FOR DISCRETIONARY REVIEW

            TO THE HONORABLE JUDGES OF THE COURT OF
                   CRIMINAL APPEALS OF TEXAS:

      KRISTOPHER DONALD MIXON petitions the Court to review the judgment

affirming his conviction for the second degree felony offense of possession of a


                                       6
controlled substance (methamphetamine), and punishment assessed at eight (8) years

confinement in the Institutional Division of the Texas Department of Criminal Justice,

and the judgment of the Seventh Court of Appeals affirming that conviction.

               STATEMENT REGARDING ORAL ARGUMENT

      This is a published opinion and may be used as precedent in future appellate

decisions. Oral argument would be helpful to the Court for the purpose of discussing

whether the Allen charge as used in this State continues to be viable and if so, whether

a more bright line delineation of its proper use is necessary. There exists confusion

among the appellate courts of this state regarding the extent to which trial courts may

vary the language in an Allen charge from that contained in the traditional Allen jury

charge as set out by the United States Supreme Court. If the Allen charge is to be of

continuous validity in this State, a more bright line instruction of what language may

be included and what language may be excluded in the Allen charge is needed. This

would help eliminate much of the confusion in the application of the law to Allen

charges, would eliminate the subjective application of the charge by appellate courts,

and would give more effective direction to trial counsel for defendants who must

respond at trial to the Allen charge.




                                           7
                           STATEMENT OF THE CASE

      Petitioner was convicted by a jury of possession of a controlled substance

(methamphetamine). The Seventh Court of Appeals in its opinion in this case

determined that (1) Petitioner has waived his complaint at the trial court level

concerning the error in submitting the Allen charge [Court of Appeals Opinion, p. 9];

and (2) the trial court did not err in submitting the Allen charge at issue because it was

not coercive. [Court of Appeals Opinion, p. 12].

      The Seventh Court of Appeals summarily overruled Petitioner’s Constitutional

challenge concerning the Allen charge, claiming that Petitioner failed to specifically

lodge his Constitutional challenge to the charge at trial [Court of Appeals Opinion, p.

9]. The court of appeals erred in this analysis, because the complaint on appeal falls

under the category of absolute rights (which cannot be forfeited by inaction alone) or at

the very least rights that must be waived by a waiver which is affirmatively, plainly,

freely and intelligently made. The right of due process through an uncoerced jury

verdict is not among the waivable constitutional rights.

      The Seventh Court of Appeals also ruled that there was no error in the trial

court’s submission of the Allen charge, so Petitioner’s complaint that the error was

harmful was not addressed. The error of the court of Appeals analysis of Petitioner’s

first and second appellate complaints is that the specific variance by the trial court from


                                            8
that Allen charge language which Texas appellate courts have deemed acceptable

resulted in improper coercion, contrary to the finding of the Seventh Court of Appeals.

The Allen charge in this case implied that the Petitioner had an obligation to offer

proof beyond a reasonable doubt that he was not guilty of the charge in the indictment.

                  STATEMENT OF PROCEDURAL HISTORY

      Petitioner pleaded not guilty [RR Vol. 2, p. 112] to the offense of possession of

a controlled substance (methamphetamine) as charged in the indictment [CR p. 8]. The

case was tried to a jury, which found Petitioner guilty as charged in the indictment [RR

Vol. 3, p. 148]. Petitioner elected to have the trial judge assess his punishment, and the

trial court sentenced Petitioner in open court on December 16, 2014 to a term of eight

(8) years in the Texas Department of Criminal Justice – Institutional Division [RR Vol.

4, p. 70]. Sentence was imposed in open court on December 16, 2014 [RR Vol. 4, p.

70], and the court’s Nunc Pro Tunc Judgment of Conviction by Jury was signed on

January 13, 2015 [CR pp. 114-116]. The trial court certified Petitioner’s right to appeal

the judgment [CR p. 100]. Petitioner filed a Motion For New Trial and Motion in

Arrest of Judgment [CR 104-106; amended at CR 119-121]. In his amended motion for

new trial, Petitioner raised the issue that the Allen charge given by the trial court was

coercive. The amended motion for new trial was overruled by operation of law.

Petitioner filed a timely notice of appeal [CR p. 136].


