                                    In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                         ____________________
                            NO. 09-15-00421-CR
                         ____________________

                RICHARD MCKINNLEY NIXON, Appellant

                                      V.

                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 252nd District Court
                            Jefferson County, Texas
                         Trial Cause No. 13-18376-CR


                        MEMORANDUM OPINION

      Appellant Richard McKinnley Nixon (Nixon) was indicted by a Jefferson

County grand jury for possession of a controlled substance (cocaine), a second

degree felony. See Tex. Health & Safety Code Ann. § 481.115 (West 2010). The

indictment alleged that on or about May 3, 2012, Nixon “intentionally and

knowingly possess[ed] a controlled substance listed in Penalty Group 1 of the

Texas Controlled Substance Act, namely COCAINE, by aggregate weight . . . in an

amount of at least four (4) grams or more and less than two hundred (200)

                                      1
grams[.]” The indictment further alleged that prior to the commission of the

primary offense, Nixon “was finally convicted of the felony of Possession of

Controlled Substance-Third Degree Felony on May 10, 2004. . . .” Nixon entered a

plea of not guilty, and the cause was tried to a jury in October of 2015. The jury

found Nixon guilty as charged in the indictment, and assessed punishment at

confinement in the Texas Department of Criminal Justice for a term of twenty

years. The trial court entered a Judgment of Conviction by Jury consistent with the

jury verdict. The trial court then certified that the defendant has the right of appeal.

Nixon timely filed a written notice of appeal.

      Nixon raises three issues on appeal. In his first two issues on appeal, he

challenges the admission of certain evidence regarding his prison identification

card from another offense, arguing that the prison identification card “related to an

extraneous offense that was irrelevant” and that such evidence was improper under

evidentiary rules 401, 402, 403, and 404(b). In his third issue, Nixon contends the

trial court erred in denying his request for a continuance. We affirm the judgment.

                              ORAL MOTION IN LIMINE

      At trial, after a jury was selected but immediately before the seating of the

jury, the defendant urged a verbal motion in limine to the court as follows:

      [Defense Attorney]: Your Honor, we do have a short motion in limine
      we need to present. We have a short motion in limine, your Honor.

                                           2
      THE COURT: Well, we’ve got a jury coming; and I don’t have a
      written motion. What do you want?

      [Defense Attorney]: No. It would be oral, your Honor. I just --

      THE COURT: (Addressing the bailiff) Would you tell them to hold
      the jury just for a second in the hall. Don’t let them go away.

      THE COURT: What is it, Mr. [Defense Attorney]?

      [Defense Attorney]: Your Honor, just there might be mention of prior
      convictions or an ID card that would indicate he is a convicted felon
      ’cause it’s a T.D.C.J. ID card. And that’s it, your Honor. I think
      during --

      THE COURT: The motion in limine is denied. You have the right to
      object.

      [Defense Attorney]: Yes, sir.

      THE COURT: And I’ll take it up when that comes up.

                               EVIDENCE AT TRIAL

      Beaumont Police Officer Rosendo Lopez testified that on May 3, 2012, he

and his partner, Officer Danny Davis, were attempting to serve an arrest warrant on

Nixon for a parole violation for possession of a controlled substance. The officers

were informed that Nixon could be found at 4610 Maddox, Apartment No. 4, in

Jefferson County, Texas. When they arrived at the apartment complex, they found

Nixon’s vehicle in the parking lot. The officers knocked on the door of the

apartment and announced themselves as “Beaumont PD[]” and after several

attempts, a female answered the door. Through the partial opening in the door,
                                         3
Officer Lopez could see the defendant, Richard Nixon, “fleeing to the back of the

residence.” Nixon ran into the bathroom and the officers ordered Nixon to come

out. Officer Lopez testified that he could hear water and a toilet flushing while

Nixon was in the bathroom. After Nixon eventually came out of the bathroom, the

officers apprehended Nixon, took him into custody, and handcuffed him.

      Officer Lopez testified that when escorting Nixon to the front door of the

apartment, Lopez “observed in plain view a clear plastic baggy on the couch[]”

that “contained an off-white rock-like substance” that the officer recognized as

“crack cocaine.” State’s exhibits 2A and 2B were identified as the baggy and

substance in question. Officer Lopez testified that, based upon his training and

experience, he formed the opinion that Nixon was in possession of a controlled

substance. Lopez testified that Officer Davis then escorted Nixon to the patrol

vehicle, and initially Nixon was only arrested for the parole violation. Lopez

notified the Narcotics Division and secured the scene, and a female subject was

also placed under arrest for an outstanding warrant. Officers from the Narcotics

Division arrived, and Officer Davis administered Miranda warnings to Nixon while

Nixon was in the patrol car. The Narcotics Division obtained a search warrant.

