                                      In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-17-00439-CR
                              __________________

                     BILLY MITCHELL KING, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 411th District Court
                      San Jacinto County, Texas
                        Trial Cause No. 12,070
__________________________________________________________________

                          MEMORANDUM OPINION

      Billy Mitchell King appeals from a jury verdict that resulted in his conviction

for possessing methamphetamine, a controlled substance. In three issues, King

argues (1) the trial court erred by denying his motion to suppress, (2) the evidence

the jury considered in his trial failed to prove he possessed the methamphetamine

found by police during their search of a travel-trailer parked next to his home, and



                                         1
(3) King’s attorney provided King with ineffective assistance during his trial. For

the reasons below, we affirm.

                                     Background

       Viewed in the light most favorable to the verdict, 1 the evidence shows that

one evening in July 2016, Joshua James, a deputy employed by the San Jacinto

County Sheriff, responded to a report about a suspicious woman seen approaching

the caller’s home. Deputy James responded to the call. When he arrived at the

caller’s home, the caller told him the woman went across the street to a travel-trailer

parked next to her neighbor’s home. The caller also informed the deputy that a man

named Paul Thornhill “was wanted” and he could be found “at the address across

the street.”

       From another officer, Deputy James learned that a warrant had been issued

for Thornhill’s arrest. And the caller told the deputy that King, the owner of the

house across the street, was using the one-bedroom trailer as his home. At trial, King

agreed that he had “care, custody, and control” of the trailer next to his home.




       1
        Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (explaining
“the reviewing court is required to defer to the jury’s credibility and weight
determinations” when reviewing a claim that argues the evidence fails to support the
jury’s verdict).
                                        2
      After speaking to the caller, Deputy James crossed the street and spoke to the

woman who the caller had reported to the police. He asked to get the others in the

trailer to come outside. Three people, including King, exited the trailer. When

Deputy James asked King if anyone else was in the trailer, King responded: “No.”

The deputy asked King if he could “go make sure[,]” and King told him “to go ahead,

that it was okay.”

      Deputy James and another officer entered the trailer to see if Thornhill was

inside. According to Deputy James, he did not know how big Thornhill was. When

the deputy entered the trailer’s bedroom he saw “something bundled under the

blanket” on the bed. Deputy James testified he thought a person might be under the

blanket, so he lifted the blanket off the bed. Underneath the blanket, Deputy James

saw a “silver colored grinder” that contained a substance the deputy believed to be

marijuana. The deputy also saw an open pink case containing a syringe, two spoons,

and two bottles like those used for pills.

      After Deputy James left the trailer, he told the other officers there to detain

the woman along with the other three people he saw exit the trailer. The four

individuals were advised of their rights.2 Two of them refused to talk to police. King,




      2
          See Miranda v. Arizona, 384 U.S. 436, 474 (1966).
                                         3
however, told police that the marijuana they found was his. King then signed a

document that authorized police to search the trailer for drugs.

      Deputy James re-entered the trailer. He inspected the contents of the pill

bottles in the pink case. In one, he found a baggie that contained a crystal-like

substance. The other contained a “rolled up joint[.]” One of the other officers on the

scene tested the substance in the baggie. The field test was positive for

methamphetamine.

      The police arrested the four individuals and took them to jail. A lab later tested

the crystal-like substance in the baggie. The report on the test shows the

methamphetamine and the baggie weigh 1.21 grams. In December 2016, a grand

jury indicted King for possessing between one and four grams of methamphetamine.

      Before King’s trial, King’s attorney never moved to suppress the evidence

obtained by police when they searched the trailer. At trial, the attorney asked to

suppress the evidence, but only after the evidence obtained in the search was already

before the jury and after both parties had rested in the case. When King finally

moved to suppress the evidence obtained by police in the search, he argued the

evidence showing the police found drugs in the trailer was inadmissible because the

police obtained the evidence without King’s valid consent and without a warrant.

Without explanation, the trial court denied King’s oral motion to suppress.

                                          4
                                   Sufficiency Issue

                                  Standard of Review

      For convenience, we address King’s second issue first. To determine whether

the record contains enough evidence to support a defendant’s conviction, we view

the evidence the jury considered in the trial in the light that most favors the verdict

and determine whether the evidence before the jury reasonably supports the jury’s

verdict under a standard of beyond reasonable doubt.3 This standard “recognizes the

trier of fact’s role as the sole judge of the weight and credibility of the evidence after

drawing reasonable inferences from the evidence.”4 As a reviewing court, our role

is to determine “whether the necessary inferences made by the trier of fact are

reasonable, based upon the cumulative force of all of the evidence.” 5

      In reviewing a jury’s verdict, we presume the jury resolved conflicting

inferences that may exist in the evidence to uphold the verdict if doing so is

reasonable.6 By favoring the verdict the jury reached, the reviewing court must be



      3
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see also Brooks, 323
S.W.3d at 902.
      4
          Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011).

