                                                                                  ACCEPTED
                                                                             01-14-00513-CR
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                        2/11/2015 4:50:55 PM
                                                                        CHRISTOPHER PRINE

Nos. 01-14-00513-CR and 01-14-00514-CR                                                CLERK



                    In the
             Court of Appeals                            FILED IN
                   For the                        1st COURT OF APPEALS
                                                      HOUSTON, TEXAS
          First District of Texas
                                                  2/11/2015 4:50:55 PM
                 At Houston
                                                  CHRISTOPHER A. PRINE
                                               Clerk

       Nos. 1330898 & 1330899
          In the 351st District Court
           Of Harris County, Texas
          
      AARON CHARLES BURTON
                  Appellant
                     v.
        THE STATE OF TEXAS
                   Appellee
          
        State’s Appellate Brief
          

                                        DEVON ANDERSON
                                        District Attorney
                                        Harris County, Texas

                                        SARAH ROBERTS
                                        Assistant District Attorney
                                        Harris County, Texas

                                        CLINTON A. MORGAN
                                        Assistant District Attorney
                                        Harris County, Texas
                                        State Bar No. 24071454
                                        morgan_clinton@dao.hctx.net

                                        1201 Franklin, Suite 600
                                        Houston, Texas 77002
                                        Tel: (713) 755-5826
                                        FAX: (713) 755-5809

                                        Counsel for the Appellee

        Oral Argument Not Requested
                   Statement Regarding Oral Argument

      The appellant requested oral argument, though he gave no particular

reason why. The State believes the briefs in this case adequately apprise this

Court of the issues and the law, and any marginal benefit from oral argument

does not justify the considerable amount of time that preparation for oral

argument requires of the parties and the Court. Therefore, the State does not

request oral argument.




                                      i
                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Sarah Roberts
            — Assistant District Attorney at trial

      Clinton A. Morgan
             Assistant District Attorney on appeal

Appellant:

      Aaron Charles Burton

Counsel for the Appellant:

      Hattie Shannon
            — Counsel at trial

      Tony Aninao
           — Counsel on appeal

Trial Judge:

      Leslie Brock Yates
             Presiding judge




                                       ii
                                              Table of Contents

                                                                                                                 Page

Statement Regarding Oral Argument .......................................................... i
Identification of the Parties ........................................................................ ii
Table of Contents .......................................................................................... iii
Index of Authorities ..................................................................................... iv
Statement of the Case ................................................................................... 1
Statement of Facts ......................................................................................... 1
Reply to Point of Error One
   The evidence is sufficient to show that the appellant — the sole occupant of
   a vehicle — knowingly possessed the drugs inside the vehicle. .......................... 2
Reply to Point Two
   Factual-sufficiency review has been subsumed within legal-sufficiency
   review, thus this point presents nothing to review. ................................................... 5
Reply to Point Three
   The trial court’s failure to arraign the defendant prior to the beginning of
   the punishment phase was harmless. .............................................................................. 6
Reply to Point Four
   The Allen charge was not coercive. ................................................................................... 7
Conclusion .................................................................................................... 10
Certificate of Compliance and Service ..................................................... 11




                                                           iii
                                                 Index of Authorities



Cases
Allen v. United States
  164 U.S. 492 (1896) ................................................................................................................. 8
Barnett v. State
  189 S.W.3d 272 (Tex. Crim. App. 2006) ..................................................................... 8, 9
Evans v. State
  202 S.W.3d 158 (Tex. Crim. App. 2006) ..................................................................... 3, 4
Hervey v. State
  131 S.W.3d 561 (Tex. App.—
  Waco 2004, no pet.) ................................................................................................................. 7
Hurtado v. State
 881 S.W.2d 738 (Tex. App.—
 Houston [1st Dist.] 1994, pet. ref’d)................................................................................. 4
Jackson v. State
  105 S.W.3d 321 (Tex. App.—
  Houston [14th Dist.] 2003, pet. ref’d) ............................................................................. 6
Jones v. State
  ___ S.W.3d ___, 01-13-00984-CR, 2015 WL 162216 (Tex. App.—
  Houston [1st Dist.] Jan. 13, 2015, no. pet. h.) ............................................................... 5
Linton v. State
  15 S.W.3d 615 (Tex. App.—
  Houston [14th Dist.] 2000, pet. ref’d) ............................................................................. 6
Ly v. State
  273 S.W.3d 778 (Tex. App.—
  Houston [14th Dist.] 2008, pet. ref’d) ............................................................................. 4
Poindexter v. State
  153 S.W.3d 402 (Tex. Crim. App. 2005) .......................................................................... 2
Taylor v. State
  106 S.W.3d 827 (Tex. App.—
  Dallas 2003, no pet.) ............................................................................................................... 5