                                            9
      The Seventh Court of Appeals affirmed Petitioner’s conviction on November 10,

2015. Mixon v. State, 2015 Tex. App. LEXIS 11645 (Tex. App. Amarillo November

10, 2015). Petitioner has filed a motion for rehearing concurrently with this petition,

along with a motion to extend the time to file the motion for rehearing. Petitioner

requested an extension of the time to file a petition for discretionary to August 5, 2015,

which request was granted.

                    GROUNDS FOR REVIEW - RESTATED

      When reviewing the issue of forfeiture of the constitutional
      due process right to an uncoerced jury verdict, the court of
      appeals must first categorize the alleged error as either
      absolute, waivaible by affirmative action, or waivable by
      inaction. To summarily overrule the complaint because of
      the absence of a specific objection constitutes error in the
      court of appeals analysis.

      The due process right to an uncoerced jury verdict falls
      under the category of absolute Constitutional rights.

      Any language in a supplemental Allen jury charge which
      implies the obligation of the defendant to provide proof
      beyond a reasonable doubt is coercive.

                                     ARGUMENT

Forfeiture of right to complain due to lack of trial objection

      In its decision, the Seventh Court of Appeals reviewed Petitioner’s third ground

for appeal and stated:



                                           10
      “When in response to the jury’s note, the trial court proposed the supplemental
      charge, appellant objected as follows: ― ‘Judge, I just need to object to it. I will
      object. I would propose that they just be asked if they have any possibility of
      reaching a verdict.’ The State responds, and we agree, that appellant’s very
      general objection to the supplemental charge when it was proposed failed to
      preserve any challenge to the constitutional concerns he now raises on appeal.
      Only by reading the objection most liberally would the objection preserve any
      error on appeal. At any rate, there having been no mention whatsoever of any
      constitutional challenge to the supplemental charge, we conclude that appellant
      failed to preserve any constitutional issues concerning the supplemental charge
      and summarily overrule that point of error. See TEX. R. APP. P. 33.1(a).”

      [Court of Appeals Opinion p. 9, note 2]

      The rights of a defendant fall into three categories. The first category of rights

are those that are widely considered so fundamental to the proper functioning of the

adjudicatory process that they cannot be forfeited by inaction alone. These are

considered absolute rights. The second category of rights is comprised of rights that are

not forfeitable—they cannot be surrendered by mere inaction, but are waivable if the

waiver is affirmatively, plainly, freely, and intelligently made. The trial judge has an

independent duty to implement these rights absent any request unless there is an

effective express waiver. Finally, the third category of rights are forfeitable and must

be requested by the litigant. Many rights of the criminal defendant, including some

constitutional rights, are in this category and can be forfeited by inaction.” Garza v.

State, 435 S.W.3d 258, 259 (Tex. Crim. App. 2014).




                                           11
      The right of due process through an uncoerced jury verdict, being grounded in

the Sixth and Fourteenth Amendments to the United States Constitution and in

ARTICLE V, SECTION 10 of The Texas Constitution, is not among the waivable

constitutional rights. The trial court’s submission of the Allen charge in this case

implicates a constitutional right because it revolves around the issue of coercion.

Smalls v. Bautista, 6 F. Supp.2d 211, 218 (S.D.N.Y. 1988). A defendant has a due

process right to an uncoerced jury verdict. Id., at 218. A claim that the record is devoid

of an objection is not subject to procedural default. Davison v. State, 405 S.W.3d 682,

684 (Tex. Crim. App. 2013).

      Petitioner did lodge an objection to the Allen charge. Petitioner afforded the trial

court a second opportunity to correct the charge error by specifically alleging the error

in his amended motion for new trial.

      Even supposing that Petitioner’s claim did not, on its face, alert the state court to

any federal claim, Petitioner satisfies the last test of the Daye analysis. Petitioner’s

contention regarding the Allen charge was sufficient to alert the state court that a

federal due process claim was being asserted because the fact pattern alleged is within

the mainstream of constitutional analysis. “The gravamen of a claim of denial of a fair

trial due to judicial bias does not depend on the source of the bias or the manner of its

manifestation. If judicial bias, or the appearance of it, existed, due process was denied.


                                           12
We do not believe it reasonable to assume that state judges presented with a claim of

manifested judicial bias would fail to recognize the implication of due process rights

simply because half a century of due process cases dealt with the mere risk of bias or

with actual bias manifested in other ways.” Daye v. Attorney Gen. of New York, 696

F.2d 186, 197 (2nd Cir. 1982) (en banc).

