1

NO. __________

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

___________________________________________________________________

KRISTOPHER DONALD MIXON

Petitioner

v.

THE STATE OF TEXAS

 

Petition in Cause No. 23,963-C from the

251st Judicial District Court of Randall County, Texas and

Case No. 07-15-00094-CR in the Court of Appeals for the Seventh

Supreme Judicial District of Texas

___________________________________________________________________

PETITION FOR DISCRETIONARY REVIEW

JAMES B. JOHNSTON 

EASTERWOOD, BOYD & SIMMONS, PC

P. O. Box 273

Hereford, Texas 79045

(806) 364-6801

(806) 364-2526 – telefax

Email: bryan@ebs-law.net

State Bar No: 10838200

ATTORNEY FOR PETITIONER,

KRISTOPHER DONALD MIXON
2

NAME OF ALL PARTIES TO THE

TRIAL COURT’S FINAL JUDGMENT

Below is a complete list of the identity of the judge and all parties to the trial 

court’s judgment, and all trial and appellate counsel:

1. Hon. Ana Estevez, Trial Court Judge

251st Judicial District Court – Randall County

2309 Russell Long Blvd.

Canyon, Texas 79015

2. Petitioner, KRISTOPHER DONALD MIXON

7407 Dreyfuss 

Amarillo, Texas 79121

3. Petitioner’s Trial Counsel

Lynda Smith

Attorney at Law

3611 Soncy Road, Suite 4C

Amarillo, Texas 79119

4. Petitioner’s Appellate Counsel

James B. Johnston

EASTERWOOD, BOYD & SIMMONS, PC

P.O. Box 273

Hereford, Texas 79045

5. Trial Counsel for the State of Texas

Charles D. Blount

Randall County District Attorney’s Office

2309 Russell Long Blvd., Ste. 120

Canyon, Texas 79015
3

6. Appellate Counsel for the State of Texas

Warren L. Clark

Randall County District Attorney’s Office

2309 Russell Long Blvd., Ste. 120

Canyon, Texas 79015
4

TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL..............................................2

TABLE OF CONTENTS...........................................................................................4

INDEX OF AUTHORITIES......................................................................................5

STATEMENT REGARDING ORAL ARGUMENT................................................7

STATEMENT OF THE CASE..................................................................................8

STATEMENT OF PROCEDURAL HISTORY........................................................9

GROUNDS FOR REVIEW.....................................................................................10

1. When reviewing the issue of forfeiture of the 

constitutional due process right to an uncoerced 

jury verdict, the court of appeals must first 

categorize the alleged error as either absolute, 

waivaible by affirmative action, or waivable by 

inaction. To summarily overrule the complaint 

because of the absence of a specific objection 

constitutes error in the court of appeals analysis.

2. The due process right to an uncoerced jury verdict 

falls under the category of absolute Constitutional 

rights.

3. Any language in a supplemental Allen jury charge 

which implies the obligation of the defendant to 

provide proof beyond a reasonable doubt is coercive.

ARGUMENT ...........................................................................................................10

PRAYER FOR RELIEF...........................................................................................15

CERTIFICATE OF COMPLIANCE.......................................................................16

CERTIFICATE OF SERVICE ................................................................................16

APPENDIX..............................................................................................................18
5

INDEX OF AUTHORITIES

CASES

Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013).....................................12

Daye v. Attorney Gen. of New York, 696 F.2d 186 (2nd Cir. 1982)..................12, 13

Garza v. State, 435 S.W.3d 258 (Tex. Crim. App. 2014) ........................................11

Green v. United States, 309 F.2d 852 (5th Cir. Fla. 1962) ........................................5

Smalls v. Batista, 191 F.3d 272 (2d Cir. N.Y. 1999)...............................................14

Smalls v. Batista, 6 F. Supp.2d 211 (S.D.N.Y. 1988)..............................................12

United States v. Burgos, 55 F.3d 933 (4th Cir. S.C. 1995)......................................14

STATUTES

TEX. R. APP. P. 33.1(a) ..........................................................................................11

TEX. CONST. ART. V, SECTION 10 ....................................................................12

UNITED STATES CONSTITUTION, Amendment 6 ............................................12

UNITED STATES CONSTITUTION, Amendment 14 ..........................................12
6

NO. ___________

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

___________________________________________________________________

KRISTOPHER DONALD MIXON

Petitioner

v.