                                                                   iv
                                 Statement of the Case

       The appellant was indicted for evading arrest with a motor vehicle and

possession of a controlled substance. (1 CR 8; 2 CR 8).                 1   Both indictments

alleged two prior felony convictions, with one having been committed after

the other became final. (1 CR 8; 2 CR 8). The appellant pleaded not guilty to

both charges. (3 RR 3-4). A jury found him guilty as charged. (1 CR 87-88; 2 CR

84, 88). The appellant pleaded true to all the enhancement allegations and the

trial court assessed his punishment in both cases at thirty years’ confinement,

with the sentences to run concurrently. (1 CR 88, 2 CR 88). The appellant filed

a timely notice of appeal for both cases. (1 CR 91; 2 CR 91). The records do not

contain trial court certifications of the appellant’s right of appeal.


                                   Statement of Facts

       Harris County deputy sheriff Pedro Gutierrez could not see the license

plate on the appellant’s car so he conducted a traffic stop. (3 RR 26-27).

Gutierrez identified the appellant through his driver license. (29-30). As

Gutierrez was walking back to his car to run a warrant check on the appellant,


1 For ease of citation, the State will refer to the clerk’s records in these as though they were
sequentially-numbered volumes. Thus, the record for 01-14-00513-CR (the evading case)
will be 1 CR, and the record for 01-14-00514-CR (the possession case) will be 2 CR. Also,
the State notes that the clerk failed to paginate the record for the evading case. For 1 CR, the
State will use the PDF page numbers.
                                               1
he shone his flashlight into the backseat of the appellant’s car and saw what he

believed to be a large bag of marihuana sitting in plain view. (3 RR 34-35).

Gutierrez turned around to re-approach the appellant about this matter, at

which point the appellant drove away. (3 RR 38).

      Gutierrez flagged down two other deputy sheriffs who happened on the

scene, and the three of them followed the appellant on a mile-long chase until

the appellant came to a dead end on Sleepytime Lane, abandoned his car, and

ran into the woods. (3 RR 43-45). The deputies pursued the appellant into the

woods, but he got away. (3 RR 55). When the deputies inventoried the

appellant’s car prior to having it towed, they found in the center console a

bottle containing 3.3 grams of PCP. (3 RR 58-60, 137-38).


                             Reply to Point of Error One


The evidence is sufficient to show that the appellant — the sole occupant
of a vehicle — knowingly possessed the drugs inside the vehicle.

      In his first point, the appellant asserts that the evidence is insufficient to

prove that he possessed the PCP found in the car. To support a conviction for

possession of a controlled substance, the evidence must show knowing

possession. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).

The State must prove that the accused (1) exercised actual care, custody,


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

was contraband. Ibid.

        The appellant bases his argument on the links doctrine, and an analysis

of the specific links that the Court of Criminal Appeals approved of in Evans v.

State, 202 S.W.3d 158 (Tex. Crim. App. 2006). The links doctrine holds that the

mere presence of the accused at the location where drugs are found is

insufficient by itself to establish actual care, custody, or control (i.e.

possession) of those drugs. Evans, 202 S.W.3d, at 162. Thus, when police found

Evans sitting next to a coffee table that was covered in drugs, and he claimed

that the drugs belonged to someone else who lived in the house, the State had

to produce evidence to show that Evans possessed the drugs. See id. at 161-62.

The links doctrine is meant to protect innocent bystanders from being

convicted of drug possession for merely being near other people’s drugs. See

ibid.

        In Evans, the Court of Criminal Appeals gave its approval to a non-

exhaustive list of some fourteen links that might show that a defendant

possessed drugs, and then noted that the list was “not a litmus test”:

        (1) the defendant’s presence when a search is conducted; (2)
        whether the contraband was in plain view; (3) the defendant’s
        proximity to and the accessibility of the narcotic; (4) whether the
        defendant was under the influence of narcotics when arrested; (5)
        whether the defendant possessed other contraband or narcotics
                                        3
      when arrested; (6) whether the defendant made incriminating
      statements when arrested; (7) whether the defendant 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 were 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.


Id. at 162 n. 12. The State believes several of these factors are applicable (1, 3,

5, 7, 10, 12, 14), but, as the Evans court observed, it is “not the number of links

that is dispositive, but rather the logical force of all the evidence, direct and

circumstantial.” Id. at 162.

      The appellant was the sole occupant of the vehicle. See Hurtado v. State,

881 S.W.2d 738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (status

as sole occupant of vehicle indicative of knowing possession). While he was

not present at the time the search was conducted, he was the last person in

the car before police searched it. The drugs were located near the appellant in

an area that was easily accessible to him. See Ly v. State, 273 S.W.3d 778, 782

(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (presence of drugs in center

console produced inference that driver possessed them). The appellant had a

bag of marihuana in the back seat, and the fact that he started driving away

when Gutierrez shone his flashlight into the backseat, and then threw the
                                        4
marihuana out of the window during the chase (3 RR 45) indicates that the

appellant knowingly possessed the marihuana. Indeed, the appellant’s flight,

both on car and then on foot, is the strongest evidence that the appellant knew

he possessed the PCP. See Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—

Dallas 2003, no pet.) (flight is strong evidence of guilt in circumstantial

possession case). The combined logical force of these facts is sufficient to

support the jury’s verdict. Accordingly, this Court should reject the appellant’s

first point of error.


                              Reply to Point Two


Factual-sufficiency review has been subsumed within legal-sufficiency
review, thus this point presents nothing to review.

       In his second point, the appellant claims that the evidence is “factually

insufficient” to support his conviction. (Appellant’s Brief at 22-30). This point

is based on outdated caselaw, and this Court, in accord with binding caselaw

from the Court of Criminal Appeals, no longer conducts factual-sufficiency

review as a standalone analysis. See Jones v. State, ___ S.W.3d ___, 01-13-00984-

CR, 2015 WL 162216, at *5 (Tex. App.—Houston [1st Dist.] Jan. 13, 2015, no.

pet. h.).




                                       5
                             Reply to Point Three


The trial court’s failure to arraign the defendant prior to the beginning
of the punishment phase was harmless.

      At the beginning of the punishment phase, the State and the appellant

stipulated that the appellant had 23 prior convictions: 18 misdemeanors and

5 felonies. (5 RR 3; State’s Ex. 10). Judgments for these convictions were

admitted into evidence as part of the stipulation. (See State’s Exs. 10A-10V). In

addition, the appellant also stipulated to several adjudicated offenses,

including possession of cocaine and PCP at the time of his arrest. (State’s Ex.

11). The trial court found the enhancement paragraphs true. (6 RR 3).

      In his third point of error, the appellant complains that he was not

arraigned at the beginning of the punishment phase. (Appellant’s Brief at 30-

36). It is true that there was no formal arraignment in this case, and that the

appellant never requested one. However, despite the appellant’s repeated

citations to outdated caselaw, it is well-settled that the failure to arraign a

defendant prior to the punishment phase is an error subject to the harmless-

error analysis of Rule 44.2(b) and will merit reversal only if the error had a

substantial impact on the trial. See Linton v. State, 15 S.W.3d 615, 620 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d); Jackson v. State, 105 S.W.3d 321,

330 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Indeed, at least one

                                       6
appellate court has held that the failure to object to a failure to arraign the

defendant constitutes waiver of the matter. Hervey v. State, 131 S.W.3d 561,

565 (Tex. App.—Waco 2004, no pet.).