       This Court need not even reach the Daye question of whether the issue was

cognizable pursuant to Petitioner’s trial objection and motion for new trial if Petitioner

is correct that the due process right at issue here is an absolute right and not subject to

forfeiture.

Coercive nature of the Allen charge in this case

       In relevant part, the trial court’s Allen charge in this case stated:

       Although the verdict must be based upon proof beyond a reasonable doubt, and
       although the verdict must be the individual verdict of each juror, and not a mere
       acquiescence in the conclusion of other jurors, each juror should show a proper
       regard to the opinion of the other jurors.

       [CR p. 97]

       There is only one party in the criminal trial to whom the “proof beyond a

reasonable doubt” burden applies: the State. The trial court’s Allen charge in this case

highlighted that burden, then provided some “although” exceptions, and finally

instructed the jurors to “show a proper regard for the opinion of the other jurors.”



                                            13
Since the Petitioner had no obligation to prove anything beyond a reasonable doubt,

requesting that the jury show proper regard for the opinion of other jurors could have

been directed no other persons than those who felt the State had not met its burden and

were therefore hanging up the jury deliberations. The fact that the trial court did not

explicitly single out those “not guilty” jurors is of little legal significance. Although

most courts upholding the use of the Allen charge which does not single out individual

jurors, “an evaluation of a suspect Allen charge must be conducted from the

perspective of a juror in the minority, because ‘they always know their minority status,

and if fearfully inclined, may presumably suspect a disgruntled judge can find them

out.’” United States v. Burgos, 55 F.3d 933, 940 (4th Cir. S.C. 1995). The danger is

clear, as stated by the New York Second Circuit: “Here, the juror in the minority was

not made aware of the possibility that, if he or she was not convinced by the views of

the majority, he or she should hold on to his or her own conscientiously held beliefs.

The absence of that option might lead minority jurors to believe that unless they are

able to convince the majority, they should abandon their own conscientiously held

position.” Smalls v. Batista, 191 F.3d 272, 281 (2d Cir. N.Y. 1999). In that case, the

court held that the charge was rendered coercive not so much for what it contained but

for what it failed to contain. The same is true in this case, with the added error that the

astute juror could figure out to whom the “beyond a reasonable doubt” language was


                                            14
directed. In sum, the Allen charge given in this case “gave the jury false notions of the

validity and force of majority opinion; it tended to limit full and free discussion in the

jury room; it prejudiced the right of an accused to a hung jury and a mistrial by tending

to stifle the dissenting voices of minority jurors.” Green v. United States, 309 F.2d

852, 856 (5th Cir. Fla. 1962).

      For the foregoing reasons, Petitioner requests this Court to find that (1)

Petitioner has not waived or forfeited his right to complain of the Allen charge

submitted by the trial court; and (2) the Seventh Court of Appeals erroneously held that

the Allen charge in this case was not coercive. Therefore, the judgment of the Seventh

Court of Appeals should be reversed and Petitioner should be granted a new trial.

                              PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court

grant this petition, and upon reviewing the judgment entered by the Seventh Court of

Appeals, reverse the judgment of the Court of Appeals with instructions to that court to

remand the case to the trial court for a new trial. In the alternative, in the event this

Court determines that the court of appeals erroneously applied the standard regarding

review of the alleged waiver or forfeiture by Petitioner of his Constitutional rights in

this case, the Court of Criminal Appeals should reverse the judgment of the Seventh

Court of Appeals and remand the case for a proper harm analysis.


                                           15
                                        Respectfully submitted,

                                        Easterwood, Boyd & Simmons, PC
                                        623 N. Main Street, P.O. Box 273
                                        Hereford, TX 79045
                                        Tel: (806) 364-6801
                                        Fax: (806) 364-2526


                                    By: /s/ James B. Johnston
                                      James B. Johnston
                                      State Bar No. 10838200
                                      Email: bryan@ebs-law.net
                                      Attorney for Kristopher Donald Mixon


                        CERTIFICATE OF COMPLIANCE

      This is to certify that the number of words in this document according to the
word count of the program used to prepare the document is 3009.


                                        /s/ James B. Johnston
                                        James B. Johnston


                               Certificate of Service

      I hereby certify that a true copy of the foregoing instrument was provided to all
counsel of record in this matter on the 10th day of December, 2015, in accordance with
the Texas Rules of Appellate Procedure.