THE STATE OF TEXAS

 

Petition in Cause No. 23,963-C from the

251st Judicial District Court of Randall County, Texas and

Case No. 07-15-00094-CR in the Court of Appeals for the Seventh

Supreme Judicial District of Texas

___________________________________________________________________

 

 

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF

CRIMINAL APPEALS OF TEXAS:

KRISTOPHER DONALD MIXON petitions the Court to review the judgment 

affirming his conviction for the second degree felony offense of possession of a 
7

controlled substance (methamphetamine), and punishment assessed at eight (8) years

confinement in the Institutional Division of the Texas Department of Criminal Justice,

and the judgment of the Seventh Court of Appeals affirming that conviction.

STATEMENT REGARDING ORAL ARGUMENT

This is a published opinion and may be used as precedent in future appellate 

decisions. Oral argument would be helpful to the Court for the purpose of discussing 

whether the Allen charge as used in this State continues to be viable and if so, whether 

a more bright line delineation of its proper use is necessary. There exists confusion 

among the appellate courts of this state regarding the extent to which trial courts may 

vary the language in an Allen charge from that contained in the traditional Allen jury 

charge as set out by the United States Supreme Court. If the Allen charge is to be of 

continuous validity in this State, a more bright line instruction of what language may 

be included and what language may be excluded in the Allen charge is needed. This 

would help eliminate much of the confusion in the application of the law to Allen 

charges, would eliminate the subjective application of the charge by appellate courts, 

and would give more effective direction to trial counsel for defendants who must 

respond at trial to the Allen charge.
8

STATEMENT OF THE CASE

Petitioner was convicted by a jury of possession of a controlled substance 

(methamphetamine). The Seventh Court of Appeals in its opinion in this case 

determined that (1) Petitioner has waived his complaint at the trial court level 

concerning the error in submitting the Allen charge [Court of Appeals Opinion, p. 9]; 

and (2) the trial court did not err in submitting the Allen charge at issue because it was 

not coercive. [Court of Appeals Opinion, p. 12].

The Seventh Court of Appeals summarily overruled Petitioner’s Constitutional 

challenge concerning the Allen charge, claiming that Petitioner failed to specifically 

lodge his Constitutional challenge to the charge at trial [Court of Appeals Opinion, p. 

9]. The court of appeals erred in this analysis, because the complaint on appeal falls 

under the category of absolute rights (which cannot be forfeited by inaction alone) or at

the very least rights that must be waived by a waiver which is affirmatively, plainly, 

freely and intelligently made. The right of due process through an uncoerced jury 

verdict is not among the waivable constitutional rights.

The Seventh Court of Appeals also ruled that there was no error in the trial 

court’s submission of the Allen charge, so Petitioner’s complaint that the error was 

harmful was not addressed. The error of the court of Appeals analysis of Petitioner’s 

first and second appellate complaintsis that the specific variance by the trial court from 
9

that Allen charge language which Texas appellate courts have deemed acceptable 

resulted in improper coercion, contrary to the finding of the Seventh Court of Appeals.

The Allen charge in this case implied that the Petitioner had an obligation to offer 

proof beyond a reasonable doubt that he was not guilty of the charge in the indictment.

STATEMENT OF PROCEDURAL HISTORY

Petitioner pleaded not guilty [RR Vol. 2, p. 112] to the offense of possession of 

a controlled substance (methamphetamine) as charged in the indictment [CR p. 8]. The 

case was tried to a jury, which found Petitioner guilty as charged in the indictment [RR 

Vol. 3, p. 148]. Petitioner elected to have the trial judge assess his punishment, and the 

trial court sentenced Petitioner in open court on December 16, 2014 to a term of eight 

(8) years in the Texas Department of Criminal Justice – Institutional Division [RR Vol. 

4, p. 70]. Sentence was imposed in open court on December 16, 2014 [RR Vol. 4, p. 

70], and the court’s Nunc Pro Tunc Judgment of Conviction by Jury was signed on 

January 13, 2015 [CR pp. 114-116]. The trial court certified Petitioner’s right to appeal 

the judgment [CR p. 100]. Petitioner filed a Motion For New Trial and Motion in 

Arrest of Judgment [CR 104-106; amended at CR 119-121]. In his amended motion for 

new trial, Petitioner raised the issue that the Allen charge given by the trial court was 

coercive. The amended motion for new trial was overruled by operation of law.

Petitioner filed a timely notice of appeal [CR p. 136].
10

The Seventh Court of Appeals affirmed Petitioner’s conviction on November 10, 

2015. Mixon v. State, 2015 Tex. App. LEXIS 11645 (Tex. App. Amarillo November 

10, 2015). Petitioner has filed a motion for rehearing concurrently with this petition, 

along with a motion to extend the time to file the motion for rehearing. Petitioner 

requested an extension of the time to file a petition for discretionary to August 5, 2015, 

which request was granted.

GROUNDS FOR REVIEW - RESTATED

When reviewing the issue of forfeiture of the constitutional 

due process right to an uncoerced jury verdict, the court of 

appeals must first categorize the alleged error as either 

absolute, waivaible by affirmative action, or waivable by 

inaction. To summarily overrule the complaint because of 

the absence of a specific objection constitutes error in the 

court of appeals analysis.

The due process right to an uncoerced jury verdict falls 

under the category of absolute Constitutional rights.

Any language in a supplemental Allen jury charge which 

implies the obligation of the defendant to provide proof 

beyond a reasonable doubt is coercive.

ARGUMENT

Forfeiture of right to complain due to lack of trial objection

In its decision, the Seventh Court of Appeals reviewed Petitioner’s third ground 

for appeal and stated:
11

“When in response to the jury’s note, the trial court proposed the supplemental 

charge, appellant objected as follows: ― ‘Judge, I just need to object to it. I will 

object. I would propose that they just be asked if they have any possibility of 

reaching a verdict.’ The State responds, and we agree, that appellant’s very 

general objection to the supplemental charge when it was proposed failed to 

preserve any challenge to the constitutional concerns he now raises on appeal. 

Only by reading the objection most liberally would the objection preserve any 

error on appeal. At any rate, there having been no mention whatsoever of any 

constitutional challenge to the supplemental charge, we conclude that appellant 

failed to preserve any constitutional issues concerning the supplemental charge 

and summarily overrule that point of error. See TEX. R. APP. P. 33.1(a).”

[Court of Appeals Opinion p. 9, note 2]

The rights of a defendant fall into three categories. The first category of rights 

are those that are widely considered so fundamental to the proper functioning of the 

adjudicatory process that they cannot be forfeited by inaction alone. These are 

considered absolute rights. The second category of rights is comprised of rights that are 

not forfeitable—they cannot be surrendered by mere inaction, but are waivable if the 

waiver is affirmatively, plainly, freely, and intelligently made. The trial judge has an 

independent duty to implement these rights absent any request unless there is an 

effective express waiver. Finally, the third category of rights are forfeitable and must 

be requested by the litigant. Many rights of the criminal defendant, including some 

constitutional rights, are in this category and can be forfeited by inaction.” Garza v. 

State, 435 S.W.3d 258, 259 (Tex. Crim. App. 2014).
12

The right of due process through an uncoerced jury verdict, being grounded in 

the Sixth and Fourteenth Amendments to the United States Constitution and in 

ARTICLE V, SECTION 10 of The Texas Constitution, is not among the waivable 

constitutional rights. The trial court’s submission of the Allen charge in this case 

implicates a constitutional right because it revolves around the issue of coercion. 

Smalls v. Bautista, 6 F. Supp.2d 211, 218 (S.D.N.Y. 1988). A defendant has a due 

process right to an uncoerced jury verdict. Id., at 218. A claim that the record is devoid 

of an objection is not subject to procedural default. Davison v. State, 405 S.W.3d 682, 

684 (Tex. Crim. App. 2013).

Petitioner did lodge an objection to the Allen charge. Petitioner afforded the trial 

court a second opportunity to correct the charge error by specifically alleging the error 

in his amended motion for new trial.

Even supposing that Petitioner’s claim did not, on its face, alert the state court to 

any federal claim, Petitioner satisfies the last test of the Daye analysis. Petitioner’s 

contention regarding the Allen charge was sufficient to alert the state court that a 

federal due process claim was being asserted because the fact pattern alleged is within 

the mainstream of constitutional analysis. “The gravamen of a claim of denial of a fair 

trial due to judicial bias does not depend on the source of the bias or the manner of its 

manifestation. If judicial bias, or the appearance of it, existed, due process was denied. 
13

We do not believe it reasonable to assume that state judges presented with a claim of 

manifested judicial bias would fail to recognize the implication of due process rights 

simply because half a century of due process cases dealt with the mere risk of bias or 

with actual bias manifested in other ways.” Daye v. Attorney Gen. of New York, 696 

F.2d 186, 197 (2nd Cir. 1982) (en banc).

This Court need not even reach the Daye question of whether the issue was 

cognizable pursuant to Petitioner’s trial objection and motion for new trial if Petitioner 

is correct that the due process right at issue here is an absolute right and not subject to 

forfeiture.

