In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00413-CR
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PAUL ANDREW THORNHILL, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 258th District Court
San Jacinto County, Texas
Trial Cause No. 12,437
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MEMORANDUM OPINION
A jury convicted appellant Paul Andrew Thornhill of possession of a
controlled substance with intent to deliver, and the trial court assessed punishment
at fifteen years of confinement. On appeal, Thornhill challenges the legal sufficiency
of the evidence to support his conviction and the denial of his motion for mistrial.
We affirm the trial court’s judgment.
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BACKGROUND
A grand jury charged Thornhill with possession of a controlled substance,
namely methamphetamine, with intent to deliver, a first-degree felony. See Tex.
Health & Safety Code Ann. § 481.112(a), (d). The indictment included a second
count charging Thornhill with possession of a prohibited weapon, as well as an
enhancement paragraph alleging one prior felony conviction for possession of a
controlled substance, subjecting Thornhill to a minimum punishment of fifteen years
of confinement. See Tex. Penal Code Ann. § 12.42(c)(1). The trial court conducted
a jury trial, and prior to trial, the trial court approved Thornhill’s motion in limine,
limiting the evidence to only include the methamphetamines that Thornhill was
charged with and excluding extraneous offense evidence.
William Wheeler testified that on March 27, 2018, he was driving a white
Ford truck, and when he got out at his friend’s house, an unknown person took off
in his truck. Savannah Echhade, Wheeler’s sister, testified that Wheeler asked her to
help locate the stolen truck. Echhade explained that when she found the truck, she
called the police and followed the woman who was driving the truck, which was
later recovered.
Detective David Hernandez of the San Jacinto County Sheriff’s Office
testified that he mainly investigates narcotics offenses. Hernandez testified that on
March 27, 2018, he was working as a patrol deputy when he received a call regarding
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a stolen vehicle, and when he located the vehicle parked at a house, there was no one
in the vehicle. Hernandez testified that while conducting an immediate search of the
area, he encountered Thornhill, who was exiting the house and had a very large knife
on his side. Based on the circumstances, Hernandez explained that he took a felony
approach to the situation and drew his pistol for his safety. After Hernandez detained
and questioned Thornhill, he learned that Whitney Holloway was the driver of the
stolen truck, and Thornhill gave Hernandez consent to search the house for
Holloway.
Hernandez testified that upon entering the house, he observed a crystal-like
substance on two spoons and some scales sitting on a coffee table, and Hernandez
explained that the items were consistent with the packaging and selling of narcotics
which led him to suspect the presence of methamphetamine. According to
Hernandez, after he cleared the house, he asked Thornhill about the illegal substance
on the scales, and Thornhill stated that “he didn’t know what I was talking about.”
Hernandez testified that based on the items he observed on the coffee table, he asked
Thornhill for consent to search the entire residence for narcotics, but Thornhill
denied consent because he claimed it was not his house. According to Hernandez,
Thornhill told him that the house belonged to his deceased brother. Hernandez
explained that he believed he had probable cause, so he secured the residence and
obtained a search warrant.
3
Hernandez testified that during his search of the house, he found a small
container with multiple baggies consistent with packaging and selling narcotics and
a “fairly large quantity[]” of methamphetamine. Hernandez explained that he found
fifteen grams of methamphetamine in the bedroom and a smaller amount wrapped
in cellophane. According to Hernandez, fifteen grams of methamphetamine is not a
personal usage amount, and the smaller amount wrapped in cellophane is the amount
typically sold on the street to users. Hernandez testified that he placed Thornhill
under arrest and found over eight hundred dollars in cash on his person.
Deputy Bryan Pfluger of the San Jacinto County Sheriff’s Office testified that
on March 27, 2018, he received a call requesting assistance at the house Hernandez
was investigating after following the stolen truck, and Pfluger found Holloway
hiding under the carport and detained her for the unauthorized use of a motor vehicle.
Pfluger testified that he did not enter the house until after the search warrant was
presented. An undercover officer with the San Jacinto County Sheriff’s Office
testified that on March 27, 2018, he assisted Hernandez in drafting the search warrant
and searching the house. The undercover officer explained that he found
methamphetamine in the bedroom. According to the undercover officer, he had
previously encountered Thornhill at the house in October 2017. Patrick Tynan, a
forensic analyst with the Houston Forensic Science Center, testified that he
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performed testing on the four baggies containing evidence recovered from the house,
and the tests indicated the presence of methamphetamine in all four items.