      State Prosecuting Attorney
      P. O. Box 12405
      Austin, Texas 78711




                                          16
Warren L. Clark
Randall County District Attorney’s Office
2309 Russell Long Blvd., Ste. 120
Canyon, Texas 79015



                                      /s/ James B. Johnston
                                      James B. Johnston




                                 17
             APPENDIX

Opinion of the Seventh Court of Appeals




                  18
                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-15-00094-CR


                       KRISTOPHER DONALD MIXON, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 251st District Court
                                     Randall County, Texas
                   Trial Court No. 23,963-C, Honorable Ana Estevez, Presiding

                                      November 10, 2015

                                           OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant, Kristopher Donald Mixon, appeals the trial court’s judgment by which

he was convicted of possession of a controlled substance, methamphetamine, in an

amount greater than four grams but less than 200 grams.1 The trial court sentenced

him to eight years’ imprisonment. On appeal, he brings four points of error, three of

which focus on the trial court’s supplemental charge to the jury and the fourth of which

challenges the sufficiency of the evidence. We will affirm.

      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010).
                             Factual and Procedural History


      On November 4, 2012, Amarillo Police Department officers responded to an early

morning 911 hang-up call from 7002 Imperial Trail in Amarillo, Texas. Officer Jarrod

Robertson responded first to the scene of the hang-up call. He was met by a female

named Belinda Treadway, appellant’s girlfriend, who began to voice her suspicions to

Robertson about an intruder being in the shed.         Two other people in addition to

Treadway and appellant were present that morning; the two people—appellant’s

daughter and her husband—had apparently just moved into the residence as well.

Corporal Jerry Neufeld arrived a short time later to assist Robertson.


      Both appellant and Treadway consented to a search of the home, including the

shed. The search began with the shed in the backyard, described by Robertson as a

detached garage that appeared to be used more as a workshop.             As Robertson,

Neufeld, and Treadway made their way to the shed, appellant retrieved the key and

went outside to unlock the door to the shed.


      After confirming that no one was located in the shed, the officers, appellant, and

Treadway returned to the residence where Treadway retrieved and brought to

Robertson an opened white box containing needles, spoons, a clear plastic bag

containing a crystalline substance that looked like methamphetamine, and other items

that Robertson recognized as drug paraphernalia. To rule out an alternative purpose for

having the hypodermic needles in the home, Robertson asked whether appellant was a

diabetic to which appellant responded, ―No.‖ When Robertson asked appellant what the

contents of the bag were, appellant responded, ―Probably meth.‖


                                            2
       A full-scale search of the residence then ensued, beginning in the northeast

bedroom where the officers found several items of drug paraphernalia, specifically both

broken and intact pipes. A search of the southeast bedroom yielded several more items

of   drug     paraphernalia,   including   more   pipes   generally   used   for   smoking

methamphetamine.        Robertson and Neufeld returned to the shed to continue their

search, this time for narcotics. Officers found additional paraphernalia in the shed and

also located a small green change purse on a shelf. Inside that purse, the officers

discovered a plastic bag containing what they believed—and later confirmed—to be

methamphetamine, the 6.85 grams possession of which is at issue in this case.


       Appellant was convicted of possession of the 6.85 grams of methamphetamine

and sentenced to eight years’ imprisonment.         On appeal from that conviction, he

presents three points of error contending that the trial court reversibly erred by giving

the jury a supplemental charge when the jury indicated that it was having difficulty

reaching a decision. He also challenges the sufficiency of the evidence to support his

conviction.


                                 Sufficiency of the Evidence


       Appellant challenges the sufficiency of the evidence in the final point of error;

however, because this point of error would, if sustained, afford the greatest relief to

appellant, we will address the sufficiency of the evidence first. See Chaney v. State,

314 S.W.3d 561, 565, 566 n.6 (Tex. App.—Amarillo 2010, pet. ref’d) (citing TEX. R. APP.

P. 43.3 and Bradleys’ Elec. Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.

1999) (per curiam)).


                                             3
Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). ―[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.‖ Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that ―[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.‖             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). ―[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.‖ Id. at 899.