      5
          Id.; see also Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012).

                                            5
deferential to the jury’s right to determine whether evidence is (or is not) credible.7

And the jury also has the right to decide what weight it wants to give the evidence

before it in reaching its verdict.8 Put another way, we may not sit as a thirteenth juror

in the appeal and substitute our views for the jury’s. 9 Moreover, when the parties

disagree about the logical inferences available from the evidence the jury considered,

if two reasonable views of the evidence exist—one that allows the jury to convict

and the other to acquit—we must again defer to the decision the jury reached. 10 That

said, a jury cannot arrive at its verdict based on “mere speculation or factually

unsupported inferences or presumptions.” 11

      While the State bears the burden of proving a criminal case beyond a

reasonable doubt, it need not introduce direct evidence to establish the defendant is



      6
       Brooks, 323 S.W.3d at 922; see also Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007).
      7
          See Brooks, 323 S.W.3d at 899.
      8
          Id.
      9
          Id.
      10
           Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006).
      11
           Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).


                                           6
guilty of the crime. 12 Instead, the law merely requires that the evidence “point

directly and independently to the defendant’s guilt.”13 The reviewing court will find

the evidence sufficient when “the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.”14

                                      Analysis

      To prove the defendant possessed a controlled substance, the State must prove

the defendant possessed the substance identified in the indictment and establish the

defendant knew the substance was one that the State controls.15 Possession is defined

as “actual care, custody, control, or management.” 16 To prove the unlawful-

possession element for the crime of possessing methamphetamine, the State must

prove two things: (1) the defendant exercised care, custody, control, or management

over the methamphetamine; and (2) the defendant knew the substance was

methamphetamine. 17 Here, since the trailer in which the police found the



      12
           Id.
      13
           Id. at 13 (cleaned up).
      14
           Id.
      15
           See Tex. Health & Safety Code Ann. § 481.115(a).
      16
           Tex. Penal Code Ann. § 1.07(a)(39) (Supp.).

                                          7
methamphetamine was not exclusively in King’s possession at the time of his arrest,

the State also has the burden to show that King’s connection to the

methamphetamine “was more than just fortuitous.”18 This is the affirmative links

rule, which requires the State to link the accused to the contraband if the police find

the contraband in a location not exclusively under the defendant’s control.19

Examples of categories of the types of affirmative links that may establish the

accused possessed the contraband include the following:

            •    the accused’s presence when the police conducted the search;
            •    whether the contraband was in plain view;
            •    the accused’s proximity to and the accessibility of the narcotic;
            •    whether the accused was under the influence of narcotics when
                 arrested;
            •    whether the accused possessed other contraband or narcotics when
                 arrested;
            •    whether the accused made incriminating statements when arrested;
            •    whether the accused sought to flee;
            •    whether the accused made furtive gestures;
            •    whether there was an odor of contraband;
            •    whether other contraband or drug paraphernalia were present;
            •    whether the accused owned or had the right to possess the place where
                 the police found the drugs;
            •    whether the drugs the police found were enclosed;


      17
         See Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011)
(cleaned up).
      18
           Id.
      19
           Id.
                                            8
           • whether the accused had a large amount of cash in his possession when
             the police arrested him; and
           • whether the accused’s conduct shows he was consciousness of his
             guilt.20

      The number of links proven in a given case are not dispositive of whether

enough evidence is before the jury to support the defendant’s conviction on a charge

alleging he possessed an illegal drug.21 And the State need not disprove every

conceivable alternative theory the defendant may argue during his trial to convince

the jury the State failed to prove he possessed the controlled drugs.22

      Here, the evidence allowed the jury to conclude that King exercised care,

custody, control, or management over the methamphetamine in the trailer. First,

King linked himself to the marijuana on the bed: He told the police the marijuana in

the trailer was his. Second, the marijuana in the bottle was in the same pink case

with the bottle that contained the baggie of methamphetamine. Third, the marijuana

and the methamphetamine in the bottles were packaged similarly, both substances

were in bottles used for pills. Fourth, King was inside the trailer when police arrived,

and nothing shows he did not have access to the bedroom there. Fifth, the jury could



      20
           See Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016).
      21
           See Evans, 202 S.W.3d at 162.
      22
           Tate, 500 S.W.3d at 413.
                                           9
have concluded that King had a greater right than his guests to possess the bedroom

based on the evidence the jury heard showing that King was living there.