At the close of the State’s evidence, defense counsel moved for a directed
verdict, arguing that the State failed to prove a causal connection. The trial court
denied defense counsel’s motion for directed verdict. The jury found Thornhill guilty
of possession of a controlled substance with intent to deliver methamphetamine. The
trial court conducted a sentencing hearing, during which Thornhill pleaded “true” to
the enhancement paragraph. After Thornhill entered a plea agreement regarding
Count Two in the indictment, the trial court assessed Thornhill’s punishment at
fifteen years of confinement on Count One and Count Two and ordered the sentences
to run concurrently.
ANALYSIS
In issue one, Thornhill contends the evidence is insufficient to support his
conviction for possession of a controlled substance with intent to deliver because
there were not sufficient links between him and the methamphetamine found by the
police. According to Thornhill, the State failed to show that he possessed the
methamphetamine found in the bedroom of the house because he did not own the
house. Thornhill argues that his mere presence at the house is insufficient to establish
that he knowingly possessed the methamphetamine. The State contends that there
are multiple affirmative links connecting Thornhill with the methamphetamine.
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In evaluating the legal sufficiency of the evidence, we review all the evidence
in the light most favorable to the verdict to determine whether any rational factfinder
could have found the essential elements of the offense beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). The jury is the ultimate authority on the credibility of the
witnesses and the weight to be given to their testimony. Penagraph v. State, 623
S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). An appellate court may not
sit as a thirteenth juror and substitute its judgment for that of the factfinder by
reevaluating the weight and the credibility of the evidence. Dewberry v. State, 4
S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. A
reviewing court must give full deference to the jury’s responsibility to fairly resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains
conflicting inferences, we must presume the jury resolved such facts in favor of the
verdict and defer to that resolution. See Brooks, 323 S.W.3d at 899 n.13; Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, we “determine
whether the necessary inferences are reasonable based upon the combined and
cumulative force of all evidence when viewed in the light most favorable to the
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verdict.” Hooper, 214 S.W.3d at 16-17. We treat direct and circumstantial evidence
equally. Clayton, 235 S.W.3d at 778.
A person commits an offense if the person knowingly possesses
methamphetamine with intent to deliver. Tex. Health & Safety Code Ann. §§
481.102(6), 1 481.112(a), (d). “‘Possession’ means actual care, custody, control, or
management.” Id. § 481.002(38).2 “To prove unlawful possession of a controlled
substance, the State must prove that: (1) the accused exercised control, management,
or care over the substance; and (2) the accused knew the matter possessed was
contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005),
abrogated on other grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex.
Crim. App. 2015).
Regardless of whether the evidence is direct or circumstantial, it must
establish that the defendant’s connection with the drug was more than
fortuitous. This is the so-called “affirmative links” rule which protects
the innocent bystander–a relative, friend, or even stranger to the actual
possessor–from conviction merely because of his fortuitous proximity
to someone else’s drugs. Mere presence at the location where drugs are
found is thus, insufficient, by itself, to establish actual care, custody, or
control of those drugs. However, presence or proximity, when
combined with other evidence, either direct or circumstantial (e.g.,
“links”), may well be sufficient to establish that element beyond a
reasonable doubt.
1
We cite to the current version of section 481.102 of the Texas Health and
Safety Code because the 2021 amendment does not affect the outcome of this appeal.
2
We cite to the current version of section 481.002 of the Texas Health and
Safety Code because the 2021 amendment does not affect the outcome of this appeal.
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Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (footnotes omitted).
Because the “‘affirmative links’ rule is not an independent test of legal
sufficiency[,]” the Court of Criminal Appeals uses the term “‘link’ so that it is clear
that evidence of drug possession is judged by the same standard as all other
evidence.” Id. at 161 n.9.
Reviewing courts have developed several factors showing a possible
link between the accused and contraband, including: (1) the accused’s
presence when the search was conducted, (2) whether the contraband
was in plain view, (3) the accused’s proximity to and the accessibility
of the contraband, (4) whether the accused was under the influence of
narcotics when arrested, (5) whether the accused possessed other
contraband or narcotics when arrested, (6) whether the accused made
incriminating statements when arrested, (7) whether the accused
attempted to flee, (8) whether the accused made furtive gestures, (9)
whether there was an odor of contraband, (10) whether other
contraband or drug paraphernalia were present, (11) whether the
accused owned or had the right to possess the place where the
contraband was found, (12) whether the contraband was found in an
enclosed place, (13) whether the accused was found with a large
amount of cash, and (14) whether the conduct of the accused indicated
a consciousness of guilt.
Roberts v. State, 321 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet.
ref’d).
Thornhill contends the evidence is insufficient to show that he possessed the
methamphetamine found inside the bedroom of the house where he was arrested
because (1) the house belonged to his deceased brother, (2) the house was unable to
be locked because the doors were off the hinges, (3) he was arrested in the front yard,
(4) he had no illegal substances on his person, (5) there was no indication that he
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lived at the house, (6) paraphernalia found in plain view was not fingerprinted, (7)
there was no evidence he visited the bedroom where the methamphetamine was
found, and (8) there was no evidence regarding Holloway’s connection to the house
or that he was connected to Holloway. The record shows that Thornhill was not in
exclusive possession of the bedroom where the controlled substance was found.
Thus, additional facts and circumstances must link Thornhill to the contraband in
such a way that the jury could conclude that he had knowledge of the contraband
and exercised control over it. See Roberson v. State, 80 S.W.3d 730, 735 (Tex.
App.—Houston [1st Dist.] 2002, pet. ref’d). Although the contraband was not in
Thornhill’s exclusive possession, the jury could infer that Thornhill intentionally or
knowingly possessed the contraband if there are sufficient independent facts and
circumstances justifying such an inference. See Tate v. State, 500 S.W.3d 410, 413-
14 (Tex. Crim. App. 2016); see also Tex. Penal Code Ann. § 6.03(a), (b). The State
is not required to present evidence on each factor to show a link between Thornhill
and the methamphetamine, and the absence of a factor is not evidence of innocence
that must be weighed against the factors that are present. See Espino-Cruz v. State,
586 S.W.3d 538, 544 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d).
The jury could have rationally concluded beyond a reasonable doubt that
Thornhill possessed the methamphetamine found in the bedroom since he was
exiting the house when Hernandez first arrived at the scene; he gave Hernandez
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consent to search the house, instead of saying that he could not grant consent since
it was not his house, but belonged to his deceased brother; his presence at the house
when the search was conducted; his sole presence in the house where contraband,
including two spoons and some scales covered in a crystal-like substance was found
in plain view on a coffee table; his proximity to and the accessibility of the
contraband; the fact that contraband, which included multiple baggies consistent
with packaging and selling narcotics and a fairly large quantity of
methamphetamine, was present and found in a small container; and his possession
of over eight hundred dollars in cash on his person. See Roberts, 321 S.W.3d at 549.
Additionally, the jury heard testimony that the total weight of the methamphetamine
seized during the search of the house was an amount indicative of possession with
intent to deliver.
In summary, the logical force of all the circumstantial evidence in this case,
combined with reasonable inferences, is sufficient to show that Thornhill had actual
care, custody, control, and management of the methamphetamine found in the
bedroom. See Evans, 202 S.W.3d at 166. Viewing all the evidence in the light most
favorable to the State, the jury could reasonably conclude, beyond a reasonable
doubt, that Thornhill committed the offense of possession of methamphetamine with
intent to deliver. See Jackson, 443 U.S. at 319; see also Hooper, 214 S.W.3d at 13.
We overrule issue one.
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In issue two, Thornhill argues that the trial court abused its discretion by
denying his motion for mistrial after the State allegedly violated the trial court’s
limine order which prohibited evidence of his extraneous offenses. We review a trial
court’s denial of a motion for mistrial for an abuse of discretion, and we will reverse
only in extreme circumstances in which the prejudice was incurable. Hawkins v.
State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); see also Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009) (concluding that mistrial is appropriate
only in extreme circumstances “for a narrow class of highly prejudicial and incurable
errors[]”). We must uphold a trial court’s ruling on a motion for mistrial if it was
within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292
(Tex. Crim. App. 2010).
Thornhill complains about two instances in which he alleges that the State
violated his motion in limine. Based on our review of the first instance, we conclude
that Thornhill failed to preserve any error. To preserve an issue for appellate review,
the defendant must make a timely request, objection, or motion stating specific
grounds for the ruling he desires the trial judge to make and obtain a ruling on the
objection. Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.
App. 2002). The objection must be made at the earliest opportunity, and “[a] motion
for mistrial is timely only if it is made as soon as the grounds for it become apparent.”
Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). To preserve error for
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appellate review, a defendant’s complaint on appeal must also comport with the
objection raised at trial. See Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim.
App. 1997).
The record shows that defense counsel approached the bench after Hernandez
entered the courtroom with a “handful of evidence” that defense counsel described
as “pills and a bunch of the other stuff that is being kept out of the extraneous
offenses.” While defense counsel expressed concern that the jury may have seen the
extraneous offense evidence, defense counsel never made an objection or moved for
a mistrial based on Hernandez’s actions. Since Thornhill failed to move for a
mistrial, he has not preserved his argument for our review. See Tex. R. App. P. 33.1;
Griggs, 213 S.W.3d at 927.
The second instance about which Thornhill complains occurred during
Hernandez’s testimony. When defense counsel asked Hernandez if he did anything
to confirm that Thornhill’s brother owned the house and had passed away,
Hernandez testified that “I did the other – other things to confirm that there had been
other offenses at that location.” The trial court sustained defense counsel’s objection
to Hernandez’s response as being non-responsive. The trial court advised the parties
that Hernandez had violated the defense’s motion in limine and instructed the State
to make sure its witnesses did not testify about any of Thornhill’s extraneous
offenses. Defense counsel asked the trial court to instruct the jury to disregard
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Hernandez’s non-responsive answer and moved for a mistrial. The trial court
instructed the jury to disregard Hernandez’s answer and denied the motion for
mistrial.
Generally, a prompt instruction to disregard will cure a witness’s inadvertent
reference to an extraneous offense. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim.
App. 2000). An instruction to disregard can cure any improper impression unless the
evidence is so clearly calculated to inflame the minds of the jury or is of such
damning character as to suggest it would be impossible to remove the harmful
impression from the mind of the jury. Kemp v. State, 846 S.W.2d 289, 308 (Tex.
Crim. App. 1992). “On appeal, we generally presume the jury follows the trial
court’s instruction in the manner presented.” Thrift v. State, 176 S.W.3d 221, 224
(Tex. Crim. App. 2005). The presumption is rebuttable, but the appellant must rebut
the presumption by pointing to evidence that the jury failed to follow the trial court’s
instruction. Id.; Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
Thornhill has not pointed to any evidence showing that the jury failed to
follow the trial court’s instruction. Nor was Hernandez’s reference that he did other
things to confirm that there had been other offenses at the house so calculated to
inflame the minds of a jury or of such a nature as to suggest the impossibility of
withdrawing the impression produced. See Kemp, 846 S.W.2d at 308. Under the
circumstances here, the trial court could have reasonably concluded that its
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instruction to disregard was sufficient to cure any error caused by Hernandez’s non-
responsive answer. See Ovalle, 13 S.W.3d at 783; Ladd v. State, 3 S.W.3d 547, 567
(Tex. Crim. App. 1999); Tennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App.
1990) (holding that prompt limiting instruction given after a witness referred to the
defendant’s prior prison time cured any error); Barney v. State, 698 S.W.2d 114, 125
(Tex. Crim. App. 1985) (holding that instruction to disregard to a reference to a
defendant’s status as “ex-con” cured any error). Therefore, we conclude that the trial
court’s denial of the motion for mistrial was within the zone of reasonable
disagreement. See Coble, 330 S.W.3d at 292; Ocon, 284 S.W.3d at 884; Griggs, 213
S.W.3d at 927. We overrule issue two. Having overruled each of Thornhill’s issues,
we affirm the trial court’s judgment.
AFFIRMED.
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W. SCOTT GOLEMON
Chief Justice
Submitted on June 4, 2021
Opinion Delivered July 28, 2021
Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
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