Applicable Law


       A conviction for possession of a controlled substance is supported only when the

evidence establishes that the defendant ―knowingly or intentionally possesse[d]‖ the

alleged controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). ―A


                                             4
person acts knowingly, or with knowledge, with respect to the nature of his conduct or to

circumstances surrounding his conduct when he is aware of the nature of his conduct or

that the circumstances exist.‖ TEX. PENAL CODE ANN. § 6.03(b) (West 2011). The mere

presence of the accused at the place where contraband is located does not make him a

party to joint possession, even if he knows of the contraband’s existence. Jenkins v.

State, 76 S.W.3d 709, 712 (Tex. App.—Corpus Christi 2002, pet. ref’d).          Proof of

possession requires evidence that the accused exercised ―actual care, custody, control,

or management‖ over the substance.         See TEX. HEALTH & SAFETY CODE ANN. §

481.002(38) (West Supp. 2014). Thus, the State must prove the accused (1) ―exercised

control, management, or care over the substance‖ and (2) knew that the substance

―possessed‖ was contraband. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim.

App. 2006); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988) (en banc).


      When the accused is not in exclusive control of the place where the contraband

is found, the State must establish care, custody, control, or management by linking the

accused to the substance through additional facts and circumstances. See Poindexter

v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Deshong v. State, 625

S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981)). Be it direct or circumstantial, the

State’s evidence of links must establish, ―to the requisite level of confidence, that the

accused’s connection with the drug was more than just fortuitous.‖ See id. at 405–06

(quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc)); Park

v. State, 8 S.W.3d 351, 352–53 (Tex. App.—Amarillo 1999, no pet.). In other words, the

evidence must affirmatively connect the accused to the contraband in such a manner

and to such a degree that a reasonable inference may arise that the accused knew of


                                           5
the contraband’s existence and that he exercised control over it. See Travis v. State,

638 S.W.2d 502, 503 (Tex. Crim. App. [Panel Op.] 1982).


      The several factors by which an accused may, under the unique circumstances

of each case, be sufficiently ―linked‖ to the contraband, include the following

considerations: (1) the defendant’s presence when a search is conducted; (2) whether

the contraband is in plain view; (3) the defendant’s proximity to and the accessibility of

the contraband; (4) whether the defendant was under the influence of contraband when

arrested; (5) whether the defendant possessed other contraband or narcotics

connecting himself to the contraband; (6) whether the defendant made incriminating

statements connecting himself to the contraband; (7) whether the defendant made

furtive gestures; (8) whether there was an odor of contraband; (9) whether other

contraband or drug paraphernalia were present; (10) whether the defendant owned or

had the right to possess the place where the contraband was found; (11) whether the

place where the contraband was found was enclosed; (12) whether the defendant was

found with a large amount of cash; (13) whether the conduct of the defendant indicated

a consciousness of guilt, including whether the accused attempted to flee; and (14)

whether occupants of the premises gave conflicting statements about relevant matters.

See Evans, 202 S.W.3d at 162 n.12; Jenkins, 76 S.W.3d at 712–13; see also Triplett v.

State, 292 S.W.3d 205, 209 (Tex. App.—Amarillo 2009, pet. ref’d) (listing numerous

factors to be considered in analysis). These factors, however, are simply that—factors

which may circumstantially establish the sufficiency of evidence offered to prove a

knowing ―possession.‖ See Evans, 202 S.W.3d at 162 n.12 (cautioning courts that




                                            6
these factors ―are not a litmus test‖). It is not the number of links that is dispositive;

rather, it is the logical force of all the evidence. See id. at 162.


Analysis


       In evaluating the evidence for factors linking appellant to the methamphetamine

found in the shed, we note that the methamphetamine at issue was found in a purse in

a locked outdoor shed, the key to which appellant apparently controlled. Scales and

several other items of paraphernalia were present throughout the house and the shed,

though appellant maintains none of those items were directly linked to him. Specifically,

several pipes were found in the southeast bedroom that had been converted by

appellant into a video surveillance equipment room, used to monitor activities on and

around the property.


       Appellant was considered the ―primary resident‖ of the house although

appellant’s sister held title to the house. From the interaction with police at the scene,

we see that appellant was familiar with and admitting using methamphetamine at

various points in the past. In fact, when Treadway brought the opened box of drug

paraphernalia and a plastic bag with an unidentified substance in it, appellant readily

concluded that the bag probably contained methamphetamine.