      Whether the matter was waived, it is obvious that he was not harmed by

the failure to read the enhancement paragraphs and take his plea. The

appellant knew that the State did not waive its enhancement allegations. (See

5 RR 6 (defense counsel arguing to trial court and accepting that minimum

sentence was 25 years, which is only the case in cases with two enhancement

allegations)). Also, the appellant’s stipulation was, in effect, a plea of “true” to

the enhancements, as two of the prior convictions to which he stipulated were

the enhancement allegations. (Compare CR 8 to State’s Exs. 10B, 10D). The

appellant has alleged no harm in his brief. Because the appellant was not

harmed by the trial court’s failure to arraign him, this Court should reject his

third point.


                               Reply to Point Four


The Allen charge was not coercive.

      The presentation of evidence in this case lasted for three-and-a-half

hours. (2 CR 97). The jury deliberated for an hour and fifteen minutes that

afternoon, and the next day it deliberated for another hour, at which point it

                                         7
sent out a note stating that it had reached a verdict on the evading-arrest

charge, but was deadlocked 10-2 on the possession charge. (CR 86, 97-98). At

that point, the trial court brought out the jury and read them an Allen charge,

instructing them that if they failed to reach a verdict the case would probably

be retried on the same evidence to a different jury and “there is no reason to

hope the next jury will find these questions any easier to decide than you have

found them.” (CR 85, 98). The instruction concluded by telling the jury “to

continue deliberations in an effort to arrive at a verdict that is acceptable to all

members of the jury, if you can do so without doing violence to your

conscience.” (CR 85). After another half-hour of deliberations, the jury reached

its verdict. (CR 98).

      In his fourth point of error, the appellant claims that the trial court erred

by coercing the jury. (Appellant’s Brief at 36-45). The appellant raised no

objection relating to this matter at trial. (See 6 RR 3-4).

      An Allen charge is a permissible way for a trial court to encourage the

jury to continue their deliberations and attempt to reach a verdict. See Barnett

v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006) (citing Allen v. United

States, 164 U.S. 492, 501 (1896)). A trial court can fall into error if it engages in

coercive tactics in addition to giving an Allen charge, but the record does not

reveal anything of the sort here; moreover, if the trial court had engaged in
                                         8
coercive tactics, the appellant’s failure to properly raise an objection in the

trial court leaves nothing for review. See Barnett, 189 S.W.3d at 278

(defendant preserved error by requesting mistrial after trial court told two

holdout jurors that it had a “problem” with them).

      The appellant does not point to any actual error in the language of trial

court’s instruction, nor does he complain about any action by the trial court.

His complaint seems to be that that “the trial court essentially communicated

its opinion of the case by it [Allen] charge to the jury and the two ‘hold outs’

which properly translated means ‘…Why on earth are you taking so long to

find this defendant guily? DELIBERATE SOME MORE!’” (Appellant’s Brief at

44) (emphasis in original). The State believes the appellant has mistranslated

the trial court’s instruction. Nothing in the instruction asked the jury to reach

a particular verdict, and nothing in the record indicates that the trial court

behaved in such a way as to communicate a request for a particular verdict.

The trial court merely instructed the jury in a manner designed to create a

verdict rather than a mistrial. This was permissible. Accordingly, this Court

should reject the appellant’s fourth point.




                                        9
                                 Conclusion

      The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.

                                                  DEVON ANDERSON
                                                  District Attorney
                                                  Harris County, Texas


                                                  /s/ C.A. Morgan
                                                  CLINTON A. MORGAN
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002-1923
                                                  (713) 755-5826
                                                  Texas Bar No. 24071454




                                      10
                     Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting function, the

portion of this brief for which Rule of Appellate Procedure 9.4(i)(1) requires a

word count contains 1,939 words.

      I also certify that I have requested that efile.txcourts.gov electronically

serve a copy of this brief to:

      Tony Aninao
      taninao@hotmail.com



                                                 /s/ C.A. Morgan
                                                 CLINTON A. MORGAN
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002-1923
                                                 (713) 755-5826
                                                 Texas Bar No. 24071454


Date: February 11, 2015




                                       11
