Opinion issued April 9, 2015




                                     In The

                               Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                               NO. 01-14-00513-CR
                               NO. 01-14-00514-CR
                            ————————————
                  AARON CHARLES BURTON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                  On Appeal from the 351st District Court
                           Harris County, Texas
                  Trial Court Case Nos. 1330898 & 1330899


                         MEMORANDUM OPINION

      A jury found Appellant guilty of two offenses: evading arrest or detention in

a motor vehicle and possession of a controlled substance, namely, phencyclidine,
weighing more than 1 gram and less than 4 grams. 1 Finding two enhancement

paragraphs to be true, the trial court assessed Appellant’s punishment for each

offense at 30 years in prison, with the sentences to run concurrently.

      On appeal, Appellant asserts four issues. He challenges the sufficiency of

the evidence to support the judgment of conviction for possession offense, asserts

that the trial court’s Allen 2 charge in the possession case was unduly coercive, and

claims that the trial court erred in each case by failing to arraign him before the

punishment phase on the enhancement allegations in each indictment.

      We affirm in each appeal.

                                     Background

      Around 1:00 a.m. on June 3, 2014, Deputy P. Gutierrez of the Harris County

Sherriff’s Office initiated a traffic stop of Appellant’s vehicle when he noticed the

car did not have a license plate. During the stop, Deputy Gutierrez confirmed

Appellant’s identity by looking at his driver’s license. As he began walking to his

patrol car to check whether Appellant had any outstanding warrants, Deputy

Gutierrez shined his flashlight in the back of Appellant’s car. He saw, in plain




1
      See TEX. PENAL CODE ANN. 38.04(b)(2)(A) (Vernon Supp. 2014) (evading arrest);
      TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c) (Vernon 2010) (possession
      of phencyclidine).
2
      See Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 157 (1896).

                                           2
view, what he believed to be a large bag of marihuana. When Deputy Gutierrez

turned around to ask Appellant to step out his vehicle, Appellant sped off.

      Two other sheriff’s deputies, Deputy B. Graham and his partner Deputy

Faughtenbery, arrived at the scene just as Appellant was fleeing. Deputy Gutierrez

asked the two deputies to pursue Appellant. Deputy Gutierrez got in his patrol car

and joined the other officers in pursuing Appellant’s vehicle. Deputy Graham saw

Appellant throw two baggies from his vehicle during the chase. Deputy Gutierrez

stopped and picked up a baggie from the road, which he believed contained the

marihuana that he had seen in the backseat.

      Appellant drove about one mile until he came to a dead end. At the dead

end, Appellant jumped out of his car and ran into a nearby wooded area. Two of

the officers gave chase but were not able to apprehend Appellant that night.

      Before it was towed, the officers inventoried Appellant’s car.           They

recovered what appeared to be a baggie with marihuana from the driver’s seat.

The officers also recovered a pill bottle from the center console, containing a

smaller bottle inside it. The smaller bottle contained a liquid that a forensic

laboratory later determined was 3.3 grams of phencyclidine, also known as PCP.

      A warrant was issued for Appellant’s arrest. He was charged in two separate

indictments with the offenses of evading arrest or detention in a motor vehicle and

possession of a controlled substance, namely, phencyclidine, weighing more than 1



                                         3
gram and less than 4 grams. Each indictment also contained two enhancement

paragraphs alleging that Appellant had previously been convicted of the offenses

of possession of a controlled substance and possession of a controlled substance

with the intent to deliver.

      At trial, the State presented the testimony of Deputy Gutierrez and Deputy

Graham. The State also presented the testimony of the forensic lab employee, who

had tested the substance in the bottle recovered from Appellant’s car.          The

employee testified that her analysis of the substance revealed it was 3.340 grams of

PCP, including adulterants and dilutants.

      After beginning deliberations, the jury sent a note to the trial court stating

that it had reached a verdict regarding the evading arrest offense, but it was

deadlocked 10 to 2 regarding the possession offense. The trial court gave the jury

an Allen charge. Thereafter, the jury found Appellant guilty of the offenses of

evading arrest or detention in a motor vehicle and of possession of a controlled

substance, namely, phencyclidine, weighing more than 1 grams and less than 4

grams. Appellant choose to have the trial court assess punishment.

