Nos. 05-09-01090-CR, 05-09-01091-CR
Opinion Filed July 12, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause Nos. 53234-336 and 53235-336.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
Opinion By Justice FILLMORE.
A jury convicted Brent Edward Carney of possession of certain chemicals with the intent to manufacture a controlled substance and possession of 200 grams or more but less than 400 grams of methamphetamine. Both sentences were enhanced by a prior felony conviction, and the jury sentenced Carney to ninety-nine years' imprisonment and a $10,000 fine in each case. In three issues, Carney asserts the evidence is legally and factually insufficient to support the convictions and the ninety-nine year sentences are excessive and disproportionate to the crimes committed and otherwise constitute cruel and unusual punishment. We affirm the trial court's judgments.
Carney was convicted of each offense on April 5, 2006. The Texas Court of Criminal Appeals determined Carney could file an out of time appeal in each case.
Carney stipulated to the prior conviction used to enhance punishment.
Background
Lieutenant Scott Taylor of the Whitesboro police department was on patrol when he smelled a distinctive odor that he associated with a methamphetamine lab. Taylor returned to the police station to pick up Officer Jason Withrow, who had attended training classes on methamphetamine labs and could recognize whether the odor was from a lab. The two officers returned to the area, and Withrow confirmed the odor was a combination of ether and anhydrous ammonia. According to Withrow, there is no legitimate purpose for using these two chemicals together. Both chemicals are very volatile, and the chance of explosion endangered the surrounding community. Further, the fumes from the chemicals were "absolutely lethal" to anyone breathing them and could instantly cause death. Withrow knew the odor was from a methamphetamine lab and called for additional officers. Sergeant Danny Phelps and Officer Mark Hanning responded to the call. The officers determined the odor was coming from a shed behind Carney's grandmother's house. The house was dark, but there was a light on in the shed. The officers knocked on the door of the shed, but received no response. Because they were concerned someone had been overcome by the fumes, the officers entered the shed. The officers did not find anyone inside the shed, but saw drug paraphernalia laying around the shed. The officers then knocked on the door of the house. Carney, Krisney Lemmons, and Omie Carney, Carney's grandmother, were residents of the house and were present when the officers knocked on the door. Bobby Neal was also present in the house. Carney, Lemmons, and Neal said they did not know the source of the odor. After obtaining a search warrant, the officers searched the shed and the house. In the house, the officers found between 100 and 200 "foilies" scattered around. "Foilies" are used to smoke methamphetamine. The officers also found needles, spoons, rubber hoses, and other drug paraphernalia in the house. In the shed, the officers found a bottle that had been converted into a hydrochloric gas generator. Hydrochloric gas is made from acid and salt and is used in the last step of manufacturing methamphetamine to obtain a powder form of the drug. The officers saw a large pipe sticking out of the floor of the shop. The odor was coming from the pipe. Outside the shed, the officers moved a mattress that covered a set of doors to a cellar under the shed. According to Phelps, when the officers opened the door to the cellar, the odor was "unbelievable" and "overwhelming." Hanning briefly entered the cellar and discovered there were three to six inches of liquid chemicals on the floor. The officers called Jeremy Householder, a narcotics investigator for the sheriff's office, and Jim White, the environmental protection officer for Grayson County. According to Householder, a field test showed the liquid contained anhydrous ammonia. Due to the risk to public safety posed by the presence of anhydrous ammonia, the officers evacuated Carney's grandmother and the adjacent neighbors. Withrow explained to Carney, Neal, and Lemmons that there was no doubt about what was in the shed and that the officers were trying to address a safety issue. Withrow asked Carney about the methamphetamine lab, and Carney responded, "I ain't telling you ****. I'll go to prison. I'll do my time." Neal also initially refused to cooperate, but then told the officers where they could find specific items, such as the trash from the methamphetamine manufacturing process. Based on Neal's information, the officers found the trash from the manufacturing process in the back of Carney's pickup truck. The "trash" included empty cans of chemicals, powder-coated containers, a pickle jar with holes in the top that contained sulfuric acid, and a blue thermos containing the remnants of anhydrous ammonia. According to Withrow, anhydrous ammonia must be stored in a pressurized container. Carrying anhydrous ammonia in a blue thermos is "very illegal" and "very dangerous." Householder tested the remaining liquid in the blue thermos with a drager tube, a field test specifically designed to test anhydrous ammonia. The test was positive for anhydrous ammonia. Lemmons told Withrow that Neal and Carney had "cooked" methamphetamine that day. She said Neal and Carney had gone to some place in the country to cook the methamphetamine, but returned to Carney's grandmother's house because of the rain and because they did not have salt to complete the process. Lemmons did not know where the methamphetamine was located. Withrow testified Neal confirmed that he and Carney tried to cook methamphetamine