No. 12-01-00346-CR
Opinion delivered February 28, 2003. DO NOT PUBLISH
Appeal from the 402nd Judicial District Court of Wood County, Texas
Panel consisted of Worthen, C. J, and Griffith, J.
JAMES T. WORTHEN, Chief Justice.
Robert Clayton Poage ("Appellant") appeals his conviction for possession of a controlled substance, methamphetamine, 400 grams or more, with intent to manufacture. In his sole issue on appeal, Appellant asserts that the evidence is not legally or factually sufficient to support a conviction. We affirm.
Background
On January 25, 2001, Wood County sheriff's deputies executed a search warrant at the residence of Melvin Jordan ("Jordan") in Quitman, Texas. The search revealed possible methamphetamine product and a clandestine methamphetamine lab. Consequently, Jordan was arrested. Thereafter, he agreed to cooperate with the investigators and told them that Appellant owned the seized lab. At the request of Lieutenant Joyce Box ("Box"), supervisor of the Sheriff's Department criminal investigations, Jordan made three recorded telephone calls to Appellant. At the time Jordan made the calls, Appellant was unaware that the lab had been seized. In each call, Jordan requested that Appellant come to his residence and pick-up the "stuff." The Wood County Sheriff's Department conducted a warrant check and discovered that Appellant had an outstanding warrant. Wood County sheriff's deputies conducted a stake-out of Jordan's residence, hoping that Appellant would arrive. However, after several days, the stake-out was discontinued because Appellant never came to the residence. Jordan was instructed that he was not to open the door if Appellant arrived after the stake-out ended. Instead, he was to call 911 and the sheriff's office would respond. On February 2, 2001, Jordan alerted the Sheriff's Department that Appellant had just left Jordan's residence, driving a blue Suburban. Sheriff's Department Lieutenant J. L. Miller ("Miller") was driving westbound on FM 778 near Quitman, Texas, when he saw a blue Suburban pass his vehicle. After recognizing the vehicle because of information from the Sheriff's Department dispatch, Miller radioed Officer Robert Holland ("Holland"), with the Quitman Police Department, to stop the vehicle. Miller also told Holland about the warrant for Appellant's arrest. Holland stopped the vehicle, a 1989 Chevrolet Suburban, in Quitman. Miller arrived at about the time Holland stopped the vehicle, confirmed the driver was Appellant, and had Holland immediately handcuff and arrest him. After Appellant was secure, Miller "brought the two female [passengers] out of the vehicle." He checked the vehicle for weapons and found a small black bag in the front floor board of the driver's side of the vehicle. When he opened the bag, Miller discovered another black bag inside which contained two packages of what he believed to be methamphetamine, two loaded syringes, several unloaded syringes, a spoon with residue, and various other objects. Further, Miller noticed a very strong chemical odor similar to the smell of hydrous ammonia emanating from the vehicle. He also detected several other odors including ether. Additionally, Miller observed items through the front and rear windshields of the Suburban, including bottles of ammonia and hoses, and noted that the vehicle was packed full, "up to, over the driver's seat." However, Holland testified that most of the items in the vehicle were covered up and some were in trash bags. Box arrived at the scene shortly after the stop and spoke to Miller, who presented her with the black bag he found in the front floorboard. The Suburban was towed to the sheriff's office and unloaded under Box's supervision. The seized items were locked in evidence, and the items inside the Suburban were inventoried. The contents found in the Suburban included Red Devil lye, Sudafed and Actifed tablets, lithium batteries, blow torches, denatured alcohol, acetone, starter fluid, numerous syringes (loaded and empty), a Pyrex bowl with a heating pad, propane bottles filled with anhydrous ammonia, and a portable electric pack. Appellant was charged by indictment with possession of a controlled substance, methamphetamine, 400 grams or more, with intent to manufacture, enhanced by three prior felony amphetamine possession offenses. At trial, Miller testified that, during his thirty years of experience in law enforcement, he had smelled chemical odors such as those emanating from the Suburban many times in the past. He also testified that he believed the smells indicated the presence of chemicals used to produce methamphetamine. Box testified that after Jordan was arrested, he implicated Appellant, claiming that the materials found in the search of Jordan's residence were Appellant's and that Appellant brought all of the discovered items to Jordan's house. Further, Box testified that, according to Jordan, if Appellant came to Jordan's residence, Appellant would bring more chemicals and equipment to cook more methamphetamine. However, Box also stated that Jordan never, to her knowledge, called and asked Appellant to bring a methamphetamine lab from Dallas. Based on Box's training and experience in narcotics, she testified that the items found in the Suburban were either components of methamphetamine or equipment used in the manufacturing process by a clandestine lab. Box testified that she found an "open" title to the vehicle inside one of the bags and that the title was unusual because the word "Suburban" was written across it. She also described a black organizer with a cell phone holder that she discovered inside the Suburban. The organizer contained two birth certificates, one for Appellant and one for an Amber Michelle Poage, paperwork addressed to "Robert Clayton," and a list, or "recipe of sorts," on the back of a piece of paper. Based on her experience and training in narcotics, Box testified that the list appeared to be an attempt to work out the proportions for ingredients needed to manufacture methamphetamine. Claybion F. Cloud, III ("Cloud"), a forensic chemist with the Department of Public Safety crime lab in