Aaron Charles Burton v. State ( 2015 )

ACCEPTED
01-14-00513-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/11/2015 4:50:55 PM
CHRISTOPHER PRINE
Nos. 01-14-00513-CR and 01-14-00514-CR CLERK
In the
Court of Appeals FILED IN
For the 1st COURT OF APPEALS
HOUSTON, TEXAS
First District of Texas
2/11/2015 4:50:55 PM
At Houston
CHRISTOPHER A. PRINE
 Clerk
Nos. 1330898 & 1330899
In the 351st District Court
Of Harris County, Texas

AARON CHARLES BURTON
Appellant
v.
THE STATE OF TEXAS
Appellee

State’s Appellate Brief

DEVON ANDERSON
District Attorney
Harris County, Texas
SARAH ROBERTS
Assistant District Attorney
Harris County, Texas
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net
1201 Franklin, Suite 600
Houston, Texas 77002
Tel: (713) 755-5826
FAX: (713) 755-5809
Counsel for the Appellee
Oral Argument Not Requested
Statement Regarding Oral Argument
The appellant requested oral argument, though he gave no particular
reason why. The State believes the briefs in this case adequately apprise this
Court of the issues and the law, and any marginal benefit from oral argument
does not justify the considerable amount of time that preparation for oral
argument requires of the parties and the Court. Therefore, the State does not
request oral argument.
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Identification of the Parties
Counsel for the State:
Devon Anderson
 District Attorney of Harris County
Sarah Roberts
— Assistant District Attorney at trial
Clinton A. Morgan
 Assistant District Attorney on appeal
Appellant:
Aaron Charles Burton
Counsel for the Appellant:
Hattie Shannon
— Counsel at trial
Tony Aninao
— Counsel on appeal
Trial Judge:
Leslie Brock Yates
 Presiding judge
ii
Table of Contents
Page
Statement Regarding Oral Argument .......................................................... i
Identification of the Parties ........................................................................ ii
Table of Contents .......................................................................................... iii
Index of Authorities ..................................................................................... iv
Statement of the Case ................................................................................... 1
Statement of Facts ......................................................................................... 1
Reply to Point of Error One
The evidence is sufficient to show that the appellant — the sole occupant of
a vehicle — knowingly possessed the drugs inside the vehicle. .......................... 2
Reply to Point Two
Factual-sufficiency review has been subsumed within legal-sufficiency
review, thus this point presents nothing to review. ................................................... 5
Reply to Point Three
The trial court’s failure to arraign the defendant prior to the beginning of
the punishment phase was harmless. .............................................................................. 6
Reply to Point Four
The Allen charge was not coercive. ................................................................................... 7
Conclusion .................................................................................................... 10
Certificate of Compliance and Service ..................................................... 11
iii
Index of Authorities
Cases
Allen v. United States
164 U.S. 492 (1896) ................................................................................................................. 8
Barnett v. State
189 S.W.3d 272 (Tex. Crim. App. 2006) ..................................................................... 8, 9
Evans v. State
202 S.W.3d 158 (Tex. Crim. App. 2006) ..................................................................... 3, 4
Hervey v. State
131 S.W.3d 561 (Tex. App.—
Waco 2004, no pet.) ................................................................................................................. 7
Hurtado v. State
881 S.W.2d 738 (Tex. App.—
Houston [1st Dist.] 1994, pet. ref’d)................................................................................. 4
Jackson v. State
105 S.W.3d 321 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d) ............................................................................. 6
Jones v. State
___ S.W.3d ___, 01-13-00984-CR, 2015 WL 162216 (Tex. App.—
Houston [1st Dist.] Jan. 13, 2015, no. pet. h.) ............................................................... 5
Linton v. State
15 S.W.3d 615 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d) ............................................................................. 6
Ly v. State
273 S.W.3d 778 (Tex. App.—
Houston [14th Dist.] 2008, pet. ref’d) ............................................................................. 4
Poindexter v. State
153 S.W.3d 402 (Tex. Crim. App. 2005) .......................................................................... 2
Taylor v. State
106 S.W.3d 827 (Tex. App.—
Dallas 2003, no pet.) ............................................................................................................... 5
iv
Statement of the Case
The appellant was indicted for evading arrest with a motor vehicle and
possession of a controlled substance. (1 CR 8; 2 CR 8). 1 Both indictments
alleged two prior felony convictions, with one having been committed after
the other became final. (1 CR 8; 2 CR 8). The appellant pleaded not guilty to
both charges. (3 RR 3-4). A jury found him guilty as charged. (1 CR 87-88; 2 CR
84, 88). The appellant pleaded true to all the enhancement allegations and the
trial court assessed his punishment in both cases at thirty years’ confinement,
with the sentences to run concurrently. (1 CR 88, 2 CR 88). The appellant filed
a timely notice of appeal for both cases. (1 CR 91; 2 CR 91). The records do not
contain trial court certifications of the appellant’s right of appeal.
