1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-15-00421-CR

____________________

RICHARD MCKINNLEY NIXON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Cause No. 13-18376-CR

MEMORANDUM OPINION

Appellant Richard McKinnley Nixon (Nixon) was indicted by a Jefferson 

County grand jury for possession of a controlled substance (cocaine), a second 

degree felony. See Tex. Health & Safety Code Ann. § 481.115 (West 2010). The 

indictment alleged that on or about May 3, 2012, Nixon “intentionally and 

knowingly possess[ed] a controlled substance listed in Penalty Group 1 of the 

Texas Controlled Substance Act, namely COCAINE, by aggregate weight . . . in an 

amount of at least four (4) grams or more and less than two hundred (200) 
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grams[.]” The indictment further alleged that prior to the commission of the 

primary offense, Nixon “was finally convicted of the felony of Possession of 

Controlled Substance-Third Degree Felony on May 10, 2004. . . .” Nixon entered a 

plea of not guilty, and the cause was tried to a jury in October of 2015. The jury 

found Nixon guilty as charged in the indictment, and assessed punishment at 

confinement in the Texas Department of Criminal Justice for a term of twenty 

years. The trial court entered a Judgment of Conviction by Jury consistent with the 

jury verdict. The trial court then certified that the defendant has the right of appeal. 

Nixon timely filed a written notice of appeal. 

Nixon raises three issues on appeal. In his first two issues on appeal, he 

challenges the admission of certain evidence regarding his prison identification 

card from another offense, arguing that the prison identification card “related to an 

extraneous offense that was irrelevant” and that such evidence was improper under 

evidentiary rules 401, 402, 403, and 404(b). In his third issue, Nixon contends the 

trial court erred in denying his request for a continuance. We affirm the judgment.

ORAL MOTION IN LIMINE

At trial, after a jury was selected but immediately before the seating of the 

jury, the defendant urged a verbal motion in limine to the court as follows:

[Defense Attorney]: Your Honor, we do have a short motion in limine 

we need to present. We have a short motion in limine, your Honor.
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THE COURT: Well, we’ve got a jury coming; and I don’t have a 

written motion. What do you want?

[Defense Attorney]: No. It would be oral, your Honor. I just --

THE COURT: (Addressing the bailiff) Would you tell them to hold 

the jury just for a second in the hall. Don’t let them go away.

THE COURT: What is it, Mr. [Defense Attorney]?

[Defense Attorney]: Your Honor, just there might be mention of prior 

convictions or an ID card that would indicate he is a convicted felon 

’cause it’s a T.D.C.J. ID card. And that’s it, your Honor. I think 

during --

THE COURT: The motion in limine is denied. You have the right to 

object.

[Defense Attorney]: Yes, sir.

THE COURT: And I’ll take it up when that comes up.

EVIDENCE AT TRIAL

Beaumont Police Officer Rosendo Lopez testified that on May 3, 2012, he 

and his partner, Officer Danny Davis, were attempting to serve an arrest warrant on 

Nixon for a parole violation for possession of a controlled substance. The officers 

were informed that Nixon could be found at 4610 Maddox, Apartment No. 4, in 

Jefferson County, Texas. When they arrived at the apartment complex, they found 

Nixon’s vehicle in the parking lot. The officers knocked on the door of the 

apartment and announced themselves as “Beaumont PD[]” and after several 

attempts, a female answered the door. Through the partial opening in the door, 
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Officer Lopez could see the defendant, Richard Nixon, “fleeing to the back of the 

residence.” Nixon ran into the bathroom and the officers ordered Nixon to come 

out. Officer Lopez testified that he could hear water and a toilet flushing while 

Nixon was in the bathroom. After Nixon eventually came out of the bathroom, the 

officers apprehended Nixon, took him into custody, and handcuffed him.

Officer Lopez testified that when escorting Nixon to the front door of the 

apartment, Lopez “observed in plain view a clear plastic baggy on the couch[]” 

that “contained an off-white rock-like substance” that the officer recognized as 

“crack cocaine.” State’s exhibits 2A and 2B were identified as the baggy and 

substance in question. Officer Lopez testified that, based upon his training and 

experience, he formed the opinion that Nixon was in possession of a controlled 

substance. Lopez testified that Officer Davis then escorted Nixon to the patrol 

vehicle, and initially Nixon was only arrested for the parole violation. Lopez 

notified the Narcotics Division and secured the scene, and a female subject was 

also placed under arrest for an outstanding warrant. Officers from the Narcotics 

Division arrived, and Officer Davis administered Miranda warnings to Nixon while 

Nixon was in the patrol car. The Narcotics Division obtained a search warrant.