       We conclude the combined and cumulative force of the evidence allowed the

jury to conclude that King intentionally or knowingly possessed the

methamphetamine in the bedroom of his trailer. 23 We overrule King’s second issue.

                             Ruling on Motion to Suppress

       In issue one, King argues the trial court erred when it denied his motion to

suppress. But King failed to file a timely motion to suppress the evidence police

obtained in the search. King’s oral motion was not timely, as he moved to suppress

the evidence from the search only after the jury heard all the evidence presented in

the case.24 By then, the officers had testified about the drugs they found in King’s

trailer.

       When King moved to suppress the evidence from the search, both parties had

rested in the case. The State argued King waived his request to suppress the evidence




       23
            See Evans, 202 S.W.3d at 162; see also Brooks, 323 S.W.3d at 902 n.19.
       24
          Tex. R. App. P. 33.1(1) (as a prerequisite to presenting a complaint to a
reviewing court, requiring the parties to make a timely request, objection, or motion
in the trial court that states the grounds for the ruling the party seeks) (emphasis
added); see also Garza v. State, 126 S.W.3d 79, 81-82 (Tex. Crim. App. 2004).
                                          10
because he failed to lodge a timely objection to the testimony the jury heard in the

trial. We agree with the State.

      Several reasons exist for the rule requiring parties to make timely and specific

objections to evidence in trials. As a practical matter, the trial court needs to know

the reasons a party wants to object to evidence so the other party can consider

whether the matter could be proven with other evidence.25 And requiring objections

to evidence before the jury hears it prevents exposing the jury to evidence it should

not consider in deciding the issues of fact needed to reach a verdict in the trial. 26

      Generally, a defendant must file a timely motion to suppress evidence the

defendant wants the trial court to exclude in his trial.27 When the defendant’s request

is untimely, he forfeits the right he would have otherwise had to complain about the

fact the jury heard the evidence he failed to timely object to in the trial. 28




      25
           See Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977).
      26
           Garza, 126 S.W.3d at 82.
      27
          Krause v. State, 243 S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d).
      28
         Nelson v. State, 626 S.W.2d 535, 536 (Tex. Crim. App. 1981) (concluding
the defendant’s motion to suppress, filed after the parties rested, was untimely and
preserved nothing for appellate review).
                                         11
      Here, King waited until both parties rested before raising any question about

the admissibility of the evidence from the search. We hold King failed to preserve

his complaint the evidence was inadmissible based on his argument the police

conducted an illegal search.29

                                 Ineffective Assistance

      In issue three, King argues he received ineffective assistance of counsel

resulting in a denial of his right to counsel. King claims the attorney who represented

him in his trial was ineffective because he (1) failed to explain sufficiently that, based

on the allegations in the indictment alleging he committed other crimes, he would

not qualify for probation or to secure his release from jail before the trial by using a

bond; (2) failed to argue that King did not know and had no control over the

methamphetamine discovered in the search; (3) failed to make an opening statement

and made only a “very limited” closing argument; (4) failed to file a timely motion

to suppress; (5) failed to argue in presenting his motion to suppress that King had

not voluntarily consented to the search; (6) failed to ask King to provide a sample of

his hair, which King argues could have been tested to determine whether he used

methamphetamine; (7) failed to have an independent lab test the substance in the

baggie to confirm whether it contained methamphetamine; (8) failed to have finger


      29
           Tex. R. App. P. 33.1(1).
                                           12
print testing done on various items of evidence to see if King’s fingerprints were on

them; (9) failed to argue the State did not prove each element required to show he

possessed methamphetamine; and (10) failed to present any evidence to contradict

the State’s evidence about the weight of the crystal-like substance in the baggie

recovered by police.

      To establish a claim of ineffective assistance of counsel, the defendant must

show that the performance of his attorney fell below an objective standard of

reasonableness, and that, but for counsel’s alleged error, the outcome of the

proceedings would have probably been different. 30 When making an ineffective

assistance of counsel claim, the defendant bears the burden to develop the facts

needed to show the attorney who represented the defendant in his trial was

ineffective based on the standards identified by the United States Supreme Court in

Strickland.31 Generally, to prove a claim of ineffective assistance, the defendant

must overcome the “strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance.” 32


      30
           Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
      31
         See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (citing
Strickland, 466 U.S. at 689).
      32
         Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing
Strickland, 466 U.S. at 689).
                                     13
       The record before us, however, shows King never filed a motion for new trial.