Coercive nature of the Allen charge in this case

In relevant part, the trial court’s Allen charge in this case stated:

Although the verdict must be based upon proof beyond a reasonable doubt, and 

although the verdict must be the individual verdict of each juror, and not a mere 

acquiescence in the conclusion of other jurors, each juror should show a proper 

regard to the opinion of the other jurors.

[CR p. 97]

There is only one party in the criminal trial to whom the “proof beyond a 

reasonable doubt” burden applies: the State. The trial court’s Allen charge in this case 

highlighted that burden, then provided some “although” exceptions, and finally 

instructed the jurors to “show a proper regard for the opinion of the other jurors.” 
14

Since the Petitioner had no obligation to prove anything beyond a reasonable doubt, 

requesting that the jury show proper regard for the opinion of other jurors could have 

been directed no other persons than those who felt the State had not met its burden and 

were therefore hanging up the jury deliberations. The fact that the trial court did not 

explicitly single out those “not guilty” jurors is of little legal significance. Although 

most courts upholding the use of the Allen charge which does not single out individual 

jurors, “an evaluation of a suspect Allen charge must be conducted from the 

perspective of a juror in the minority, because ‘they always know their minority status, 

and if fearfully inclined, may presumably suspect a disgruntled judge can find them 

out.’” United States v. Burgos, 55 F.3d 933, 940 (4th Cir. S.C. 1995). The danger is 

clear, as stated by the New York Second Circuit: “Here, the juror in the minority was 

not made aware of the possibility that, if he or she was not convinced by the views of 

the majority, he or she should hold on to his or her own conscientiously held beliefs. 

The absence of that option might lead minority jurors to believe that unless they are 

able to convince the majority, they should abandon their own conscientiously held

position.” Smalls v. Batista, 191 F.3d 272, 281 (2d Cir. N.Y. 1999). In that case, the 

court held that the charge was rendered coercive not so much for what it contained but 

for what it failed to contain. The same is true in this case, with the added error that the 

astute juror could figure out to whom the “beyond a reasonable doubt” language was 
15

directed. In sum, the Allen charge given in this case “gave the jury false notions of the 

validity and force of majority opinion; it tended to limit full and free discussion in the 

jury room; it prejudiced the right of an accused to a hung jury and a mistrial by tending 

to stifle the dissenting voices of minority jurors.” Green v. United States, 309 F.2d 

852, 856 (5th Cir. Fla. 1962).

For the foregoing reasons, Petitioner requests this Court to find that (1) 

Petitioner has not waived or forfeited his right to complain of the Allen charge 

submitted by the trial court; and (2) the Seventh Court of Appeals erroneously held that 

the Allen charge in this case was not coercive. Therefore, the judgment of the Seventh 

Court of Appeals should be reversed and Petitioner should be granted a new trial.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court 

grant this petition, and upon reviewing the judgment entered by the Seventh Court of 

Appeals, reverse the judgment of the Court of Appeals with instructions to that court to 

remand the case to the trial court for a new trial. In the alternative, in the event this 

Court determines that the court of appeals erroneously applied the standard regarding 

review of the alleged waiver or forfeiture by Petitioner of his Constitutional rights in 

this case, the Court of Criminal Appeals should reverse the judgment of the Seventh 

Court of Appeals and remand the case for a proper harm analysis.
16

Respectfully submitted, 

Easterwood, Boyd & Simmons, PC

623 N. Main Street, P.O. Box 273

Hereford, TX 79045

Tel: (806) 364-6801

Fax: (806) 364-2526

By: /s/ James B. Johnston

James B. Johnston

State Bar No. 10838200

Email: bryan@ebs-law.net

Attorney for Kristopher Donald Mixon

CERTIFICATE OF COMPLIANCE

This is to certify that the number of words in this document according to the 

word count of the program used to prepare the document is 3009.

/s/ James B. Johnston 

James B. Johnston

Certificate of Service

I hereby certify that a true copy of the foregoing instrument was provided to all 

counsel of record in this matter on the 10th day of December, 2015, in accordance with 

the Texas Rules of Appellate Procedure. 

State Prosecuting Attorney

P. O. Box 12405

Austin, Texas 78711
17

Warren L. Clark

Randall County District Attorney’s Office

2309 Russell Long Blvd., Ste. 120

Canyon, Texas 79015

/s/ James B. Johnston

James B. Johnston
18

APPENDIX

Opinion of the Seventh Court of Appeals
In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-15-00094-CR 

KRISTOPHER DONALD MIXON, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 251st District Court 

Randall County, Texas 

Trial Court No. 23,963-C, Honorable Ana Estevez, Presiding 

 

November 10, 2015 

 

OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

Appellant, Kristopher Donald Mixon, appeals the trial court’s judgment by which 

he was convicted of possession of a controlled substance, methamphetamine, in an 

amount greater than four grams but less than 200 grams.

