WILLINGHAM v. STATE (2025)

OPINION

Appellant Samuel Alan Willingham appeals his conviction for possession of a controlled substance. See Tex. Health & Safety Code § 481.115(d). In a single issue, he argues that he was harmed by the trial court's erroneous inclusion in the jury charge of a “joint-possession” instruction. The State concedes that the instruction was error. Finding no harm on this record, however, we overrule appellant's issue and affirm.

Background

Galveston Police Department Officer Zachary Williams initiated a traffic stop shortly after 3:00 a.m. on a vehicle driven by appellant. Linda Zavala was in the passenger seat. A second officer, Officer Gaus, arrived at the scene for backup.

While running a warrants check, Officer Williams asked appellant if he could search the car. Appellant refused consent.

Officer Gaus stood next to the passenger side window. Officer Williams asked Officer Gaus if he could see anything inside the vehicle. Officer Gaus responded that he saw “a bong” through the window.

The officers searched the car. Officer Williams found a baggie with insignia commonly found on narcotics packaging and containing powdery residue “in the [driver's side] door” and another package of powder or granules “in the center console area on the driver's side of the vehicle.” The package from the center console contained eleven grams of methamphetamine. Officer Williams also found a bong, empty plastic baggies, a glass pipe with burned residue (in the glove compartment), and a digital scale. Body-cam video of the search was introduced and played to the jury.

The State charged appellant with possession with intent to deliver a controlled substance listed in Penalty Group 1, namely methamphetamine. See Tex. Health & Safety Code §§ 481.102(6), 481.112(a). Appellant pleaded not guilty, and the case was tried to a jury, which received a charge at the conclusion of the guilt-innocence phase that provided in relevant part:

Our law provides that a person commits an offense if the person knowingly possesses with intent to deliver a controlled substance, and the amount of the controlled substance is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.

Methamphetamine is a controlled substance.

Two or more people can possess the same controlled substance at the same time.

If the evidence shows only that the defendant was at a place where the controlled substance was being possessed, that evidence alone is not enough to convict him.

If the evidence shows only that the defendant knew that someone else was in possession of the controlled substance, that evidence alone is not enough to convict him.

(Emphasis added.) The italicized sentence is known as a “joint-possession” instruction. Appellant objected to its inclusion, which the trial court overruled.

The jury found appellant guilty of the lesser-included offense of possession of a controlled substance listed in Penalty Group 1. See Tex. Health & Safety Code § 481.115(d). The trial court sentenced appellant to six years’ confinement in the Texas Department of Criminal Justice—Institutions Division.

Appellant timely appealed.

Analysis

Appellant seeks reversal of his conviction and a new trial, arguing that he was harmed by the erroneous inclusion of the joint-possession instruction in the jury charge.

Analyzing complaints of jury charge error usually involves two steps. First, we determine if the charge is erroneous. Here, the State concedes error in this first step, and we agree. See Beltran de la Torre v. State, 583 S.W.3d 613, 619-21 (Tex. Crim. App. 2019) (holding that joint-possession instruction impermissibly commented on the weight of the evidence).¹

Accordingly, we proceed to the second step, which is determining whether appellant suffered harm as a result of the charge error. See Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013); Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). There are two potential standards for determining harm resulting from jury charge error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). If, as here, a defendant timely objects, the record need only show “some harm” to obtain relief. Id. Harm resulting from objected-to error is assessed “in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id. Neither party bears the burden to show harm, Marshall v. State, 479 S.W.3d 840, 842-43 (Tex. Crim. App. 2016), but the record must reveal actual, and not merely theoretical, harm. Elizondo v. State, 487 S.W.3d 185, 205 (Tex. Crim. App. 2016).