On cross-examination, Lopez agreed that what Lopez wrote in his report is 

similar to what Officer Davis wrote in Davis’s report, but Lopez agreed that the 

description provided in Davis’s report had details that Lopez did not include in 
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Lopez’s report. Lopez explained that he could not testify about Davis’s version of 

what happened and that “[h]e wrote the report his way. I wrote my report my 

way. . . . He can’t testify to what I observed, what I saw.” Lopez confirmed that he 

saw Nixon through the partially open door, that Nixon was sitting “on the 

couch[,]” and Lopez saw Nixon flee.

Sergeant Cody Courts with the Beaumont Police Department testified that 

on May 3, 2012, he was working as an investigator in the Narcotics Division, when 

he received a call from Officer Lopez, who reported that while serving an arrest 

warrant for a parole violation, Lopez had observed in plain view certain items he 

believed to be narcotics. Courts obtained a search warrant for the residence. 

Officer Courts testified regarding police protocol and procedures, and identified 

various Exhibits. Courts identified Exhibit 1A as the bag in which Courts placed 

item 1B, and 1B as a bag with a rock-like substance that Courts found at the 

apartment when he executed the search warrant, and which his preliminary testing 

at the scene revealed was positive for cocaine. The item inside Exhibit 1A was 

located by Officer Courts inside a Crown Royal bag that was underneath the sink 

in the bathroom of the apartment. Courts identified Exhibit 2A as the container in 

which Lopez placed Exhibit 2B, and 2B as the suspected crack cocaine located on 

the couch in plain view first observed by Officer Lopez. Preliminary tests on 2B 

indicated it was cocaine. Courts identified Exhibit 3A as the package in which 
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Courts placed 3B, which contained a white powder the officers found in a drawer 

in the kitchen during the search.1

The State asked Sergeant Courts what evidence was collected from the 

search of the apartment that indicated to the officer that Nixon resided at that 

apartment:

[Sgt. Courts]: We located a lot of personal items like driver’s licenses 

-- or a driver’s license, an inmate or an offender identification card --

[Defense Attorney]: Your Honor, once again, I’m going to object. 

That goes to your ruling on the motion in limine.

THE COURT: Overruled.

[State’s Attorney]: [] Please continue.

[Sgt. Courts]: An Entergy bill with his name on it for that location, 

things of that nature.

[State’s Attorney]: Sir, I’m going to show you what has been marked 

tentatively for identification purposes as State’s Exhibit No. 4. Would 

you please look at the contents of State’s Exhibit No. 4.

[Sgt. Courts]: (Complies.)

[State’s Attorney]: What does that appear to be, sir?

 

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Prior to trial, defense counsel filed a Motion to Suppress “[a]ll tangible 

items seized by law enforcement” without specifying the articles seized, on the 

basis that the detention was unlawful under the Fourth and Fourteenth 

Amendments, Article I, Section 9 of the Texas Constitution, and Chapters 14 and 

38 of the Texas Code of Criminal Procedure. There is no indication in the record 

that the Motion to Suppress was ever set for a hearing or ruled upon by the trial 

court. 
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[Sgt. Courts]: It appears to be a Texas Department of Criminal Justice 

Offender Identification Card.

[State’s Attorney]: Is that the same one you saw at the residence?

[Sgt. Courts]: Yes, sir.

[State’s Attorney]: How do we know it’s the same one you saw at the 

residence?

[Sgt. Courts]: It’s got the same number on it. It’s got the same 

packaging that I packaged it in. It’s got my handwriting on it.

[State’s Attorney]: Does it also have evidence tape sealing it?

[Sgt. Courts]: Correct. Yes, sir.

[State’s Attorney]: Please put it back in State’s Exhibit No. 4.

[Sgt. Courts]: (Complies.)

[State’s Attorney]: Your Honor, at this time I’d like to introduce 

State’s Exhibit 4 and its contents into evidence.

THE COURT: Mr. [Defense Attorney]?

[Defense Attorney]: Your Honor, we have the same objection as to its

prejudicial value i[t’]s irrelevant as far as any ID, what that ID card is 

for, and it goes to our motion in limine.

THE COURT: Overruled. 4 is admitted.

After the State rested its case, the defendant indicated he did not wish to 

testify but the defense attorney asked the trial court to grant the defendant a “brief 

recess” to obtain the appearance of a witness, as follows:
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[Defense Attorney]: We are asking that the Court grant us a brief 

recess in order to obtain the appearance of Officer Davis, who is a 

material witness, based on our motion to suppress as far as what 

transpired prior to entry into the apartment. It’s our understanding that 

Mr. Davis is available to testify. However, I think he’s in custody of 

his children and he’s not available until 11:00 o’clock in the morning. 