1

 The trial court sentenced 

him to eight years’ imprisonment. On appeal, he brings four points of error, three of 

which focus on the trial court’s supplemental charge to the jury and the fourth of which 

challenges the sufficiency of the evidence. We will affirm.

 

1

See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010).
2

Factual and Procedural History

On November 4, 2012, Amarillo Police Department officers responded to an early 

morning 911 hang-up call from 7002 Imperial Trail in Amarillo, Texas. Officer Jarrod 

Robertson responded first to the scene of the hang-up call. He was met by a female 

named Belinda Treadway, appellant’s girlfriend, who began to voice her suspicions to 

Robertson about an intruder being in the shed. Two other people in addition to 

Treadway and appellant were present that morning; the two people—appellant’s 

daughter and her husband—had apparently just moved into the residence as well. 

Corporal Jerry Neufeld arrived a short time later to assist Robertson.

Both appellant and Treadway consented to a search of the home, including the 

shed. The search began with the shed in the backyard, described by Robertson as a 

detached garage that appeared to be used more as a workshop. As Robertson, 

Neufeld, and Treadway made their way to the shed, appellant retrieved the key and 

went outside to unlock the door to the shed.

After confirming that no one was located in the shed, the officers, appellant, and 

Treadway returned to the residence where Treadway retrieved and brought to

Robertson an opened white box containing needles, spoons, a clear plastic bag

containing a crystalline substance that looked like methamphetamine, and other items 

that Robertson recognized as drug paraphernalia. To rule out an alternative purpose for 

having the hypodermic needles in the home, Robertson asked whether appellant was a 

diabetic to which appellant responded, ―No.‖ When Robertson asked appellant what the 

contents of the bag were, appellant responded, ―Probably meth.‖
3

A full-scale search of the residence then ensued, beginning in the northeast 

bedroom where the officers found several items of drug paraphernalia, specifically both 

broken and intact pipes. A search of the southeast bedroom yielded several more items 

of drug paraphernalia, including more pipes generally used for smoking 

methamphetamine. Robertson and Neufeld returned to the shed to continue their 

search, this time for narcotics. Officers found additional paraphernalia in the shed and 

also located a small green change purse on a shelf. Inside that purse, the officers 

discovered a plastic bag containing what they believed—and later confirmed—to be 

methamphetamine, the 6.85 grams possession of which is at issue in this case.

Appellant was convicted of possession of the 6.85 grams of methamphetamine 

and sentenced to eight years’ imprisonment. On appeal from that conviction, he 

presents three points of error contending that the trial court reversibly erred by giving 

the jury a supplemental charge when the jury indicated that it was having difficulty 

reaching a decision. He also challenges the sufficiency of the evidence to support his 

conviction.

Sufficiency of the Evidence

Appellant challenges the sufficiency of the evidence in the final point of error; 

however, because this point of error would, if sustained, afford the greatest relief to 

appellant, we will address the sufficiency of the evidence first. See Chaney v. State, 

314 S.W.3d 561, 565, 566 n.6 (Tex. App.—Amarillo 2010, pet. ref’d) (citing TEX. R. APP.

P. 43.3 and Bradleys’ Elec. Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 

1999) (per curiam)).
4

Standard of Review

In assessing the sufficiency of the evidence, we review all the evidence in the 

light most favorable to the verdict to determine whether any rational trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. Jackson 

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). ―[O]nly that evidence which is sufficient in 

character, weight, and amount to justify a factfinder in concluding that every element of 

the offense has been proven beyond a reasonable doubt is adequate to support a 

conviction.‖ Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful 

that ―[t]here is no higher burden of proof in any trial, criminal or civil, and there is no 

higher standard of appellate review than the standard mandated by Jackson.‖ Id. 

When reviewing all of the evidence under the Jackson standard of review, the ultimate 

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07 

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d 

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single 

evidentiary standard of review). ―[T]he reviewing court is required to defer to the jury’s 

credibility and weight determinations because the jury is the sole judge of the witnesses’ 

credibility and the weight to be given their testimony.‖ Id. at 899.

