Opinion issued April 9 , 2015

In The 

## Court of Appeals For The 

## First District of Texas

————————————

NO. 01
- 14
- 0051 3
- CR NO. 01
- 14
- 00514
- CR

———————————— AARON CHARLES BURTON , Appellant V. THE STATE OF TEXAS , Appell e e
On Appeal from the 351st District Cour t Harris County, Texas Trial Court Ca se No s . 1330898 & 1330899

MEMORANDU M 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,2 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 fai ling 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 out standing warrants, Deputy Gutierrez sh i ne d his flashlight in the back of Appellant’s car. He saw, in plain

1 See T EX

. P ENAL C ODE A NN

. 38.04(b)(2)(A ) (Vernon Supp. 2014 ) (evading arrest); T EX

. H EALTH & S AFETY C ODE A NN

. § 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)

.3 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 see n 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 wood ed area . Two of the officers gave chase but were not able to apprehend Appellant that night. Bef ore it was towed, t he 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 lab oratory 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 14 gram and less than 4 grams

. Each indictment also contained two enhancement paragraphs alleging that Appellant had previously been convict ed 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 A ppellant’s car. The employee testified that her analysis of the substance revealed it was 3.3 40 grams of PCP, including adulterants and dilutants. After beginning deli berations, 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, t he 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 as sess punishment. At the punishment hearing, Appellant , both orally and in writing , stipulate d that he had previously been convicted of 23 offenses . These included 1 7 misdemeanors and 6 felonies. Among these w ere the two felony offense s form ing the basi s of the two enhancement paragraphs in the indictments. The stipulation of5 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 req uested 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 pr ison. The trial court sentenced Appellant to 30 years in prison for each offense, with the sentences to run concurrently. Appellant now appe als 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, A ppellant contends that the State failed to prove that he knowingly possessed the PCP, an element of the cha rged offense. See T EX
. H EALTH & S AFETY C ODE A NN
. §§ 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 a6 legal or a factual sufficiency challenge

. See Ervin v. State , 331 S.W.3d 49, 53

– 54 (Tex. App.

— Hou ston [1st Dist.] 2010, pet. ref’ d) (construing majo rity 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 ch arged 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 c onclusively 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 re sponsibility of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and7 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 , 2 14 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 T EX
. H EALTH & S AFETY C ODE A NN . §§ 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.8 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 illega l 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 contrab and

. 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. Possibl e links include, but are not limited to, the following: (1) whether the defendant was present when the search was conducted; (2) whether the contraband9 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 a ttempted 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 th e 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 16 2 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 w eight 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, 83110 (Tex. App.

— Dallas 2003, no pet.). A factor that is of l ittle 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 infe r 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

nu mber of li nks, 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, A ppellant cites a lack of d irect 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 acknowledge s that he was driving the car , but asserts that the evidence did not show knowledge or

awarene ss 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 po ints out that m ere presence in the same place as the controlled substance alone is not sufficient to justify a finding of possession. See11 Evans , 202 S.W.3d at 161

– 62; Harrison v. State , 555 S.W.2d 736, 737 (Tex. Crim. App. 1977). Nonetheless, A ppellant’s analysis does not appropriately view the evidence in the light most favorable to the verdict and improperly discounts significant evidence, link ing him to the PCP. We also note that t he 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 c ar and was its sole occupant . T his 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 a ppellant’s possession and ownership of vehicle as link to illegal drugs recovered from co nsole ) ; see also Stout v. State , 426 S.W.3d 214 ( Tex. App.

— Houston [1 st Dist.] 2012 , no pet. ) (relying, in part, on appellant’s status as driver of vehicle to link him to firearm concealed beh in d radio’s faceplate). In addition , t he PCP was accessible to A ppellant because it was located under an armrest in a console next to the driver ’ s seat

. See Ly , 273 S.W.3d at 782 (determin ing 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.

— Hou ston [1st Dist.] 2005, pet. ref’ d) ( determining that contraband was “conveniently accessible” to defendant when it was “within the close vicinity12 of the accused and easily accessible while in the vehicle so as to s uggest that the accused had knowledge of the contraband and exercised control over it.”).
S everal other f actors also affirmatively link ed A ppellant 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 cent er 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 A ppellant knowingly possessed it. See Evans , 202 S.W.3d at 166. Although
A ppellant 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 l ight most favorable to the verdict, we conclude that a rational fact finder could have found beyond a reasonable doubt that A ppellant knowingly possessed the PCP. See Ly , 273 S.W.3d at 782

.13 We overrule Appellant’s first and second issues. Reading of Enh ancement 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 p unishment

. 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 orde r: 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 an d are not jurisdictional, that portion of the indictment . . . reciting such convictions sh all not be read until the hearing on punishment is held . . . . T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.01(a)(1) (Vernon 2007). The Court of Criminal Appeals has long held that t he reading of the charging instrument is mandatory

. Warren v. State , 693 S.W.2 d 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. E nhancem ent paragraphs must be read , and the defendant’s plea to the enhancement allegations must be entered during the punishment phase of the trial14 when a jury assess es 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 3 6.01] 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 W orth 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 necessary15 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 s tate 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 re tained 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 truthfulnes s of these [enhancement] paragraphs, he cannot be heard to complain that he did not know the charges against him.”). Here, after the jury found A ppellant guilty of the offenses of evading arrest and possession of a controlled substance , the trial court ass essed A ppellant’s punishment. 3 The trial court did not read the two enhancement paragraphs in the indictment s at the beginning of the punishment hearing

. Rather , the State introduced, and the trial court admitted, A ppellant’s written stipulation of his 2 3

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 firs t 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 h ad been read, and the appellant’ s plea thereto entered.”)

.16 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 indictment s . The trial court cautioned Appellant,

“ You understand tha t by stipulati ng 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] sta rts 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 T EX
. P ENAL C ODE A NN
. § 1 2.42(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 pronouncin g 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 A ppellant before assessing punishment, the trial c ourt admitted
A ppellant ’ s stipulation that he had committed the prior offenses alleged in the enhancement paragraphs, received verbal confirmation from A ppellant that he was17 aware of the consequences of the stipulation, and stated on the record that it fou nd 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 sentence s he could receive. We conclude that, because it assessed puni shment, the trial court was not required to read the allegations in the enhancement paragraphs to A ppellant

. 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 c ou rt 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 Charge 4

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). T h e 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.18 In his fourth issue, Appellant complains that the Allen charge , given w ith 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. A pp . — Hou ston [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 cha rge.”); see also T EX
. R. A PP
. 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, A ppellant 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.19 Conclusion We affirm the judgments of the trial court.

Laura Carter Higley Justice Panel consists of Justices Jennings, Higley, and Huddle. Do not publish. T EX
. R. A PP
. P. 47.2(b).