Statement of Facts
Harris County deputy sheriff Pedro Gutierrez could not see the license
plate on the appellant’s car so he conducted a traffic stop. (3 RR 26-27).
Gutierrez identified the appellant through his driver license. (29-30). As
Gutierrez was walking back to his car to run a warrant check on the appellant,
1 For ease of citation, the State will refer to the clerk’s records in these as though they were
sequentially-numbered volumes. Thus, the record for 01-14-00513-CR (the evading case)
will be 1 CR, and the record for 01-14-00514-CR (the possession case) will be 2 CR. Also,
the State notes that the clerk failed to paginate the record for the evading case. For 1 CR, the
State will use the PDF page numbers.
1
he shone his flashlight into the backseat of the appellant’s car and saw what he
believed to be a large bag of marihuana sitting in plain view. (3 RR 34-35).
Gutierrez turned around to re-approach the appellant about this matter, at
which point the appellant drove away. (3 RR 38).
Gutierrez flagged down two other deputy sheriffs who happened on the
scene, and the three of them followed the appellant on a mile-long chase until
the appellant came to a dead end on Sleepytime Lane, abandoned his car, and
ran into the woods. (3 RR 43-45). The deputies pursued the appellant into the
woods, but he got away. (3 RR 55). When the deputies inventoried the
appellant’s car prior to having it towed, they found in the center console a
bottle containing 3.3 grams of PCP. (3 RR 58-60, 137-38).
Reply to Point of Error One
The evidence is sufficient to show that the appellant — the sole occupant
of a vehicle — knowingly possessed the drugs inside the vehicle.
In his first point, the appellant asserts that the evidence is insufficient to
prove that he possessed the PCP found in the car. To support a conviction for
possession of a controlled substance, the evidence must show knowing
possession. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).
The State must prove that the accused (1) exercised actual care, custody,
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control, or management over the substance, and (2) knew that the substance
was contraband. Ibid.
The appellant bases his argument on the links doctrine, and an analysis
of the specific links that the Court of Criminal Appeals approved of in Evans v.
State, 202 S.W.3d 158 (Tex. Crim. App. 2006). The links doctrine holds that the
mere presence of the accused at the location where drugs are found is
insufficient by itself to establish actual care, custody, or control (i.e.
possession) of those drugs. Evans, 202 S.W.3d, at 162. Thus, when police found
Evans sitting next to a coffee table that was covered in drugs, and he claimed
that the drugs belonged to someone else who lived in the house, the State had
to produce evidence to show that Evans possessed the drugs. See id. at 161-62.
The links doctrine is meant to protect innocent bystanders from being
convicted of drug possession for merely being near other people’s drugs. See
ibid.