in a barn. Neal told Withrow the methamphetamine was located under the house. Neal described a small door at the back of the house that led to a crawl space and said Carney had put everything "in there." When Withrow could not locate a door to the crawl space under the house, Neal showed him a small door that had been hidden by old trees and brush. Withrow found two jars of methamphetamine under the house. The lab results showed one bottle contained 640.75 grams of liquid that contained methamphetamine and the other contained 21.30 grams of powder that contained methamphetamine. Withrow testified the liquid needed to be "gassed" to obtain a powder form of methamphetamine. At trial, Neal testified he and Carney both "had a problem" with methamphetamine. According to Neal, it was cheaper to make the drug than to buy it, and he had made methamphetamine in the past. Neal testified Carney asked him how to make methamphetamine. Neal and Carney discussed the materials that were needed, and Neal told Carney to get anhydrous ammonia and sulfuric acid. Lemmons brought the acid to Carney. After Neal got off work, he met Carney at Carney's grandmother's house. Neal and Carney drove to Highway 82 in Carney's truck to meet two men who would sell them anhydrous ammonia. Carney said he knew a place where they could mix the methamphetamine. The two men went to a barn in the country. Neal had never been to the barn before. Neal mixed the chemicals in the barn but, because Lemmons did not bring the salt, could not finish the process. The mixture started to smell, and Neal was afraid it was not safe in the barn because someone in the house across the road might smell the chemicals. It was also starting to rain. So, the two men went back to Carney's grandmother's house. They put the mixed chemicals in the cellar under the shed. At some point, Carney and Neal put the two jars underneath the house. Neal testified there was a "pretty strong odor at that point." Neal testified he did not initially tell the officers where the methamphetamine was located. However, he got scared and knew he was "in the wrong," so he cooperated in the investigation. He pleaded guilty to possession of certain chemicals with the intent to manufacture a controlled substance and possession of 200 grams or more but less than 400 grams of methamphetamine and was sentenced to ten years' confinement, probated for eight years. One of the conditions of his probation was that he testify against Carney. Lemmons testified she was living with Carney at his grandmother's house. The weekend prior to the arrests, Lemmons and Carney "split up." On the day of the arrests, Neal called Lemmons and asked her to bring some salt to some place on Chisum Trail. Lemmons assumed the two men were going to cook methamphetamine. Instead of taking the salt, Lemmons went to Carney's grandmother's house to remove her things. When Carney showed up at the house, she lied and told him she did not bring the salt because she received some traffic tickets. Lemmons does not remember Neal being in Carney's truck when Carney arrived at the house. Rather, she recalls Neal coming out of the backyard. Lemmons testified she smelled an odor on Neal, but not on Carney. She asked Carney twice about the smell. Carney first told her that he did not know the source of the odor. He then told her that nothing was going on at the house and the lab had been left in a field. In Lemmons's opinion, Neal "is responsible for all of this stuff." However, she was not with the two men when they were cooking the methamphetamine and could not testify as to "who was more at fault." Lemmons testified she pleaded guilty to the possession of methamphetamine based on a used syringe in her purse. She received probation and, as a condition of her probation, agreed to testify against Carney. According to Lemmons, Carney is a violent man. Sufficiency of the Evidence
In his first two issues, Carney contends the evidence is legally and factually insufficient to support the convictions. Specifically, Carney argues the State failed to prove Carney actually or constructively possessed either methamphetamine or anhydrous ammonia. In conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The trier of fact is the sole judge of the weight and credibility of the evidence and is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Laster, 275 S.W.3d at 517; Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We will set aside the verdict only (1) if the evidence supporting the conviction is too weak to support the verdict, or (2) when the evidence supporting the verdict is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Laster, 275 S.W.3d at 518; Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). We are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a "very limited degree." Marshall, 210 S.W.3d at 625. Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705; Marshall, 210 S.W.3d at 625; Revels v. State, No. 05-07-01555-CR, 2008 WL 5177374, at *5 (Tex. App.