Tyler, Texas, conducted a scientific analysis of substances discovered in the Suburban, which included rock-like substances, loaded syringes, jars of liquids, solids and powders, powdering substances in black bottles, residue on spoons, and a bag of red powder and pellets. Cloud found a total of 2,666.98 grams containing methamphetamine that included the salts, optical isomers, and salts of optical isomers of methamphetamine, along with any adulterants and dilutants. Based on his training and experience, Cloud also testified regarding the two common ways to manufacture methamphetamine, a cold or "Nazi" cook, and the red "p" and iodine cook. After viewing, in the courtroom or through photographs, the items found in the Suburban, Cloud testified that there was nothing lacking to manufacture methamphetamine except for an acidic gas used in the powdering-out stage. Ultimately, Appellant was convicted by a jury of possession of a controlled substance, methamphetamine, four hundred grams or more, with intent to manufacture. Appellant elected to have punishment assessed by the court and was sentenced by the judge to thirty years of imprisonment and a $10,000.00 fine. Evidentiary Sufficiency
Standard of Review "Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction." Escobedo v. State , 6 S.W.3d 1, 6 (Tex.App.-San Antonio 1999, no pet.) (citing Jackson v. Virginia , 443 U.S. 307, 315-16, 99 S.Ct. 2781, 2786-88, 61 L.Ed.2d 560 (1979)). The standard of review is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319, 99 S.Ct. at 2789; LaCour v. State , 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). The evidence is viewed in the light most favorable to the verdict. Jackson , 443 U.S. at 319, 99 S.Ct. at 2789; LaCour v. State , 8 S.W.3d at 671. The conviction will be sustained "unless it is found to be irrational or unsupported by more than a `mere modicum' of the evidence." Moreno v. State , 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). The jury is the sole judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State , 876 S.W.2d 316, 321 (Tex.Crim.App. 1994). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury's domain. Losada v. State , 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). If a reviewing court finds the evidence legally insufficient to support a conviction, the result is an acquittal. Tibbs v. Florida , 457 U.S. 31, 41-42, 102 S.Ct. 2211, 2217-18, 72 L.Ed.2d 652 (1982). After a reviewing court has found that the evidence is legally sufficient to support the verdict, the court may go forward with a review of the factual sufficiency of the evidence. Clewis v. State , 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). In reviewing the factual sufficiency of the evidence, a court examines all the evidence "without the prism of `in the light most favorable to the prosecution' and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Id . at 134. The court must inquire whether a neutral review of all the evidence, both for and against the verdict, establishes that the proof of guilt is so manifestly weak as to undermine faith in the jury's resolution, or the proof of guilt, although sufficient if taken alone, is greatly offset by conflicting proof. Johnson v. State , 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Factual sufficiency review should be appropriately deferential to deter an appellate court from replacing its judgment for that of the fact finder, and any examination of the evidence should not substantially intrude upon the fact finder's role as the exclusive judge of the weight and credibility given to witness testimony. Id. at 7; Clewis , 922 S.W.2d at 133. Wrong and unjust verdicts include ones in which the verdict is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Santellan v. State , 939 S.W.2d 155, 165 (Tex.Crim.App. 1997). The reviewing court examines all of the evidence in the record pertaining to the factual sufficiency challenge, not just evidence confirming the verdict. Id . at 164. The jury's determination on any conflicting evidence is usually decisive. Van Zandt v. State , 932 S.W.2d 88, 96 (Tex.App.-El Paso 1996, pet. ref'd). In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State , 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). The correct charge "would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id . Elements of the Offense
In this case, Appellant was convicted for possession of a controlled substance, methamphetamine, 400 grams or more, with intent to manufacture. The elements of the offense are that (1) a person (2) knowingly (3) possesses with intent to manufacture (4) a controlled substance listed in Penalty Group 1. Tex. Health Safety Code Ann. § 481.112(a) (Vernon Supp. 2001). To support a conviction for possession of a controlled substance, the State must prove (1) that the accused exercised care, control, or custody over the substance, and (2) that the accused was conscious of his connection with the substance and knew what it was. Brown v. State , 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Roberts v. State , 963 S.W.2d 894, 898 (Tex.App.-Texarkana 1998, no pet.); Ortiz v. State , 930 S.W.2d 849, 853 (Tex.App.-Tyler 1996, no pet.). The evidence may be direct or circumstantial. Brown , 911 S.W.2d at 747; Roberts , 963 S.W.2d at 898. Regardless, the evidence must establish that "the accused's connection with the drug was more than just fortuitous." Brown , 911 S.W.2d at 747; Roberts , 963 S.W.2d at 898. The State may prove that a person "knowingly" possessed a controlled substance by introducing evidence that positively links the accused to the contraband. Brown , 911 S.W.2d at 747. The nexus need not eliminate every other "outstanding reasonable hypothesis" except the accused's guilt. Id. at 748. If the accused is not in sole control of the location where the drugs are discovered, additional links must be revealed between the accused and the controlled substances. Villegas v. State , 871 S.W.2d 894, 896 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (citing Cude v. State , 716 S.W.2d 46, 47 (Tex.Crim.App. 1986)). An "affirmative