      At the punishment hearing, Appellant, both orally and in writing, stipulated

that he had previously been convicted of 23 offenses.          These included 17

misdemeanors and 6 felonies. Among these were the two felony offenses forming

the basis of the two enhancement paragraphs in the indictments. The stipulation of



                                            4
evidence and each of the 23 judgments of conviction were admitted into evidence.

Appellant also stipulated to two unadjudicated offenses.

      During closing argument, the defense requested the trial court to sentence

Appellant to 25 years in prison, which, given the two enhancement paragraphs to

which he had stipulated, was the minimum sentence Appellant could receive. The

State requested that Appellant be sentenced to 35 years in prison.

      The trial court sentenced Appellant to 30 years in prison for each offense,

with the sentences to run concurrently. Appellant now appeals the judgments of

conviction.

                              Sufficiency of the Evidence

      In his first and second issues, Appellant asserts that the evidence was legally

and factually insufficient to support the judgment of conviction for the offense of

possession of PCP. Specifically, Appellant contends that the State failed to prove

that he knowingly possessed the PCP, an element of the charged offense. See TEX.

HEALTH & SAFETY CODE ANN. §§ 481.002(38), 481.102(8), 481.115(a), (c)

(Vernon 2010)

A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review, regardless of whether an appellant presents the challenge as a



                                         5
legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 53–54

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding of

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This standard of review

is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App.

2013).

      Pursuant to the Jackson standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and



                                         6
to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      In our review of the record, direct and circumstantial evidence are treated

equally; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative

force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B.    Elements of the Offense and Pertinent Legal Principles

      A person commits an offense if he knowingly or intentionally possesses

more than one gram, but less than 4 grams, of PCP, including adulterants and

dilutants. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(8), 481.115(a), (c).

To prove possession, the State must show the accused (1) exercised control,

management, or care over the contraband and (2) knew the substance possessed

was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006);

Roberts v. State, 321 S.W.3d 545, 548 (Tex. App.—Houston [14th Dist.] 2010, pet.



                                          7
ref’d). Possession may be proved through either direct or circumstantial evidence.

Poindexter v. State, 153 S.W.3d 402, 405–406 (Tex. Crim. App. 2005); see also

Rice v. State, 195 S.W.3d 876, 881 (Tex. App.—Dallas 2006, pet. ref’d) (stating

jury could infer knowing or intentional possession of contraband).

      If a defendant is not in exclusive possession of the place where the illegal

drugs are found, then additional independent facts and circumstances must link the

defendant to the contraband in such a way that it can be concluded that he had

knowledge of the contraband and exercised control over it. See Batiste v. State,

217 S.W.3d 74, 79–80 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Roberson v.

State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Such

linkage generates a reasonable inference that the defendant knew of the contraband

and exercised control over it. See Roberson, 80 S.W.3d at 735. Proof of a link

between the defendant and the illegal drugs is needed primarily to establish

knowledge or intent. Id. It is not sufficient to show the defendant was merely

present in the vicinity of the contraband. Batiste, 217 S.W.3d at 80. Whether this

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

confidence, that the defendant’s connection with the drug was more than

fortuitous. Poindexter, 153 S.W.3d at 405–06.

      Possible links include, but are not limited to, the following: (1) whether the

defendant was present when the search was conducted; (2) whether the contraband



                                         8
was in plain view; (3) whether the defendant was in close proximity to and had

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

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

narcotics when arrested; (6) whether the defendant made incriminating statements

when arrested; (7) whether the accused attempted to flee; (8) whether the

defendant made furtive gestures; (9) whether there was an odor of contraband; (10)

whether other contraband or drug paraphernalia was present; (11) whether the

defendant owned or had the right to possess the place where the drugs were found;

(12) whether the place where the drugs were found was enclosed; (13) whether the

defendant was found with a large amount of cash; and (14) whether the conduct of

the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12;

Lair v. State, 265 S.W.3d 580, 600 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

      In deciding whether the evidence is sufficient to link a defendant to

contraband, the fact finder is the exclusive judge of the credibility of the witnesses

and the weight to be given to their testimony. Poindexter, 153 S.W.3d at 406. The

link between the defendant and the contraband need not be so strong that it

excludes every other outstanding reasonable hypothesis except the defendant’s

guilt. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

      No formula of facts exists to dictate a finding of links sufficient to support

an inference of knowing possession. See Taylor v. State, 106 S.W.3d 827, 831



                                          9
(Tex. App.—Dallas 2003, no pet.). A factor that is of little or no value in one case

may be the turning point in another. See Nhem v. State, 129 S.W.3d 696, 699 (Tex.