-Dallas Dec. 11, 2008, no pet.). We must have a "high level of skepticism about the jury's verdict" before we may reverse based on factual insufficiency. Steadman v. State, 280 S.W.3d 242, 246-47 (Tex. Crim. App. 2009). As charged in this case, a person commits the offense of possession of a controlled substance if he intentionally or knowingly possesses, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams of methamphetamine. Tex. Health Safety Code Ann. §§ 481.102(6), 481.115(e) (Vernon 2010). A person commits the offense of possession of certain chemicals with intent to manufacture a controlled substance if, with intent to unlawfully manufacture a controlled substance, the person possesses anhydrous ammonia. Tex. Health Safety Code Ann. § 421.124(a)(1) (Vernon 2010). An intent to manufacture the controlled substance methamphetamine is presumed if the person possesses or transports anhydrous ammonia in a container or receptacle that is not designed and manufactured to lawfully hold or transport anhydrous ammonia. Id. § 481.124(b)(1). A substance is presumed to be anhydrous ammonia if it is in a container or receptacle not lawfully designed to hold or transport anhydrous ammonia and a properly administered field test of the substance using a testing device or instrument designed and manufactured for that purpose produces a positive result for anhydrous ammonia. Id. § 481.124(c)(2)(A). Possession means "actual care, custody, control, or management." Tex. Health Safety Code Ann. § 481.002(38) (Vernon 2010); Tex. Penal Code Ann. § 1.07(a)(39) (Vernon Supp. 2009). A person commits a possession offense only if he voluntarily possesses the prohibited item. Tex. Penal Code Ann. § 6.01(a) (Vernon 2003). Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Id. § 6.01(b). Control need not be exclusive, but can be jointly exercised by more than one person. Taylor v. State, 106 S.W.3d 827, 830-31 (Tex. App.-Dallas 2003, no pet.). If a defendant is not in exclusive possession of the place where the contraband is found, the State must link him to it. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Taylor, 106 S.W.3d at 830-31. The evidence must establish the person's connection with the contraband was more than just fortuitous. Poindexter, 153 S.W.3d at 405-06. Links between the accused and the contraband may be established by either direct or circumstantial evidence. Id. at 405. However, no set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. Taylor, 106 S.W.3d at 831. It is the logical force of the evidence, and not the number of links, that supports a fact finder's verdict. Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006). Possible links include whether the accused was present when the contraband was found; whether the contraband was in plain view; whether the contraband was found in proximity to and accessible to the accused; whether the accused was under the influence of drugs when he was arrested; the presence of drug paraphernalia; whether the accused made any incriminating statements when arrested; whether the accused tried to flee or made furtive gestures; the odor of drugs; whether the accused owned or had the right to possess the place where the contraband was found; whether the place the contraband was found was enclosed; the quantity of the contraband found; whether the accused possessed a weapon; and whether the accused possessed large amounts of cash. Taylor, 106 S.W.3d at 831. Here, anhydrous ammonia was found in the mix of chemicals in the cellar underneath the shed and in the back of Carney's pickup truck in a container not lawfully designed to hold or transport anhydrous ammonia. The pickup truck was parked outside Carney's grandmother's house and the shed was behind the house. The officers found trash from the methamphetamine manufacturing process in the back of Carney's pickup truck. The methamphetamine was found under the house behind a small door that had been hidden by tree branches and brush. Drug paraphernalia was found in the shed and in the house. Carney lived at the house with his grandmother and was present when both the methamphetamine and the anhydrous ammonia were found. The testimony was undisputed that a methamphetamine lab has a distinctive odor resulting from the presence of anhydrous ammonia and ether and that there was a strong odor at Carney's grandmother's house. Lemmons asked Carney twice about the odor. He said first that he did not know and then told her nothing was going on at the house and the lab had been left in the field. Lemmons testified she assumed Neal and Carney were manufacturing methamphetamine when they asked her to bring them some salt. Neal testified Carney wanted to learn how to make methamphetamine. Neal and Carney drove to Highway 82 in Carney's truck and bought the anhydrous ammonia in the blue thermos from two men. They then went to a barn in the country selected by Carney, and Neal began mixing the chemicals. The two took the unfinished product back to Carney's grandmother's house and hid it in the cellar under the shed. The two men later hid it under the house. When Carney was arrested, he indicated he would "do his time" rather than talk to the police officers. Viewing the evidence in the light most favorable to the verdicts, we conclude a rational jury could find Carney possessed both methamphetamine and anhydrous ammonia. Further, viewed in a neutral light, the evidence supporting the convictions is not so weak or so against the great weight and preponderance of the contrary evidence that the verdicts seem clearly wrong or manifestly unjust. Accordingly, we conclude the evidence is legally and factually sufficient to support the convictions. We overrule Carney's first two issues. Excessive Punishment
In his third issue, Carney asserts the ninety-nine year sentence in each case is excessive and disproportionate to the crime committed and otherwise constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution, section 13 of the Texas Constitution, and article 1.09 of the code of criminal procedure. Carney acknowledges his sentences fall within the statutory range for the offenses, but argues the sentences are disproportionate to Neal's and Lemmons's probated sentences. Both of Carney's sentences were enhanced by a prior felony conviction. Accordingly, the punishment range for possession of 200 grams or more but less than 400 grams of methamphetamine was fifteen to ninety-nine years or life imprisonment and up to a $10,000 fine. