                                      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.‖


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       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.




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