App.—Houston [1st Dist.] 2004, no pet.).           When determining whether the

defendant knew that he possessed contraband, the jury is allowed to infer the

defendant’s knowledge from his acts, conduct, remarks, and from the surrounding

circumstances. See Krause v. State, 243 S.W.3d 95, 111 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d). In sum, it is the logical force of the evidence, and not the

number of links, that supports a fact finder’s verdict. Evans, 202 S.W.3d at 166.

      With these principles in mind, we turn to Appellant’s arguments and the

evidence in the record.

C.    Analysis

      To support his sufficiency challenge, Appellant cites a lack of direct proof

that he knowingly or intentionally possessed the PCP. He points out that he was

not present when the PCP was found in the car. Appellant acknowledges that he

was driving the car, but asserts that the evidence did not show knowledge or

awareness because the PCP was “found inside of a small pill bottle that itself was

inside of another larger container that itself was then found stuffed down into the

seat and center console of the vehicle the Appellant had been driving.”

      Appellant correctly points out that mere presence in the same place as the

controlled substance alone is not sufficient to justify a finding of possession. See



                                         10
Evans, 202 S.W.3d at 161–62; Harrison v. State, 555 S.W.2d 736, 737 (Tex. Crim.

App. 1977). Nonetheless, Appellant’s analysis does not appropriately view the

evidence in the light most favorable to the verdict and improperly discounts

significant evidence, linking him to the PCP. We also note that the absence of

various affirmative links does not constitute evidence of innocence to be weighed

against the affirmative links that are present. James v. State, 264 S.W.3d 215, 219

(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

      Although he was not present when the deputies found the PCP, Appellant

had been driving the car and was its sole occupant. This linked appellant to the

PCP. See Ly v. State, 273 S.W.3d 778, 782 (Tex. App.—Houston [14th Dist.]

2008, pet, ref’d) (considering appellant’s possession and ownership of vehicle as

link to illegal drugs recovered from console); see also Stout v. State, 426 S.W.3d

214 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (relying, in part, on appellant’s

status as driver of vehicle to link him to firearm concealed behind radio’s

faceplate). In addition, the PCP was accessible to Appellant because it was located

under an armrest in a console next to the driver’s seat. See Ly, 273 S.W.3d at 782

(determining that cocaine was accessible to appellant because it was located in

center console next to driver’s seat); see also Robinson v. State, 174 S.W.3d 320,

326 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (determining that contraband

was “conveniently accessible” to defendant when it was “within the close vicinity



                                        11
of the accused and easily accessible while in the vehicle so as to suggest that the

accused had knowledge of the contraband and exercised control over it.”).

      Several other factors also affirmatively linked Appellant to the PCP. These

factors included: (1) the presence of other contraband, that is, what Deputy

Gutierrez testified was marihuana in Appellant’s vehicle; (2) Appellant’s flight

from the deputies both in his vehicle and then on foot; (3) Appellant’s act of

throwing the baggies out of the vehicle as he fled, indicating a consciousness of

guilt; and (4) the center console, where the PCP was found, was an enclosed place.

See Ly, 273 S.W.3d at 782 (determining, among other factors, that console where

cocaine was found to be an enclosed space).

      The circumstantial evidence outlined above, when viewed in combination,

constitutes ample evidence connecting appellant to the actual care, custody,

control, or management of the PCP such that a jury could have reasonably inferred

that Appellant knowingly possessed it. See Evans, 202 S.W.3d at 166. Although

Appellant cites link factors on which the State presented no evidence, as well as

evidence that weighs in his favor, “[i]t is the logical force of the circumstantial

evidence, not the number of links, that supports a jury’s verdict.” See id. Viewing

the evidence in a light most favorable to the verdict, we conclude that a rational

fact finder could have found beyond a reasonable doubt that Appellant knowingly

possessed the PCP. See Ly, 273 S.W.3d at 782.



                                        12
      We overrule Appellant’s first and second issues.

           Reading of Enhancement Paragraphs and Taking of Plea

      In his third issue in each appeal, Appellant asserts that the trial court erred

because it did not read the allegations in the two enhancement paragraphs and

receive a plea to these allegations before assessing his punishment.

      Appellant relies on Code of Criminal Procedure article 36.01(a)(1), which

provides as follows:

      (a) A jury being impaneled in any criminal action, except as provided
      by Subsection (b) of this article, the cause shall proceed in the
      following order:

             1.     The indictment or information shall be read to the jury
             by the attorney prosecuting. When prior convictions are alleged
             for purposes of enhancement only and are not jurisdictional,
             that portion of the indictment . . . reciting such convictions shall
             not be read until the hearing on punishment is held . . . .

TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1) (Vernon 2007).

      The Court of Criminal Appeals has long held that the reading of the charging

instrument is mandatory. Warren v. State, 693 S.W.2d 414, 415 (Tex. Crim. App.

1985). It serves to inform the accused of the charges against him and to inform the

jury of the charges against the accused. Id.

      Article 36.01 applies to the punishment phase of a bifurcated trial. Id. at

415–16. Enhancement paragraphs must be read, and the defendant’s plea to the

enhancement allegations must be entered during the punishment phase of the trial



                                          13
when a jury assesses punishment. See Ex parte Sewell, 742 S.W.2d 393, 395 (Tex.

Crim. App. 1987); see also Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App.

1973) (“There can be no question but that the enhancement portion of the

indictment should be read to the jury if the punishment is to be assessed by the jury

in light of Article 36.01(1).”).

      Here, however, the jury did not assess punishment. Appellant elected to

have the trial court assess punishment. The Court of Criminal Appeals has also

held that, when the punishment phase of the trial is held before the trial court, the

Code of Criminal Procedure does not require the reading of the enhancement

paragraphs and the receipt of the defendant’s plea to the enhancement paragraphs.

See Reed, 500 S.W.2d at 499; see also Davis v. State, 970 S.W.2d 747, 749 (Tex.

App.—Houston [14th Dist.] 1998, no pet.) (“[Article 36.01] does not support

Davis’ argument that the trial court erred by failing to read the indictment before

the punishment hearing because this article concerns the procedure for trial before

a jury.”); Garner v. State, 858 S.W.2d 656, 659 (Tex. App.—Fort Worth 1993, pet.

ref’d) (“[T]here is no requirement that the enhancement paragraphs be orally read

to the defendant when punishment is assessed by the trial court alone.”); Simms v.

State, 848 S.W.2d 754, 755 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d)

(“Appellant had the trial judge assess punishment; therefore, it was not necessary




                                         14
for the State to read the enhancement paragraphs, and appellant did not have to

plead to them.”).

      When the trial court assesses punishment, a defendant is not required to state

an oral plea to enhancement paragraphs on the record if he has previously

stipulated to the allegations in the enhancement paragraphs. Garner, 858 S.W.2d

at 659; see also Reed, 500 S.W.2d at 499 (“At the hearing on punishment, while

represented by retained counsel, appellant stipulated to the truthfulness of the

enhancement portion of the indictment. It would be difficult to say that he was

misled as to that with which he was charged.”); Davis, 970 S.W.2d at 749

(“Having stipulated to the truthfulness of these [enhancement] paragraphs, he

cannot be heard to complain that he did not know the charges against him.”).

      Here, after the jury found Appellant guilty of the offenses of evading arrest

and possession of a controlled substance, the trial court assessed Appellant’s

punishment. 3 The trial court did not read the two enhancement paragraphs in the

indictments at the beginning of the punishment hearing.             Rather, the State

introduced, and the trial court admitted, Appellant’s written stipulation of his 23

3
      We note that Appellant never objected to the trial court’s failure to read the
      enhancement paragraphs and to receive his plea to the enhancement paragraphs.
      See Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973) (“It would also
      appear that appellant may not raise the question for the first time on appeal. Had
      there been an objection, the problem could have been easily remedied by
      reintroducing the evidence, if any had been offered after the enhancement
      allegations of the indictment had been read, and the appellant’s plea thereto
      entered.”).