For that reason, King’s attorney never had the opportunity to answer the complaints

King raises about him for the first time on appeal. Generally, when the defendant

failed to raise his claim of ineffective assistance in the trial court, the record available

to the reviewing court in the defendant’s appeal is rarely sufficient to allow the

defendant to show that his trial attorney committed errors violating the standards

governing attorneys established by Strickland.33 Ordinarily, the defendant

complaining about the conduct of his trial attorney should allow his attorney an

opportunity to explain the actions the defendant is criticizing before the reviewing

court denounces the conduct as ineffective.34 If no explanation exists, the appellate

court should not find the attorney provided ineffective assistance unless the record

establishes the conduct was “so outrageous that no competent attorney would have

engaged” in the conduct that is at issue in the appeal.35

       On this record, we cannot tell why King’s trial attorney engaged in the conduct

that King complains about in his appeal. With one exception, King’s criticisms about


       33
            Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012).
       34
            Id.
       35
            Id. (cleaned up).


                                            14
his attorney may be explained as matters relating to trial strategy. But explaining

away most of the criticism under a theory of trial strategy fails to explain why a

competent attorney would wait until the evidence closed before presenting a motion

to suppress the evidence police obtained in their search of King’s trailer.36

      In any event, even were we to assume the standards of reasonable professional

assistance obligated King’s attorney to move to file a timely motion to suppress the

evidence from the search, King must still establish that by filing a timely motion, he

“more likely than not” would have achieved a different result in his case.37 Thus, he

must show the trial court would have likely granted his motion to suppress had he

presented his motion promptly.

      Under the Fourth Amendment, citizens enjoy the right “to be secure in their

persons . . . against unreasonable searches and seizures.” 38 Unless the search falls

within certain well-defined exceptions, searches the police conduct without warrants

are, per se, unreasonable. 39 Voluntary consent is one of these exceptions, and it


      36
           Strickland, 466 U.S. at 690.
      37
           Id. at 693.
      38
           U.S. CONST. amend. IV; see also Tex. Const. art. I, § 9.
      39
           Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012).


                                           15
allows the police to search a defendant’s premises when the defendant consents to

the search without first obtaining a warrant. 40 When construed in a way that supports

the trial court’s ruling denying King’s motion to suppress, the evidence shows King

consented to Deputy James’ request to enter the trailer to see if Thornhill was there.

And the evidence supports the trial court’s implied finding that King voluntarily

signed the consent-to-search form, as his signature is on it and it allowed the police

to re-enter the trailer and search for drugs. Thus, the evidence available to the court

supports the trial court’s ruling that King voluntarily consented to the searches at

issue in his appeal. 41

       Our conclusion is supported by Jackson v. State, 42 a case decided in 1998 by

the Court of Criminal Appeals. In Jackson, the defendant complained that his trial

attorney failed to provide him effective assistance because the attorney failed to

challenge the legality of the defendant’s arrest.43 Jackson appealed. On appeal, the

court of appeals concluded Jackson’s arrest was illegal and reversed his conviction.44



       40
            Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010).
       41
            See Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012).
       42
            973 S.W.2d 954 (Tex. Crim. App. 1998).
       43
            Id. at 955.

                                           16
But the State appealed to the Court of Court of Criminal Appeals, which explained

that to prevail on appeal, Jackson had to burden of proving prejudice by proving that

had he filed a timely request, his “motion to suppress would have been granted.”45

According to the Court, to meet that burden Jackson needed to establish the evidence

in the record showed the police engaged in improper conduct. 46

      Here, nothing in the record required the trial court to conclude the police

engaged in improper conduct when they secured King’s consent for the two searches

conducted in his trailer. Instead, the record shows Deputy James obtained King’s

consent to enter the trailer to search for Thornhill. After finding drug paraphernalia

in the trailer’s bedroom, Deputy James obtained King’s written consent to re-enter

the trailer and search it for drugs. On this record, King has failed to establish that he

likely would have prevailed on a motion to suppress had one been timely filed.47

      For that reason, we cannot sustain King’s complaint that his attorney’s failure

to promptly move or object to exclude the evidence from the searches conducted by



      44
        See Jackson v. State, 921 S.W.2d 809 (Tex. App.—Houston [14th Dist.]
1996), rev’d, 973 S.W.2d at 957.
      45
           Jackson, 973 S.W.2d at 957.
      46
           Id.
      47
           Id.
                                           17
the police prejudiced the outcome of his trial. And we conclude that King failed to

establish he received ineffective assistance of counsel for any of the other reasons

identified in his appeal. 48 We overrule King’s third issue.

      For the reasons explained above, we affirm the trial court’s judgment.

      AFFIRMED.



                                                     _________________________
                                                          HOLLIS HORTON
                                                               Justice

Submitted on April 16, 2019
Opinion Delivered November 13, 2019
Do Not Publish

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




      48
           See Valtierra, 310 S.W.3d at 448.
                                          18