       Through these additional facts and circumstances, the State presented evidence

from which the jury could have rationally found that appellant (1) ―exercised control,

management, or care over the substance‖ and (2) knew that the substance ―possessed‖

was contraband. See id. at 161.



                                               7
       Appellant highlights a number of other ―factors‖ which did not link him to the

methamphetamine found in the shed. He points out that there is no evidence that

appellant was under the influence of methamphetamine when he was arrested, that

appellant made no incriminating statements when arrested, that appellant made no

attempt to flee and no furtive gestures, that officers found no large amounts of cash,

and that there were no other indications in appellant’s behavior of a consciousness of

guilt. However, the ―absence of various affirmative links does not constitute evidence of

innocence to be weighed against the affirmative links present.‖ Jones v. State, 466

S.W.3d 252, 260 (Tex. App.—Houston [1st Dist.] 2015, pet. filed) (quoting James v.

State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)).


       Appellant also emphasizes that it was Treadway who had actual knowledge of

the first amount of methamphetamine as evidenced by the fact that she retrieved it and

brought it to Robertson. Nonetheless, that Treadway may have also known enough

about or been sufficiently linked to methamphetamine is not at issue in this case. ―The

mere fact that a person other than the accused might have joint possession of the

premises does not require the State to prove that the defendant had sole possession of

the contraband, only that there are affirmative links between the defendant and the

drugs such that he, too, knew of the drugs and constructively possessed them.‖

Poindexter, 153 S.W.3d at 412; see Cole v. State, 194 S.W.3d 538, 548 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d) (―The State need not prove exclusive possession of

the contraband for conviction.‖).


       Having found the evidence was sufficient, such that the jury could have rationally

concluded that appellant knowingly or intentionally possessed the methamphetamine

                                            8
found in the shed, and remaining unpersuaded by the evidence he cites as militating

against guilt, we overrule his point of error.


                                 Supplemental Charge to the Jury


        In his first three points of error, appellant takes issue with the trial court’s

supplemental charge to the jury. First, he contends that the trial court erred by issuing

said charge to the jury.          Secondly, he contends that such error caused harm to

appellant. Finally, he contends the trial court’s supplemental jury charge deprived him

of a fair and impartial trial as guaranteed by the Sixth Amendment to the United States

Constitution and by Article V, Section 10 of the Texas Constitution.2


Applicable Law and Standard of Review


        When the jury sent out a note that it ―[could] not reach decision on this case,‖ the

trial court proposed a supplemental charge reminding 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 issue any easier to resolve. Appellant

lodged a very general objection to this supplemental charge and proposed an

alternative charge in the form of a question to the jury regarding the possibility of

reaching a verdict.         The trial court overruled appellant’s objection and read the



        2
           When in response to the jury’s note, the trial court proposed the supplemental charge, appellant
objected as follows: ―Judge, I just need to object to it. I will object. I would propose that they just be
asked if they have any possibility of reaching a verdict.‖ The State responds, and we agree, that
appellant’s very general objection to the supplemental charge when it was proposed failed to preserve
any challenge to the constitutional concerns he now raises on appeal. Only by reading the objection most
liberally would the objection preserve any error on appeal. At any rate, there having been no mention
whatsoever of any constitutional challenge to the supplemental charge, we conclude that appellant failed
to preserve any constitutional issues concerning the supplemental charge and summarily overrule that
point of error. See TEX. R. APP. P. 33.1(a).

                                                    9
supplemental charge to the jury. Having received its supplemental charge, the jury

retired from the courtroom at 2:09 p.m.       At 3:26, the trial court noted that the jury

indicated that it had reached a verdict.


         A supplemental charge, such as the one given in this case, to a jury that had

declared itself deadlocked is widely known as an Allen charge. See Barnett v. State,

189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006); see also Ex parte Menchaca, 854

S.W.2d 128, 130 & n.3 (Tex. Crim. App. 1993) (en banc) (noting one alternative name

for Allen charge is a ―dynamite‖ charge). An Allen charge takes its name from Allen v.

United States, 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528 (1896), and refers to a

supplemental charge sometimes given to a jury that declares itself deadlocked.

Generally speaking, it is designed to remind 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 issue any easier to resolve. See id.; Barnett, 189 S.W.3d at

277 n.13. The use of an Allen charge in this context has long been sanctioned by both

the United States Supreme Court and the Texas Court of Criminal Appeals. See Allen,

164 U.S. at 501–02; Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996) (en

banc), overruled on other grounds by Easley v. State, 424 S.W.3d 535, 538 & n.23

(Tex. Crim. App. 2014); Arrevalo v. State, 489 S.W.2d 569, 571–72 (Tex. Crim. App

1973).