A. Entire jury charge

The charge correctly includes the statutory definition of “possession” as “actual care, custody, control, or management.” Tex. Health & Safety Code § 481.002(38). Non-statutory instructions, such as the joint-possession instruction at issue, are generally disfavored. Beltran de la Torre, 583 S.W.3d at 618. In Beltran de la Torre, the high court held that the joint-possession instruction is generally error for two reasons: (1) it is “unnecessary” because the statutory definition of “possession” (when included in the charge) is broad enough to encompass the concept of joint possession; and (2) it impermissibly draws the jury's attention to evidence that supports the State's joint-possession theory. Id. at 619 (“The State was free to argue the concept of joint possession—that is, that Appellant exercised “actual care, custody, control, or management” over the drugs along with the other individuals present. But the State was not entitled to a special, non-statutory instruction emphasizing to the jury that such a conclusion would be permissible.”). Thus, as in Beltran de la Torre, the instruction in the present case was unnecessary and constituted an improper comment on the weight of the evidence.

We note the instruction appeared in the abstract portion of the charge and not in the application portion. “[R]eversible error in the giving of an abstract instruction generally occurs only when the instruction is an incorrect or misleading statement of a law that ‘the jury must understand in order to implement the commands of the application paragraph.’ ” Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). Although the joint-possession instruction is unnecessary, it is “substantively correct.” Beltran de la Torre, 583 S.W.3d at 619. Viewed in light of the charge as a whole, we conclude this factor is either neutral or slightly weighs in favor of a finding of harm.

B. State of the evidence

The evidence supporting a finding that appellant possessed the methamphetamine was substantial and included: (1) appellant was the owner and driver of the car, and, therefore, exercised ultimate control over the car and its contents; (2) appellant was present when officers searched the car and found methamphetamine in the car's center console; and (3) officers found other drug paraphernalia in appellant's car, including baggies, a scale, and a glass pipe with residue in it. “Together, the combined and cumulative force of this evidence would allow rational jurors to conclude beyond a reasonable doubt that [appellant] intentionally and knowingly possessed the [methamphetamine.]” Beltran de la Torre v. State, 546 S.W.3d 420, 425 (Tex. App.—Houston [1st Dist.] 2018) (evidence sufficient to support conviction of possession), rev'd on other grounds and remanded sub nom., Beltran de la Torre, 583 S.W.3d at 622-23; see also Tate v. State, 500 S.W.3d 410, 417 (Tex. Crim. App. 2016) (evidence was sufficient to support conviction for possession when defendant owned and was driving the car in which the drugs were found, the drugs and a syringe were in plain view, and they were conveniently accessible to the defendant). Appellant does not argue on appeal that the evidence is legally insufficient to support the jury's finding that he was guilty of possession.

This factor weighs heavily against a finding of harm.

C. Arguments of counsel

In voir dire, the State explained that “multiple people can possess the same thing all at once; and that's under the whole theory of care, custody, and control. So, I don't need to have something directly in my hands to possess it.” The prosecutor gave an example:

So, if two persons live together and they both -- one of those persons brings something illegal into the home and rest it in the living room. They both know it's illegal, and they both know that it's there.

The law in the State of Texas says that they both possess it, because they both know it's illegal and they both know it's there. However, if that person brings it to their room and the other person has no knowledge of its existence, that [sic] only that one person possesses that thing.

When the prosecutor asked if any venire member had “an issue with that principle as a whole,” there was no response from the panel.

Very little attention was paid to Zavala or her potential possession of the narcotics during trial. The State's theory was one of simple possession, in the context of appellant's intent to deliver the drugs. During closing arguments, the State argued that the “major point of contention” was evidence of appellant's intent to deliver. The prosecutor went through the elements of the charged offense (possession with intent to deliver) and the evidence that supported each element. When discussing the element of knowing possession, the prosecutor stated:

[T]he item, the methamphetamine, was found on the driver's side of the vehicle. It was in the Defendant's car. That's his vehicle․ So there are several items in that car all over that belonged to the Defendant that pointed to his knowledge that there were drugs in the car, and the drugs were found on his side of the vehicle.