      On cross-examination, Lopez agreed that what Lopez wrote in his report is

similar to what Officer Davis wrote in Davis’s report, but Lopez agreed that the

description provided in Davis’s report had details that Lopez did not include in
                                        4
Lopez’s report. Lopez explained that he could not testify about Davis’s version of

what happened and that “[h]e wrote the report his way. I wrote my report my

way. . . . He can’t testify to what I observed, what I saw.” Lopez confirmed that he

saw Nixon through the partially open door, that Nixon was sitting “on the

couch[,]” and Lopez saw Nixon flee.

      Sergeant Cody Courts with the Beaumont Police Department testified that

on May 3, 2012, he was working as an investigator in the Narcotics Division, when

he received a call from Officer Lopez, who reported that while serving an arrest

warrant for a parole violation, Lopez had observed in plain view certain items he

believed to be narcotics. Courts obtained a search warrant for the residence.

Officer Courts testified regarding police protocol and procedures, and identified

various Exhibits. Courts identified Exhibit 1A as the bag in which Courts placed

item 1B, and 1B as a bag with a rock-like substance that Courts found at the

apartment when he executed the search warrant, and which his preliminary testing

at the scene revealed was positive for cocaine. The item inside Exhibit 1A was

located by Officer Courts inside a Crown Royal bag that was underneath the sink

in the bathroom of the apartment. Courts identified Exhibit 2A as the container in

which Lopez placed Exhibit 2B, and 2B as the suspected crack cocaine located on

the couch in plain view first observed by Officer Lopez. Preliminary tests on 2B

indicated it was cocaine. Courts identified Exhibit 3A as the package in which
                                         5
Courts placed 3B, which contained a white powder the officers found in a drawer

in the kitchen during the search.1

      The State asked Sergeant Courts what evidence was collected from the

search of the apartment that indicated to the officer that Nixon resided at that

apartment:

      [Sgt. Courts]: We located a lot of personal items like driver’s licenses
      -- or a driver’s license, an inmate or an offender identification card --

      [Defense Attorney]: Your Honor, once again, I’m going to object.
      That goes to your ruling on the motion in limine.

      THE COURT: Overruled.

      [State’s Attorney]: [] Please continue.

      [Sgt. Courts]: An Entergy bill with his name on it for that location,
      things of that nature.

      [State’s Attorney]: Sir, I’m going to show you what has been marked
      tentatively for identification purposes as State’s Exhibit No. 4. Would
      you please look at the contents of State’s Exhibit No. 4.

      [Sgt. Courts]: (Complies.)

      [State’s Attorney]: What does that appear to be, sir?


      1
         Prior to trial, defense counsel filed a Motion to Suppress “[a]ll tangible
items seized by law enforcement” without specifying the articles seized, on the
basis that the detention was unlawful under the Fourth and Fourteenth
Amendments, Article I, Section 9 of the Texas Constitution, and Chapters 14 and
38 of the Texas Code of Criminal Procedure. There is no indication in the record
that the Motion to Suppress was ever set for a hearing or ruled upon by the trial
court.
                                         6
      [Sgt. Courts]: It appears to be a Texas Department of Criminal Justice
      Offender Identification Card.

      [State’s Attorney]: Is that the same one you saw at the residence?

      [Sgt. Courts]: Yes, sir.

      [State’s Attorney]: How do we know it’s the same one you saw at the
      residence?

      [Sgt. Courts]: It’s got the same number on it. It’s got the same
      packaging that I packaged it in. It’s got my handwriting on it.

      [State’s Attorney]: Does it also have evidence tape sealing it?

      [Sgt. Courts]: Correct. Yes, sir.

      [State’s Attorney]: Please put it back in State’s Exhibit No. 4.

      [Sgt. Courts]: (Complies.)

      [State’s Attorney]: Your Honor, at this time I’d like to introduce
      State’s Exhibit 4 and its contents into evidence.

      THE COURT: Mr. [Defense Attorney]?

      [Defense Attorney]: Your Honor, we have the same objection as to its
      prejudicial value i[t’]s irrelevant as far as any ID, what that ID card is
      for, and it goes to our motion in limine.

      THE COURT: Overruled. 4 is admitted.