         Nevertheless, trial courts are cautioned that they must design and administer this

supplemental charge in a non-coercive manner. See Howard, 941 S.W.2d at 123–24.

Generally speaking, ―a supplemental charge which suggests that all jurors reevaluate

their opinions in the face of disparate viewpoints cannot be said to be coercive on its

                                             10
face.‖ Id. at 123. The primary inquiry to determine the propriety of an Allen charge is its

coercive effect on juror deliberation, ―in its context and under all circumstances.‖

Lowenfield v. Phelps, 484 U.S. 231, 237, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988)

(quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059, 13 L. Ed. 2d 957

(1965) (per curiam)).


Analysis


       When, after approximately three and one-half hours of deliberation, the jury

indicated to the trial court that it was unable to reach a decision, the trial court issued

the following supplemental instruction over appellant’s general objection:


             You are instructed that in a case of this nature it is not unusual for
       your deliberations to take a considerable amount of time.

              You are further instructed that in a large portion of the cases
       absolute certainty cannot be expected. Although the verdict must be
       based upon proof beyond a reasonable doubt, and although the verdict
       must be the individual verdict of each juror, and not a mere acquiescence
       in the conclusion of other jurors, each juror should show a proper regard
       to the opinion of the other jurors. You should listen, with a disposition to
       be convinced, to the arguments of the other jurors. You should consider
       whether or not you are basing your opinion on speculation or surmise and
       not on the evidence in this case.

               If this jury finds itself unable to arrive at a unanimous verdict, it will
       be necessary for the Court to declare a mistrial and discharge the jury.
       The indictment will still be pending, and it is reasonable to assume that the
       case will be tried again before another jury at some future time. Any such
       future jury will be impaneled in the same way this jury has been impaneled
       and will likely hear the same evidence which has been presented to this
       jury. The questions to be determined by that jury will be the same
       questions confronting you, and there is no reason to expect that the next
       jury will find these questions any easier to decide than you have found
       them.

              With this additional instruction, you are requested to continue your
       deliberations in an effort to arrive at a verdict that is acceptable to all

                                              11
       members of the jury, if you can do so without doing violence to the
       conscience of any individual juror.

The trial court then requested that the jury retire and continue its deliberations. It did so

and returned its guilty verdict one hour and seventeen minutes later.


       As is apparent from the face of the Allen charge given, the trial court did not

direct the supplemental charge toward the minority jurors. See Howard, 941 S.W.2d at

123–24. The instructions contained in the Allen charge utilized here are consistent with

similar instructions used in Allen charges used throughout this state and have been held

to be noncoercive. See West v. State, 121 S.W.3d 95, 108–09 (Tex. App.—Fort Worth

2003, pet. ref’d) (concluding that nearly identical Allen charge was not coercive and

providing citation to several state and federal cases dealing with similarly worded Allen

charges). That said, the Allen charge was not coercive on its face, nor was it delivered

with any additional comment that could be read to be coercive or in any way convey the

trial court’s view of the case. See Howard, 941 S.W.2d at 123–24 (observing, in that

case, that supplemental charge directing ―all jurors‖ to reevaluate their opinions was not

coercive on its face and noting further that the trial court ―did not shade the instruction

with coercive nuance‖).


       Instead, the charge given here appears to be designed to ―avert an impasse‖

following three and one-half hours of deliberation. See id. at 124. Indeed, the jury

continued to deliberate for an additional one hour and seventeen minutes after having

been so charged, suggesting that the jury did continue deliberations rather than come to

a decision following a simple acquiescence by the minority jurors. We conclude that the

trial court did not err in giving the Allen charge to the jury in these circumstances.


                                             12
      We overrule appellant’s first point of error contending that the Allen charge from

the trial court was error.   Having so concluded, we need not address whether the

alleged error was harmful and overrule appellant’s second point of error as well.


                                       Conclusion


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

conviction. See TEX. R. APP. P. 43.2(a).




                                                Mackey K. Hancock
                                                    Justice

Publish.




                                           13
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   Location                               Court Of Criminal Appeals
   Date Filed                             12/10/2015 11:59:07 PM
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