The prosecutor also again explained to the jury that “two or more people can possess the same controlled substance at the same time. So even if there's another person in the car, it does not absolve the Defendant from actually possessing that item.”

For its part, the defense largely focused its closing argument on the credibility of Officer Williams and his partner, suggesting that perhaps “these two young men [made] up reasons to stop people.” Defense counsel argued:

If neither one of these officers can be truthful or not responsible enough or negligent in their reporting on simple questions, very simple questions, “Where were you sitting, who was with you, what did you do next, what did you see, what else did you do,” if they can't be truthful with that, I'm not sure if you can believe other stuff that he told you because why not tell you the actual facts and not contradict each other?

Appellant also argued that there was no evidence of intent to deliver because, for instance, police did not find any cash in the car, which if present could have been indicative of a drug deal. At most, defense counsel conceded, appellant was potentially guilty of possession: “If you believe that the items that were admitted into evidence came from inside the vehicle and you believe that video is credible, all right, then the only conclusion I believe and I submit to you is if he is guilty of anything, it may be possession.” But, counsel then posited to the jury, “Was he actually in possession? What puts him in possession? If you look at the video, the passenger, which actually called the probable cause for the police to get into that vehicle was obscuring a bong; and it was covered by a sack. And you saw that woman and she is sitting in that chair, that bong was right here behind her hip.”

In response to the defense's reference to Zavala, the State told the jury, “it's irrelevant as to whether or not the female passenger is considered to have information of anything. The fact that it's his car, all the items were found in his car and the drugs were found on his side of the vehicle, he knowingly possessed that methamphetamine.”

Because defense counsel essentially conceded that, if the jurors believed Officer Williams and the body-cam video, then appellant was guilty of possession (but not with intent to deliver), this factor does not weigh in favor of harm. Further, the Court of Criminal Appeals acknowledged that the State is “free to argue that the statutory definition of ‘possession’ includes the concept of ‘joint possession.’ ” Beltran de la Torre, 583 S.W.3d at 620; accord Beltran de la Torre v. State, No. 01-17-00218-CR, 2020 WL 4689203, at *6 (Tex. App.—Houston [1st Dist.] Aug. 13, 2020, pet. ref'd) (mem. op., not designated for publication) (on remand, recognizing that the State's argument regarding joint possession was permissible and thus did not weigh in favor of an egregious-harm finding); Kersey v. State, No. 08-20-00037-CR, 2021 WL 5860920, at *8 (Tex. App.—El Paso Dec. 10, 2021, pet. ref'd) (mem. op., not designated for publication) (State's joint-possession argument did not exacerbate any harm caused by erroneous instruction).

This factor weighs against a finding of harm.

D. Other relevant information

Neither party points to other information in the record establishing the presence or absence of harm regarding the joint-possession instruction. Having identified no other relevant information on our own, this factor does not weigh for or against a finding of some harm.

On balance, we conclude that the joint-possession instruction, though error, did not cause appellant any actual harm. We overrule appellant's issue.

Conclusion

Having overruled appellant's sole issue, we affirm the trial court's judgment.

FOOTNOTES

1.   The prosecutor in this case stated during the charge conference, “That [joint-possession instruction] is pulled directly from the most recent pattern charge instructions for controlled substance offenses.” The Court of Criminal Appeals specifically noted its disagreement with the Texas Committee on Pattern Jury Charges on this issue. Beltran de la Torre, 583 S.W.3d at 622 n.7 (citing Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges: Intoxication, Controlled Substance & Public Order Offenses PJC 41.6 (2019) (suggesting that instructions on “joint possession” and “mere presence” are permissible when raised by the facts)). The most recent version of the PJC, citing Beltran de la Torre, does not include the joint-possession language in its instruction for controlled substance cases, available online at texasbarbooks.com (last accessed on November 17, 2025).

Kevin Jewell, Justice