In Evans, the Court of Criminal Appeals gave its approval to a non-
exhaustive list of some fourteen links that might show that a defendant
possessed drugs, and then noted that the list was “not a litmus test”:
(1) the defendant’s presence when a search is conducted; (2)
whether the contraband was in plain view; (3) the defendant’s
proximity to and the accessibility of the narcotic; (4) whether the
defendant was under the influence of narcotics when arrested; (5)
whether the defendant possessed other contraband or narcotics
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when arrested; (6) whether the defendant made incriminating
statements when arrested; (7) whether the defendant attempted
to flee; (8) whether the defendant made furtive gestures; (9)
whether there was an odor of contraband; (10) whether other
contraband or drug paraphernalia were present; (11) whether the
defendant owned or had the right to possess the place where the
drugs were found; (12) whether the place where the drugs were
found was enclosed; (13) whether the defendant was found with a
large amount of cash; and (14) whether the conduct of the
defendant indicated a consciousness of guilt.
Id. at 162 n. 12. The State believes several of these factors are applicable (1, 3,
5, 7, 10, 12, 14), but, as the Evans court observed, it is “not the number of links
that is dispositive, but rather the logical force of all the evidence, direct and
circumstantial.” Id. at 162.
The appellant was the sole occupant of the vehicle. See Hurtado v. State,
881 S.W.2d 738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (status
as sole occupant of vehicle indicative of knowing possession). While he was
not present at the time the search was conducted, he was the last person in
the car before police searched it. The drugs were located near the appellant in
an area that was easily accessible to him. See Ly v. State, 273 S.W.3d 778, 782
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (presence of drugs in center
console produced inference that driver possessed them). The appellant had a
bag of marihuana in the back seat, and the fact that he started driving away
when Gutierrez shone his flashlight into the backseat, and then threw the
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marihuana out of the window during the chase (3 RR 45) indicates that the
appellant knowingly possessed the marihuana. Indeed, the appellant’s flight,
both on car and then on foot, is the strongest evidence that the appellant knew
he possessed the PCP. See Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—
Dallas 2003, no pet.) (flight is strong evidence of guilt in circumstantial
possession case). The combined logical force of these facts is sufficient to
support the jury’s verdict. Accordingly, this Court should reject the appellant’s
first point of error.
Reply to Point Two
Factual-sufficiency review has been subsumed within legal-sufficiency
review, thus this point presents nothing to review.
In his second point, the appellant claims that the evidence is “factually
insufficient” to support his conviction. (Appellant’s Brief at 22-30). This point
is based on outdated caselaw, and this Court, in accord with binding caselaw
from the Court of Criminal Appeals, no longer conducts factual-sufficiency
review as a standalone analysis. See Jones v. State, ___ S.W.3d ___, 01-13-00984-
CR, 2015 WL 162216, at *5 (Tex. App.—Houston [1st Dist.] Jan. 13, 2015, no.
pet. h.).
5
Reply to Point Three
The trial court’s failure to arraign the defendant prior to the beginning
of the punishment phase was harmless.
At the beginning of the punishment phase, the State and the appellant
stipulated that the appellant had 23 prior convictions: 18 misdemeanors and
5 felonies. (5 RR 3; State’s Ex. 10). Judgments for these convictions were
admitted into evidence as part of the stipulation. (See State’s Exs. 10A-10V). In
addition, the appellant also stipulated to several adjudicated offenses,
including possession of cocaine and PCP at the time of his arrest. (State’s Ex.
11). The trial court found the enhancement paragraphs true. (6 RR 3).
In his third point of error, the appellant complains that he was not
arraigned at the beginning of the punishment phase. (Appellant’s Brief at 30-
36). It is true that there was no formal arraignment in this case, and that the
appellant never requested one. However, despite the appellant’s repeated
citations to outdated caselaw, it is well-settled that the failure to arraign a
defendant prior to the punishment phase is an error subject to the harmless-
error analysis of Rule 44.2(b) and will merit reversal only if the error had a
substantial impact on the trial. See Linton v. State, 15 S.W.3d 615, 620 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d); Jackson v. State, 105 S.W.3d 321,
330 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Indeed, at least one
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appellate court has held that the failure to object to a failure to arraign the
defendant constitutes waiver of the matter. Hervey v. State, 131 S.W.3d 561,
565 (Tex. App.—Waco 2004, no pet.).