      After the State rested its case, the defendant indicated he did not wish to

testify but the defense attorney asked the trial court to grant the defendant a “brief

recess” to obtain the appearance of a witness, as follows:


                                          7
      [Defense Attorney]: We are asking that the Court grant us a brief
      recess in order to obtain the appearance of Officer Davis, who is a
      material witness, based on our motion to suppress as far as what
      transpired prior to entry into the apartment. It’s our understanding that
      Mr. Davis is available to testify. However, I think he’s in custody of
      his children and he’s not available until 11:00 o’clock in the morning.
      And the State is not going to call Officer Davis. I don’t know if
      Officer Davis has been subpoenaed by the State or not. I believe we
      are allowed to rely on their subpoenas. Of course, they were -- one of
      the witnesses we believed they were going to call. That being a
      material witness, we are going to need him to corroborate what his
      report says.

      THE COURT: That’s denied[]. The case was set for trial in August,
      plenty of time to get everybody here that y’all wanted to testify.

The defendant did not call any witnesses at trial.

                               STANDARD OF REVIEW

      We review a trial court’s decision to admit evidence under Rules 404(b) and

403 for an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex.

Crim. App. 2009). “As long as the trial court’s ruling is within the ‘zone of

reasonable disagreement,’ there is no abuse of discretion, and the trial court’s

ruling will be upheld.” Id. at 343-44 (quoting Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1991) (op. on reh’g)). If the trial court’s decision is

correct on any theory of law applicable to the case, we will uphold the decision. Id.

at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982).

      We review the trial court’s denial of a defendant’s motion for continuance

for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App.
                                          8
2007); Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006). The trial

court has discretion to deny a continuance, and reversal is justified only when the

trial court has abused its discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex.

Crim. App. 1982). A continuance may be granted after trial has begun when there

is some unexpected occurrence, which no reasonable diligence could have

anticipated that so takes the applicant by surprise that a fair trial cannot be had.

Tex. Code Crim. Proc. Ann. art. 29.13 (West 2006). To obtain a continuance for a

missing witness, the defendant must show, among other things, that he exercised

due diligence to secure attendance. Id. art. 29.06(2) (West 2006). A party seeking a

new trial based on the denial of a motion for continuance for an absent witness

must file a sworn motion for new trial, stating the testimony that the missing

witness would have provided. Harrison v. State, 187 S.W.3d 429, 435 (Tex. Crim.

App. 2005) (citing McCloud v. State, 494 S.W.2d 888, 891 (Tex. Crim. App.

1973)); Robinson v. State, 454 S.W.2d 747, 748 (Tex. Crim. App. 1970). The

motion for new trial must include an affidavit of the missing witness or a sworn

statement from some source that the witness would actually testify to the facts set

forth in the motion for new trial. Harrison, 187 S.W.3d at 435-36 (citing McCloud,

494 S.W.2d at 890-91). A party fails to exercise due diligence necessary to support

a motion for continuance when he did not subpoena his witness, but relied solely

upon promises that the witness would be present. See Rodriguez v. State, 21
                                         9
S.W.3d 562, 566 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Absent such

due diligence, a trial court does not abuse its discretion by overruling the party’s

motion for continuance. See Cooks v. State, 844 S.W.2d 697, 725 (Tex. Crim. App.

1992) (deciding that trial court’s denial of motion for continuance for a defendant

to locate a witness was not abuse of discretion when, among other things,

defendant did not file pretrial application for subpoena).

                           PRISON IDENTIFICATION CARD

      In his first two issues, Nixon argues that the prison identification card

constitutes evidence of an “extraneous act” used to prove a propensity to violate

the law and that it was inadmissible under Rule 404(b). Nixon also contends that

the evidence was irrelevant and prejudicial under Rules 401, 402, and 403. The

State contends the ID card was used to prove an element of the crime charged, that

is, an affirmative link between Nixon and the drugs, and that the evidence was

cumulative of other evidence previously admitted without objection.

      To preserve error for appellate review, a party’s objection generally must be

sufficiently specific so as to “‘let the trial judge know what he wants, why he

thinks himself entitled to it, and do so clearly enough for the judge to understand

him at a time when the trial court is in a proper position to do something about it.’”

Malone v. State, 405 S.W.3d 917, 925 (Tex. App.—Beaumont 2013, pet. ref’d)

(quoting Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009)). It
                                          10
follows, that an objection stating one legal basis may not be used to support a

different legal theory on appeal. See Zillender v. State, 557 S.W.2d 515, 517 (Tex.

Crim. App. 1977). Where a complaint on appeal does not comport with an

objection made at trial, the error is not preserved on that complaint. Goff v. State,

931 S.W.2d 537, 551 (Tex. Crim. App. 1996); Broxton v. State, 909 S.W.2d 912,

918 (Tex. Crim. App. 1995); Dunn v. State, 819 S.W.2d 510, 524-25 (Tex. Crim.