link" is not a legal rule, but simply a shorthand method of proving that the accused possessed the contraband knowingly or intentionally. Roberson v. State , 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The quantity of factors is less decisive than the reasonable impact of the factors in substantiating the elements of the offense. Gilbert v. State , 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); see also Wallace v. State , 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd). Factors which may be considered in developing an affirmative link between the accused and the contraband are as follows: (1) the accused was present at the time of the search; (2) the contraband was in plain view; (3) the accused was in close proximity to the contraband; (4) the accused had accessibility to the narcotic; (5) the accused was under the influence of narcotics when arrested; (6) the accused possessed other contraband or narcotics when arrested; (7) there was an odor of contraband; (8) there was contraband or drug paraphernalia present; (9) the accused owned or had the right to possess the place where drugs were found; (10) the location of the contraband was enclosed; (11) the accused was driving the vehicle where contraband was discovered; (12) drugs were found on the same side of the vehicle as accused; (13) the amount of contraband was large enough to indicate the accused knew of its existence; and (14) there was a relationship between the location of the contraband and the accused's personal belongings. Roberson , 80 S.W.3d at 735 n. 2; Roberts , 963 S.W.2d at 898; Villegas , 871 S.W.2d at 896-97. Analysis
Appellant contends that the evidence is legally insufficient because the State did not prove Appellant loaded the contraband into the Suburban. Although such evidence would show a connection between Appellant and the contraband, the absence of any evidence that Appellant loaded the Suburban is not determinative. A review of the evidence in the light most favorable to the verdict reveals that Appellant was the driver of the Suburban where the contraband and paraphernalia were discovered. An "open" title to the vehicle with "Suburban" written across it was found in the Suburban driven by Appellant. From the "open" title, the jury could have reasonably inferred that Appellant owned the Suburban. A black bag containing methamphetamine was discovered on the front floor board of the driver's side of the vehicle. Contraband and paraphernalia were found in an enclosed area, the Suburban. There was a very strong chemical odor emanating from the vehicle. The Suburban was packed full with numerous substances, liquids, powders and solids, and an extensive amount of equipment to manufacture methamphetamine. Some of the equipment was visible through the front and rear windshields of the vehicle. Substances discovered in the Suburban totaled 2,666.98 grams containing methamphetamine, including the salts, optical isomers, and salts of optical isomers of methamphetamine, together with any adulterants and dilutants. A black organizer with Appellant's birth certificate inside, along with paperwork addressed to Appellant, was found in the Suburban. Inside the organizer was a recipe that Box believed to be an attempt to work out proportions for the ingredients to manufacture methamphetamine. We conclude that the quality of these factors is sufficient to link Appellant to the contraband in question. Therefore, viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found the elements of possession of a controlled substance beyond a reasonable doubt. Accordingly, Appellant's challenge to the legal sufficiency of the evidence is overruled. Having determined that the evidence is legally sufficient to support the verdict, we address factual sufficiency. Appellant argues that the absence of evidence that he loaded the Suburban renders the evidence factually insufficient to support the jury's verdict. However, we must conduct a neutral review of all the evidence in our evaluation of factual sufficiency. Johnson , 23 S.W.3d at 11. In conducting our review, we note that Miller and Box testified that they did not observe Appellant load the Suburban with the contraband or equipment. Miller testified that he did not know if Appellant looked in any of the bags inside the Suburban. Further, Miller testified that he participated in the stake-out of Jordan's residence but was not watching the house at the time of Appellant's arrest. Box testified that, in the recorded telephone calls, Jordan asked Appellant to pick-up "stuff" from Jordan's house, but did not ask Appellant to bring anything with him. Also, Box testified that Jordan never, to her knowledge, called and asked Appellant to bring a methamphetamine lab from Dallas. Further, Box testified that Jordan's telephone was not wiretapped, and she could not have heard conversations between Appellant and Jordan if Appellant had initiated the telephone call. Box also testified that there were no results of fingerprint testing on items located inside the Suburban. She testified that there was no methamphetamine in Jordan's house on February 2, 2001, but admitted that the house had not been searched since approximately January 29 or 30. This evidence, viewed in isolation, tends to support Appellant's contention that he was not the owner of the materials located in the Suburban and that he did not knowingly possess these items. However, in reviewing the entire record, both for and against the jury's verdict, we do not find that proof of Appellant's guilt is so manifestly weak as to undermine faith in the jury's verdict, or that the proof of guilt, although sufficient if taken alone, is greatly offset by conflicting proof. Therefore, Appellant's challenge to the factual sufficiency of the evidence is overruled. Conclusion
Based upon our review of the record, we hold that the evidence is both legally and factually sufficient to support the jury's verdict that Appellant was guilty of possession of a controlled substance, methamphetamine, 400 grams or more, with intent to manufacture. Therefore, the trial court's judgment is affirmed .