And the State is not going to call Officer Davis. I don’t know if

Officer Davis has been subpoenaed by the State or not. I believe we 

are allowed to rely on their subpoenas. Of course, they were -- one of 

the witnesses we believed they were going to call. That being a 

material witness, we are going to need him to corroborate what his 

report says.

THE COURT: That’s denied[]. The case was set for trial in August, 

plenty of time to get everybody here that y’all wanted to testify.

The defendant did not call any witnesses at trial.

STANDARD OF REVIEW

We review a trial court’s decision to admit evidence under Rules 404(b) and 

403 for an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. 

Crim. App. 2009). “As long as the trial court’s ruling is within the ‘zone of 

reasonable disagreement,’ there is no abuse of discretion, and the trial court’s 

ruling will be upheld.” Id. at 343-44 (quoting Montgomery v. State, 810 S.W.2d 

372, 391 (Tex. Crim. App. 1991) (op. on reh’g)). If the trial court’s decision is 

correct on any theory of law applicable to the case, we will uphold the decision. Id. 

at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982). 

We review the trial court’s denial of a defendant’s motion for continuance 

for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 
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2007); Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006). The trial 

court has discretion to deny a continuance, and reversal is justified only when the 

trial court has abused its discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex. 

Crim. App. 1982). A continuance may be granted after trial has begun when there 

is some unexpected occurrence, which no reasonable diligence could have 

anticipated that so takes the applicant by surprise that a fair trial cannot be had. 

Tex. Code Crim. Proc. Ann. art. 29.13 (West 2006). To obtain a continuance for a 

missing witness, the defendant must show, among other things, that he exercised 

due diligence to secure attendance. Id. art. 29.06(2) (West 2006). A party seeking a 

new trial based on the denial of a motion for continuance for an absent witness 

must file a sworn motion for new trial, stating the testimony that the missing 

witness would have provided. Harrison v. State, 187 S.W.3d 429, 435 (Tex. Crim. 

App. 2005) (citing McCloud v. State, 494 S.W.2d 888, 891 (Tex. Crim. App. 

1973)); Robinson v. State, 454 S.W.2d 747, 748 (Tex. Crim. App. 1970). The 

motion for new trial must include an affidavit of the missing witness or a sworn 

statement from some source that the witness would actually testify to the facts set 

forth in the motion for new trial. Harrison, 187 S.W.3d at 435-36 (citing McCloud, 

494 S.W.2d at 890-91). A party fails to exercise due diligence necessary to support 

a motion for continuance when he did not subpoena his witness, but relied solely 

upon promises that the witness would be present. See Rodriguez v. State, 21 
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S.W.3d 562, 566 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Absent such 

due diligence, a trial court does not abuse its discretion by overruling the party’s 

motion for continuance. See Cooks v. State, 844 S.W.2d 697, 725 (Tex. Crim. App. 

1992) (deciding that trial court’s denial of motion for continuance for a defendant 

to locate a witness was not abuse of discretion when, among other things,

defendant did not file pretrial application for subpoena).

PRISON IDENTIFICATION CARD

In his first two issues, Nixon argues that the prison identification card 

constitutes evidence of an “extraneous act” used to prove a propensity to violate 

the law and that it was inadmissible under Rule 404(b). Nixon also contends that 

the evidence was irrelevant and prejudicial under Rules 401, 402, and 403. The 

State contends the ID card was used to prove an element of the crime charged, that 

is, an affirmative link between Nixon and the drugs, and that the evidence was 

cumulative of other evidence previously admitted without objection.

To preserve error for appellate review, a party’s objection generally must be 

sufficiently specific so as to “‘let the trial judge know what he wants, why he 

thinks himself entitled to it, and do so clearly enough for the judge to understand 

him at a time when the trial court is in a proper position to do something about it.’” 

Malone v. State, 405 S.W.3d 917, 925 (Tex. App.—Beaumont 2013, pet. ref’d) 

(quoting Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009)). It 
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follows, that an objection stating one legal basis may not be used to support a 

different legal theory on appeal. See Zillender v. State, 557 S.W.2d 515, 517 (Tex. 

Crim. App. 1977). Where a complaint on appeal does not comport with an 

objection made at trial, the error is not preserved on that complaint. Goff v. State,

931 S.W.2d 537, 551 (Tex. Crim. App. 1996); Broxton v. State, 909 S.W.2d 912, 

918 (Tex. Crim. App. 1995); Dunn v. State, 819 S.W.2d 510, 524-25 (Tex. Crim. 