Whether the matter was waived, it is obvious that he was not harmed by
the failure to read the enhancement paragraphs and take his plea. The
appellant knew that the State did not waive its enhancement allegations. (See
5 RR 6 (defense counsel arguing to trial court and accepting that minimum
sentence was 25 years, which is only the case in cases with two enhancement
allegations)). Also, the appellant’s stipulation was, in effect, a plea of “true” to
the enhancements, as two of the prior convictions to which he stipulated were
the enhancement allegations. (Compare CR 8 to State’s Exs. 10B, 10D). The
appellant has alleged no harm in his brief. Because the appellant was not
harmed by the trial court’s failure to arraign him, this Court should reject his
third point.
Reply to Point Four
The Allen charge was not coercive.
The presentation of evidence in this case lasted for three-and-a-half
hours. (2 CR 97). The jury deliberated for an hour and fifteen minutes that
afternoon, and the next day it deliberated for another hour, at which point it
7
sent out a note stating that it had reached a verdict on the evading-arrest
charge, but was deadlocked 10-2 on the possession charge. (CR 86, 97-98). At
that point, the trial court brought out the jury and read them an Allen charge,
instructing them that if they failed to reach a verdict the case would probably
be retried on the same evidence to a different jury and “there is no reason to
hope the next jury will find these questions any easier to decide than you have
found them.” (CR 85, 98). The instruction concluded by telling the jury “to
continue deliberations in an effort to arrive at a verdict that is acceptable to all
members of the jury, if you can do so without doing violence to your
conscience.” (CR 85). After another half-hour of deliberations, the jury reached
its verdict. (CR 98).
In his fourth point of error, the appellant claims that the trial court erred
by coercing the jury. (Appellant’s Brief at 36-45). The appellant raised no
objection relating to this matter at trial. (See 6 RR 3-4).
An Allen charge is a permissible way for a trial court to encourage the
jury to continue their deliberations and attempt to reach a verdict. See Barnett
v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006) (citing Allen v. United
States, 164 U.S. 492, 501 (1896)). A trial court can fall into error if it engages in
coercive tactics in addition to giving an Allen charge, but the record does not
reveal anything of the sort here; moreover, if the trial court had engaged in
8
coercive tactics, the appellant’s failure to properly raise an objection in the
trial court leaves nothing for review. See Barnett, 189 S.W.3d at 278
(defendant preserved error by requesting mistrial after trial court told two
holdout jurors that it had a “problem” with them).
The appellant does not point to any actual error in the language of trial
court’s instruction, nor does he complain about any action by the trial court.
His complaint seems to be that that “the trial court essentially communicated
its opinion of the case by it [Allen] charge to the jury and the two ‘hold outs’
which properly translated means ‘…Why on earth are you taking so long to
find this defendant guily? DELIBERATE SOME MORE!’” (Appellant’s Brief at
44) (emphasis in original). The State believes the appellant has mistranslated
the trial court’s instruction. Nothing in the instruction asked the jury to reach
a particular verdict, and nothing in the record indicates that the trial court
behaved in such a way as to communicate a request for a particular verdict.
The trial court merely instructed the jury in a manner designed to create a
verdict rather than a mistrial. This was permissible. Accordingly, this Court
should reject the appellant’s fourth point.
9
Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
Texas Bar No. 24071454
10
Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting function, the
portion of this brief for which Rule of Appellate Procedure 9.4(i)(1) requires a
word count contains 1,939 words.
I also certify that I have requested that efile.txcourts.gov electronically
serve a copy of this brief to:
Tony Aninao
taninao@hotmail.com
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
Texas Bar No. 24071454
Date: February 11, 2015
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