Applicable Law

A conviction for possession of a controlled substance is supported only when the

evidence establishes that the defendant ―knowingly or intentionally possesse[d]‖ the 

alleged controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). ―A 
5

person acts knowingly, or with knowledge, with respect to the nature of his conduct or to 

circumstances surrounding his conduct when he is aware of the nature of his conduct or 

that the circumstances exist.‖ TEX. PENAL CODE ANN. § 6.03(b) (West 2011). The mere 

presence of the accused at the place where contraband is located does not make him a 

party to joint possession, even if he knows of the contraband’s existence. Jenkins v. 

State, 76 S.W.3d 709, 712 (Tex. App.—Corpus Christi 2002, pet. ref’d). Proof of 

possession requires evidence that the accused exercised ―actual care, custody, control, 

or management‖ over the substance. See TEX. HEALTH & SAFETY CODE ANN. § 

481.002(38) (West Supp. 2014). Thus, the State must prove the accused (1) ―exercised 

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

―possessed‖ was contraband. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. 

App. 2006); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988) (en banc).

When the accused is not in exclusive control of the place where the contraband 

is found, the State must establish care, custody, control, or management by linking the 

accused to the substance through additional facts and circumstances. See Poindexter 

v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Deshong v. State, 625 

S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981)). Be it direct or circumstantial, the 

State’s evidence of links must establish, ―to the requisite level of confidence, that the 

accused’s connection with the drug was more than just fortuitous.‖ See id. at 405–06 

(quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc)); Park 

v. State, 8 S.W.3d 351, 352–53 (Tex. App.—Amarillo 1999, no pet.). In other words, the 

evidence must affirmatively connect the accused to the contraband in such a manner 

and to such a degree that a reasonable inference may arise that the accused knew of 
6

the contraband’s existence and that he exercised control over it. See Travis v. State, 

638 S.W.2d 502, 503 (Tex. Crim. App. [Panel Op.] 1982).

The several factors by which an accused may, under the unique circumstances 

of each case, be sufficiently ―linked‖ to the contraband, include the following 

considerations: (1) the defendant’s presence when a search is conducted; (2) whether 

the contraband is in plain view; (3) the defendant’s proximity to and the accessibility of 

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

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

connecting himself to the contraband; (6) whether the defendant made incriminating 

statements connecting himself to the contraband; (7) whether the defendant made 

furtive gestures; (8) whether there was an odor of contraband; (9) whether other 

contraband or drug paraphernalia were present; (10) whether the defendant owned or 

had the right to possess the place where the contraband was found; (11) whether the 

place where the contraband was found was enclosed; (12) whether the defendant was 

found with a large amount of cash; (13) whether the conduct of the defendant indicated 

a consciousness of guilt, including whether the accused attempted to flee; and (14) 

whether occupants of the premises gave conflicting statements about relevant matters. 

See Evans, 202 S.W.3d at 162 n.12; Jenkins, 76 S.W.3d at 712–13; see also Triplett v. 

State, 292 S.W.3d 205, 209 (Tex. App.—Amarillo 2009, pet. ref’d) (listing numerous 

factors to be considered in analysis). These factors, however, are simply that—factors 

which may circumstantially establish the sufficiency of evidence offered to prove a 

knowing ―possession.‖ See Evans, 202 S.W.3d at 162 n.12 (cautioning courts that 
7

these factors ―are not a litmus test‖). It is not the number of links that is dispositive;

rather, it is the logical force of all the evidence. See id. at 162.

Analysis

In evaluating the evidence for factors linking appellant to the methamphetamine 

found in the shed, we note that the methamphetamine at issue was found in a purse in 

a locked outdoor shed, the key to which appellant apparently controlled. Scales and 

several other items of paraphernalia were present throughout the house and the shed, 

though appellant maintains none of those items were directly linked to him. Specifically, 

several pipes were found in the southeast bedroom that had been converted by 

appellant into a video surveillance equipment room, used to monitor activities on and 

around the property.

Appellant was considered the ―primary resident‖ of the house although 

appellant’s sister held title to the house. From the interaction with police at the scene, 

we see that appellant was familiar with and admitting using methamphetamine at 

various points in the past. In fact, when Treadway brought the opened box of drug 

paraphernalia and a plastic bag with an unidentified substance in it, appellant readily 

concluded that the bag probably contained methamphetamine.