App. 1991) (discussing the importance of specific objections under Rule 52, the

predecessor to Rule 33.1). In order to raise a Rule 404 complaint on appeal, the

objecting party must have made a Rule 404 objection separate from a Rule 403

objection. See Montgomery, 810 S.W.2d at 389.

      In the case at bar, Nixon made an oral motion in limine on the first day of

trial that was overruled. In the oral motion in limine the defense notified the court

that there may be “mention of prior convictions or an ID card that would indicate

he is a convicted felon ’cause it’s a T.D.C.J. ID card[,]” and the trial court

indicated it would “take it up when that comes up.” When the ID card is then

mentioned in the testimony, the only objection voiced by the defense is “once

again, I’m going to object to that question and answer, and that goes to the motion

-- motion in limine.” And, then again when the ID card is offered into evidence,

“[y]our Honor, we have the same objection as to its prejudicial value is irrelevant

as far as any ID, what that ID card is for, and it goes to our motion in limine.” The
                                         11
trial court overruled the objections. The appellant failed to make a Rule 404(b)

objection. Therefore, he failed to preserve these arguments on appeal. See Tex. R.

App. P. 33.1 (preservation of error for appeal requires a timely objection made

with sufficient specificity to inform the trial court of the complaint); see also

Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012) (A party does not have

to use “magic words” or recite a specific statute to preserve an issue, “as long as

the basis of his complaint is evident to the trial court.”); Brazzell v. State, 481

S.W.2d 130, 131 (Tex. Crim. App. 1972) (“[g]enerally, a motion in limine will not

preserve error to the admission of inadmissible evidence”).

      Nevertheless, even assuming that the objection made by Nixon preserved his

appellate argument pertaining to Rule 404(b), we conclude that the evidence was

not inadmissible under Rule 404(b) because the evidence was relevant to

establishing an affirmative link between Nixon and the drugs, and it was within the

zone of reasonable disagreement for the trial court to admit the evidence. Rule

404(b) expressly provides that evidence of crimes, wrongs, or other acts is not

admissible to prove the character of the defendant in order to show he acted in

conformity therewith. Tex. R. Evid. 404(b)(1). Rule 404(b) codifies the common

law principle that a defendant should be tried only for the offense for which he is

charged and not for being a criminal generally. Rogers v. State, 853 S.W.2d 29, 32

n.3 (Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex.
                                        12
Crim. App. 2008) (explaining that the defendant is generally to be tried only for

the offense charged, not for any other crimes).

      Extraneous offense evidence, however, may be admissible for other

purposes such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b)(2).

The list of exceptions in Rule 404(b) is nonexhaustive. See Prible v. State, 175

S.W.3d 724, 731 (Tex. Crim. App. 2005) (citing Montgomery, 810 S.W.2d at 388).

“Whether extraneous offense evidence has relevance apart from character

conformity, as required by Rule 404(b), is a question for the trial court.” Moses v.

State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court’s Rule 404(b)

ruling admitting evidence is generally within the zone of reasonable disagreement

“if there is evidence supporting that an extraneous transaction is relevant to a

material, non-propensity issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.

App. 2011) (citing Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)).

      Texas courts utilize a two-step analysis for determining the admissibility of

extraneous offenses or uncharged acts. Rogers, 853 S.W.2d at 32-33. Courts

determine first whether the evidence is relevant to a material issue in the case and

second whether the relevant evidence should be admitted as an exception to Rule

404(b). Id.


                                         13
      Rule 403 provides that “[t]he court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. The Rule 403

balancing factors include, but are not limited to, the following: (1) the probative

value of the evidence; (2) the potential to impress the jury in some irrational, yet

indelible, way; (3) the time needed to develop the evidence; and (4) the

proponent’s need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex.

Crim. App. 2012) (citing Montgomery, 810 S.W.2d at 389-90); Shuffield v. State,

189 S.W.3d 782, 787 (Tex. Crim. App. 2006). The rules of evidence favor the

admission of relevant evidence and carry a presumption that relevant evidence is

more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim.

App. 1996).

      A person commits the offense of possession of a controlled substance, if he

knowingly or intentionally possesses the controlled substance in the prescribed

amount, by aggregate weight, including adulterants or dilutants. See Tex. Health &

Safety Code Ann. §§ 481.102(3)(D) (West 2010), 481.115. To prove possession,

the State had to prove that (1) the accused exercised control, management, or care

over the substance; and (2) the accused knew the matter possessed was contraband.

Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). When the defendant
                                        14
does not have exclusive possession of the place where the contraband is found,

then independent facts and circumstances must link him to the drugs. Poindexter v.

State, 153 S.W.3d 402, 405-13 (Tex. Crim. App. 2005) (citing and quoting

Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)) (concluding that

evidence was sufficient to link defendant to drugs contained in brown paper bag

where bag was hidden in appellant’s house and confidential informant had

disclosed location to police). Regardless of whether the evidence is direct or

circumstantial, it must establish that the defendant’s connection with the drug was

more than fortuitous. Evans, 202 S.W.3d at 161. “Mere presence at the location

where drugs are found is thus insufficient, by itself, to establish actual care,

custody, or control of those drugs.” Id. at 162. However, presence or proximity,

when combined with other evidence, either direct or circumstantial, can be

sufficient to establish that element beyond a reasonable doubt. Id. It is not the

number of links that is dispositive, but rather the logical force of all of the

evidence, direct and circumstantial. Id. Texas courts have set forth a non-exclusive

list of possible links that may be sufficient, either singly or in combination, to

establish a person’s possession of contraband. Id. at 162 n.12. These links include,

among other items, whether the defendant owned or had the right to possess the

place where the drugs were found. Id.


                                        15
      The evidence in question was relevant to establishing an affirmative link

between Nixon, the apartment, and the drugs: it was discovered at the scene and

inside the apartment, and at the time it was admitted into the evidence the jury was

already aware that Nixon had previously been convicted of another offense.

Officer Lopez had previously testified that he and Officer Davis were attempting to

serve an arrest warrant on Nixon for a parole violation for possession of a

controlled substance. Nixon did not object to that line of questioning. Additionally,

the prison identification card was relevant to affirmatively linking Nixon to

possession of the cocaine. Accordingly, we conclude the trial court did not abuse

its discretion in admitting the evidence in this case. It was within the zone of

reasonable disagreement for the trial court to find that the evidence was relevant,

that it was not being offered in violation of Rule 404(b), and that the probative

value of the evidence was not substantially outweighed by the danger of unfair

prejudice. Therefore, we overrule issues one and two.

                            MOTION FOR CONTINUANCE

      In his third and final issue, Nixon contends that the trial court committed

reversible error by denying his oral request for a continuance to allow Nixon to

secure the attendance of Officer Davis as a witness at trial. Nixon argues that there

was a significant difference between Davis’s report and Lopez’s report, and that

Davis was a necessary witness so Nixon could establish that the entry into the
                                         16
apartment was illegal. Nixon argues he could not have known Lopez’s testimony,

and that expeditiousness of the trial should have given way to justice to allow the

defendant to fairly present his case under principles of due process. In support of

his argument, Nixon cites to several intermediate courts of appeal decisions,

including Deaton v. State, 948 S.W.2d 371 (Tex. App.—Beaumont 1997, no pet.),

wherein this Court stated that although generally motions for continuance should

be in writing, the denial of the continuance amounted to a denial of due process

and there was no negative impact on the orderly administration of justice by giving

the defendant a continuance until the following morning to call a witness. 948

S.W.2d at 374-77; see also Petrick v. State, 832 S.W.2d 767, 770-71 (Tex. App.—

Houston [1st Dist.] 1992, pet. ref’d); O’Rarden v. State, 777 S.W.2d 455, 459 (Tex.

App.—Dallas 1989, pet. ref’d).

      We decline to follow Deaton because subsequent controlling authority from

the Court of Criminal Appeals has confirmed that there is no “due process

exception” to the “written-and-sworn requirement.” Blackshear v. State, 385

S.W.3d 589, 591 (Tex. Crim. App. 2012) (citing Anderson v. State, 302 S.W.3d

276, 280 (Tex. Crim. App. 2009)). Accordingly, Nixon’s oral motion for

continuance preserved nothing for our review. Id. Nixon filed no written motion

and no supporting sworn affidavit. We further note that there was no evidence that

he exercised due diligence in having a subpoena issued for the attendance of the
                                        17
witness. We cannot say that the trial court abused its discretion in denying the oral

motion for continuance. See Priester v. State, 478 S.W.3d 826, 832 (Tex. App.—El

Paso 2015, no pet.). We overrule his third issue.

      Having overruled all of Nixon’s issues on appeal, we affirm the trial court’s

judgment.

      AFFIRMED.

                                              ___________________________
                                                   LEANNE JOHNSON
                                                        Justice


Submitted on July 14, 2016
Opinion Delivered August 24, 2016
Do Not Publish

Before McKeithen, C.J., Horton, and Johnson, JJ.




                                         18