App. 1991) (discussing the importance of specific objections under Rule 52, the 

predecessor to Rule 33.1). In order to raise a Rule 404 complaint on appeal, the 

objecting party must have made a Rule 404 objection separate from a Rule 403

objection. See Montgomery, 810 S.W.2d at 389.

In the case at bar, Nixon made an oral motion in limine on the first day of 

trial that was overruled. In the oral motion in limine the defense notified the court 

that there may be “mention of prior convictions or an ID card that would indicate 

he is a convicted felon ’cause it’s a T.D.C.J. ID card[,]” and the trial court 

indicated it would “take it up when that comes up.” When the ID card is then 

mentioned in the testimony, the only objection voiced by the defense is “once 

again, I’m going to object to that question and answer, and that goes to the motion 

-- motion in limine.” And, then again when the ID card is offered into evidence, 

“[y]our Honor, we have the same objection as to its prejudicial value is irrelevant 

as far as any ID, what that ID card is for, and it goes to our motion in limine.” The 
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trial court overruled the objections. The appellant failed to make a Rule 404(b) 

objection. Therefore, he failed to preserve these arguments on appeal. See Tex. R. 

App. P. 33.1 (preservation of error for appeal requires a timely objection made 

with sufficient specificity to inform the trial court of the complaint); see also 

Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012) (A party does not have 

to use “magic words” or recite a specific statute to preserve an issue, “as long as 

the basis of his complaint is evident to the trial court.”); Brazzell v. State, 481 

S.W.2d 130, 131 (Tex. Crim. App. 1972) (“[g]enerally, a motion in limine will not 

preserve error to the admission of inadmissible evidence”).

Nevertheless, even assuming that the objection made by Nixon preserved his 

appellate argument pertaining to Rule 404(b), we conclude that the evidence was 

not inadmissible under Rule 404(b) because the evidence was relevant to 

establishing an affirmative link between Nixon and the drugs, and it was within the 

zone of reasonable disagreement for the trial court to admit the evidence. Rule

404(b) expressly provides that evidence of crimes, wrongs, or other acts is not 

admissible to prove the character of the defendant in order to show he acted in 

conformity therewith. Tex. R. Evid. 404(b)(1). Rule 404(b) codifies the common 

law principle that a defendant should be tried only for the offense for which he is 

charged and not for being a criminal generally. Rogers v. State, 853 S.W.2d 29, 32 

n.3 (Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. 
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Crim. App. 2008) (explaining that the defendant is generally to be tried only for 

the offense charged, not for any other crimes). 

Extraneous offense evidence, however, may be admissible for other 

purposes such as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b)(2). 

The list of exceptions in Rule 404(b) is nonexhaustive. See Prible v. State, 175 

S.W.3d 724, 731 (Tex. Crim. App. 2005) (citing Montgomery, 810 S.W.2d at 388).

“Whether extraneous offense evidence has relevance apart from character 

conformity, as required by Rule 404(b), is a question for the trial court.” Moses v.

State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court’s Rule 404(b) 

ruling admitting evidence is generally within the zone of reasonable disagreement 

“if there is evidence supporting that an extraneous transaction is relevant to a 

material, non-propensity issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. 

App. 2011) (citing Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)).

Texas courts utilize a two-step analysis for determining the admissibility of 

extraneous offenses or uncharged acts. Rogers, 853 S.W.2d at 32-33. Courts

determine first whether the evidence is relevant to a material issue in the case and 

second whether the relevant evidence should be admitted as an exception to Rule 

404(b). Id.
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Rule 403 provides that “[t]he court may exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, 

or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. The Rule 403 

balancing factors include, but are not limited to, the following: (1) the probative 

value of the evidence; (2) the potential to impress the jury in some irrational, yet 

indelible, way; (3) the time needed to develop the evidence; and (4) the 

proponent’s need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. 

Crim. App. 2012) (citing Montgomery, 810 S.W.2d at 389-90); Shuffield v. State,

189 S.W.3d 782, 787 (Tex. Crim. App. 2006). The rules of evidence favor the 

admission of relevant evidence and carry a presumption that relevant evidence is 

more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. 

App. 1996).

A person commits the offense of possession of a controlled substance, if he 

knowingly or intentionally possesses the controlled substance in the prescribed 

amount, by aggregate weight, including adulterants or dilutants. See Tex. Health & 

Safety Code Ann. §§ 481.102(3)(D) (West 2010), 481.115. To prove possession, 

the State had to prove that (1) the accused exercised control, management, or care 

over the substance; and (2) the accused knew the matter possessed was contraband. 

Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). When the defendant 
15

does not have exclusive possession of the place where the contraband is found, 

then independent facts and circumstances must link him to the drugs. Poindexter v. 

State, 153 S.W.3d 402, 405-13 (Tex. Crim. App. 2005) (citing and quoting 

Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)) (concluding that 

evidence was sufficient to link defendant to drugs contained in brown paper bag 

where bag was hidden in appellant’s house and confidential informant had 

disclosed location to police). Regardless of whether the evidence is direct or 

circumstantial, it must establish that the defendant’s connection with the drug was 

more than fortuitous. Evans, 202 S.W.3d at 161. “Mere presence at the location 

where drugs are found is thus insufficient, by itself, to establish actual care, 

custody, or control of those drugs.” Id. at 162. However, presence or proximity, 

when combined with other evidence, either direct or circumstantial, can be 

sufficient to establish that element beyond a reasonable doubt. Id. It is not the 

number of links that is dispositive, but rather the logical force of all of the 

evidence, direct and circumstantial. Id. Texas courts have set forth a non-exclusive 

list of possible links that may be sufficient, either singly or in combination, to 

establish a person’s possession of contraband. Id. at 162 n.12. These links include, 

among other items, whether the defendant owned or had the right to possess the 

place where the drugs were found. Id. 
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The evidence in question was relevant to establishing an affirmative link 

between Nixon, the apartment, and the drugs: it was discovered at the scene and 

inside the apartment, and at the time it was admitted into the evidence the jury was 

already aware that Nixon had previously been convicted of another offense. 

Officer Lopez had previously testified that he and Officer Davis were attempting to 

serve an arrest warrant on Nixon for a parole violation for possession of a 

controlled substance. Nixon did not object to that line of questioning. Additionally, 

the prison identification card was relevant to affirmatively linking Nixon to 

possession of the cocaine. Accordingly, we conclude the trial court did not abuse 

its discretion in admitting the evidence in this case. It was within the zone of 

reasonable disagreement for the trial court to find that the evidence was relevant, 

that it was not being offered in violation of Rule 404(b), and that the probative 

value of the evidence was not substantially outweighed by the danger of unfair 

prejudice. Therefore, we overrule issues one and two.

MOTION FOR CONTINUANCE

In his third and final issue, Nixon contends that the trial court committed 

reversible error by denying his oral request for a continuance to allow Nixon to 

secure the attendance of Officer Davis as a witness at trial. Nixon argues that there 

was a significant difference between Davis’s report and Lopez’s report, and that 

Davis was a necessary witness so Nixon could establish that the entry into the 
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apartment was illegal. Nixon argues he could not have known Lopez’s testimony, 

and that expeditiousness of the trial should have given way to justice to allow the 

defendant to fairly present his case under principles of due process. In support of 

his argument, Nixon cites to several intermediate courts of appeal decisions, 

including Deaton v. State, 948 S.W.2d 371 (Tex. App.—Beaumont 1997, no pet.), 

wherein this Court stated that although generally motions for continuance should 

be in writing, the denial of the continuance amounted to a denial of due process 

and there was no negative impact on the orderly administration of justice by giving 

the defendant a continuance until the following morning to call a witness. 948 

S.W.2d at 374-77; see also Petrick v. State, 832 S.W.2d 767, 770-71 (Tex. App.—

Houston [1st Dist.] 1992, pet. ref’d); O’Rarden v. State, 777 S.W.2d 455, 459 (Tex.

App.—Dallas 1989, pet. ref’d). 

We decline to follow Deaton because subsequent controlling authority from 

the Court of Criminal Appeals has confirmed that there is no “due process 

exception” to the “written-and-sworn requirement.” Blackshear v. State, 385 

S.W.3d 589, 591 (Tex. Crim. App. 2012) (citing Anderson v. State, 302 S.W.3d 

276, 280 (Tex. Crim. App. 2009)). Accordingly, Nixon’s oral motion for 

continuance preserved nothing for our review. Id. Nixon filed no written motion 

and no supporting sworn affidavit. We further note that there was no evidence that 

he exercised due diligence in having a subpoena issued for the attendance of the 
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witness. We cannot say that the trial court abused its discretion in denying the oral 

motion for continuance. See Priester v. State, 478 S.W.3d 826, 832 (Tex. App.—El 

Paso 2015, no pet.). We overrule his third issue.

Having overruled all of Nixon’s issues on appeal, we affirm the trial court’s 

judgment.

AFFIRMED.

___________________________

LEANNE JOHNSON

 Justice 

Submitted on July 14, 2016

Opinion Delivered August 24, 2016

Do Not Publish

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