Through these additional facts and circumstances, the State presented evidence 

from which the jury could have rationally found that appellant (1) ―exercised control, 

management, or care over the substance‖ and (2) knew that the substance ―possessed‖ 

was contraband. See id. at 161.
8

Appellant highlights a number of other ―factors‖ which did not link him to the 

methamphetamine found in the shed. He points out that there is no evidence that 

appellant was under the influence of methamphetamine when he was arrested, that 

appellant made no incriminating statements when arrested, that appellant made no 

attempt to flee and no furtive gestures, that officers found no large amounts of cash, 

and that there were no other indications in appellant’s behavior of a consciousness of 

guilt. However, the ―absence of various affirmative links does not constitute evidence of 

innocence to be weighed against the affirmative links present.‖ Jones v. State, 466 

S.W.3d 252, 260 (Tex. App.—Houston [1st Dist.] 2015, pet. filed) (quoting James v. 

State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)).

Appellant also emphasizes that it was Treadway who had actual knowledge of 

the first amount of methamphetamine as evidenced by the fact that she retrieved it and 

brought it to Robertson. Nonetheless, that Treadway may have also known enough 

about or been sufficiently linked to methamphetamine is not at issue in this case. ―The 

mere fact that a person other than the accused might have joint possession of the 

premises does not require the State to prove that the defendant had sole possession of 

the contraband, only that there are affirmative links between the defendant and the 

drugs such that he, too, knew of the drugs and constructively possessed them.‖

Poindexter, 153 S.W.3d at 412; see Cole v. State, 194 S.W.3d 538, 548 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d) (―The State need not prove exclusive possession of 

the contraband for conviction.‖).

Having found the evidence was sufficient, such that the jury could have rationally 

concluded that appellant knowingly or intentionally possessed the methamphetamine 
9

found in the shed, and remaining unpersuaded by the evidence he cites as militating 

against guilt, we overrule his point of error.

Supplemental Charge to the Jury

In his first three points of error, appellant takes issue with the trial court’s 

supplemental charge to the jury. First, he contends that the trial court erred by issuing 

said charge to the jury. Secondly, he contends that such error caused harm to 

appellant. Finally, he contends the trial court’s supplemental jury charge deprived him 

of a fair and impartial trial as guaranteed by the Sixth Amendment to the United States 

Constitution and by Article V, Section 10 of the Texas Constitution.2

Applicable Law and Standard of Review

When the jury sent out a note that it ―[could] not reach decision on this case,‖ the 

trial court proposed a supplemental charge reminding 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. Appellant 

lodged a very general objection to this supplemental charge and proposed an

alternative charge in the form of a question to the jury regarding the possibility of 

reaching a verdict. The trial court overruled appellant’s objection and read the 

 

2 When in response to the jury’s note, the trial court proposed the supplemental charge, appellant 

objected as follows: ―Judge, I just need to object to it. I will object. I would propose that they just be 

asked if they have any possibility of reaching a verdict.‖ The State responds, and we agree, that 

appellant’s very general objection to the supplemental charge when it was proposed failed to preserve 

any challenge to the constitutional concerns he now raises on appeal. Only by reading the objection most 

liberally would the objection preserve any error on appeal. At any rate, there having been no mention 

whatsoever of any constitutional challenge to the supplemental charge, we conclude that appellant failed 

to preserve any constitutional issues concerning the supplemental charge and summarily overrule that 

point of error. See TEX. R. APP. P. 33.1(a).
10

supplemental charge to the jury. Having received its supplemental charge, the jury 

retired from the courtroom at 2:09 p.m. At 3:26, the trial court noted that the jury 

indicated that it had reached a verdict.

A supplemental charge, such as the one given in this case, to a jury that had 

declared itself deadlocked is widely known as an Allen charge. See Barnett v. State, 

189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006); see also Ex parte Menchaca, 854 

S.W.2d 128, 130 & n.3 (Tex. Crim. App. 1993) (en banc) (noting one alternative name 

for Allen charge is a ―dynamite‖ charge). An Allen charge takes its name from Allen v. 

United States, 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528 (1896), and refers to a 

supplemental charge sometimes given to a jury that declares itself deadlocked. 

Generally speaking, it is designed to remind 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. See id.; Barnett, 189 S.W.3d at

277 n.13. The use of an Allen charge in this context has long been sanctioned by both 

the United States Supreme Court and the Texas Court of Criminal Appeals. See Allen, 

164 U.S. at 501–02; Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996) (en 

banc), overruled on other grounds by Easley v. State, 424 S.W.3d 535, 538 & n.23 

(Tex. Crim. App. 2014); Arrevalo v. State, 489 S.W.2d 569, 571–72 (Tex. Crim. App 

1973).

Nevertheless, trial courts are cautioned that they must design and administer this 

supplemental charge in a non-coercive manner. See Howard, 941 S.W.2d at 123–24. 