                                          15
prior convictions and the corresponding judgments and sentences. Among these,

Appellant stipulated that he had committed the two felonies alleged in the

enhancement paragraphs of the indictments. The trial court cautioned Appellant,

“You understand that by stipulating to this evidence, you’re giving up your right to

require the State to prove it?”       Appellant responded affirmatively that he

understood.

      Additionally, during his closing argument, defense counsel remarked, “[W]e

know that [punishment] starts at 25 years.” Appellant requested the trial court to

assess the minimum sentence of 25 years in prison. By these statements, Appellant

acknowledged that he was aware of the two enhancement allegations in the

indictments. See TEX. PENAL CODE ANN. § 12.42(d) (Vernon 2011) (providing

range of punishment between 25 and 99 years for felony conviction enhanced by

two prior felony convictions). The trial court sentenced Appellant to 30 years in

prison for each offense to run concurrently. After pronouncing the sentence, the

trial court clarified on the record that it had found both enhancement paragraphs to

be true.

      A review of the record shows that, although it did not read the enhancement

paragraphs to Appellant before assessing punishment, the trial court admitted

Appellant’s stipulation that he had committed the prior offenses alleged in the

enhancement paragraphs, received verbal confirmation from Appellant that he was



                                        16
aware of the consequences of the stipulation, and stated on the record that it found

the allegations in the enhancement paragraphs to be true. In addition, the record

shows that Appellant was aware of the enhancement paragraphs by his

acknowledgment of the minimum sentences he could receive.

      We conclude that, because it assessed punishment, the trial court was not

required to read the allegations in the enhancement paragraphs to Appellant. See

Reed, 500 S.W.2d at 499–500; see also Seeker v. State, 186 S.W.3d 36, 39 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d) (“When the trial court alone assesses a

defendant’s punishment, the court is not required to read . . . the enhancement

paragraphs or the findings to the defendant.”); Davis, 970 S.W.2d at 749; Garner,

858 S.W.2d at 659. Thus, we hold that the trial court did not err when it did not

read the enhancement paragraphs and receive a plea from Appellant regarding the

enhancement allegations.

      As to each appeal, we overrule Appellant’s third issue.

                                         Allen Charge4


4
      In Allen, the United States Supreme Court approved the use of supplemental jury
      instructions to encourage a deadlocked jury to continue deliberating in order to
      reach a verdict if the jurors could do so without violating their consciences. See
      Allen, 164 U.S. at 501, 17 S. Ct. at 157. The Texas Court of Criminal Appeals has
      defined an Allen charge as a “supplemental charge sometimes given to a jury that
      declares itself deadlocked.” Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex.
      Crim. App. 2006). The supplemental charge “reminds 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.” Id.

                                             17
      In his fourth issue, Appellant complains that the Allen charge, given with

respect to the possession offense, was “unduly coercive and had the net effect of

coercing the jury into arriving at a guilty verdict without the opportunity for free,

fair and full jury deliberations.” As pointed out by the State, the record does not

reflect that Appellant objected to the Allen charge in any respect.

      To preserve error concerning the submission of an Allen charge, the

defendant must object to the submission of the supplemental charge. See Thomas

v. State, 312 S.W.3d 732, 740 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)

(“There is no evidence in the record that appellant objected to the submission of

this [Allen] charge. Appellant has, therefore, waived any error with respect to the

trial court’s decision to deliver the Allen charge.”); see also TEX. R. APP. P.

33.1(a)(1)(A) (providing that, to preserve error, complaining party must make

complaint to trial court by timely request, objection, or motion that states grounds

for ruling sought with sufficient specificity to make trial court aware of complaint).

Because he did not object to the submission of the Allen charge, Appellant failed to

preserve for appellate review his complaint that the Allen charge was unduly

coercive. See Thomas, 312 S.W.3d at 740.

      We overrule Appellant’s fourth issue.




                                          18
                                      Conclusion

      We affirm the judgments of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Jennings, Higley, and Huddle.

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




                                           19