Generally speaking, ―a supplemental charge which suggests that all jurors reevaluate 

their opinions in the face of disparate viewpoints cannot be said to be coercive on its 
11

face.‖ Id. at 123. The primary inquiry to determine the propriety of an Allen charge is its 

coercive effect on juror deliberation, ―in its context and under all circumstances.‖ 

Lowenfield v. Phelps, 484 U.S. 231, 237, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988) 

(quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059, 13 L. Ed. 2d 957 

(1965) (per curiam)).

Analysis

When, after approximately three and one-half hours of deliberation, the jury 

indicated to the trial court that it was unable to reach a decision, the trial court issued 

the following supplemental instruction over appellant’s general objection:

You are instructed that in a case of this nature it is not unusual for 

your deliberations to take a considerable amount of time.

You are further instructed that in a large portion of the cases 

absolute certainty cannot be expected. Although the verdict must be 

based upon proof beyond a reasonable doubt, and although the verdict 

must be the individual verdict of each juror, and not a mere acquiescence 

in the conclusion of other jurors, each juror should show a proper regard 

to the opinion of the other jurors. You should listen, with a disposition to 

be convinced, to the arguments of the other jurors. You should consider 

whether or not you are basing your opinion on speculation or surmise and 

not on the evidence in this case.

If this jury finds itself unable to arrive at a unanimous verdict, it will 

be necessary for the Court to declare a mistrial and discharge the jury. 

The indictment will still be pending, and it is reasonable to assume that the 

case will be tried again before another jury at some future time. Any such 

future jury will be impaneled in the same way this jury has been impaneled 

and will likely hear the same evidence which has been presented to this 

jury. The questions to be determined by that jury will be the same 

questions confronting you, and there is no reason to expect that the next 

jury will find these questions any easier to decide than you have found 

them.

With this additional instruction, you are requested to continue your 

deliberations in an effort to arrive at a verdict that is acceptable to all 
12

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

conscience of any individual juror.

The trial court then requested that the jury retire and continue its deliberations. It did so 

and returned its guilty verdict one hour and seventeen minutes later.

As is apparent from the face of the Allen charge given, the trial court did not 

direct the supplemental charge toward the minority jurors. See Howard, 941 S.W.2d at 

123–24. The instructions contained in the Allen charge utilized here are consistent with 

similar instructions used in Allen charges used throughout this state and have been held 

to be noncoercive. See West v. State, 121 S.W.3d 95, 108–09 (Tex. App.—Fort Worth 

2003, pet. ref’d) (concluding that nearly identical Allen charge was not coercive and 

providing citation to several state and federal cases dealing with similarly worded Allen

charges). That said, the Allen charge was not coercive on its face, nor was it delivered 

with any additional comment that could be read to be coercive or in any way convey the 

trial court’s view of the case. See Howard, 941 S.W.2d at 123–24 (observing, in that 

case, that supplemental charge directing ―all jurors‖ to reevaluate their opinions was not 

coercive on its face and noting further that the trial court ―did not shade the instruction 

with coercive nuance‖).

Instead, the charge given here appears to be designed to ―avert an impasse‖ 

following three and one-half hours of deliberation. See id. at 124. Indeed, the jury 

continued to deliberate for an additional one hour and seventeen minutes after having 

been so charged, suggesting that the jury did continue deliberations rather than come to 

a decision following a simple acquiescence by the minority jurors. We conclude that the 

trial court did not err in giving the Allen charge to the jury in these circumstances.
13

We overrule appellant’s first point of error contending that the Allen charge from 

the trial court was error. Having so concluded, we need not address whether the 

alleged error was harmful and overrule appellant’s second point of error as well.

Conclusion

Having overruled appellant’s points of error, we affirm the trial court’s judgment of 

conviction. See TEX. R. APP. P. 43.2(a).

Mackey K. Hancock

 Justice

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Case Information

Location Court Of Criminal Appeals

Date Filed 12/10/2015 11:59:07 PM

Case Number

Case Description

Assigned to Judge

Attorney James Johnston

Firm Name Easterwood, Boyd & Simmons, P.C.

Filed By James Johnston

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Petition for Discretionary Review

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Reference Number 14-100448

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Rejection Information

Rejection

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12/11/2015

09:41:35

Pursuant to our recent telephone conversation I am rejecting this filing so that a

correction can be made to the petition. You have ten days to file your corrected
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Documents

Lead Document PDR 12.10.15.pdf [Original]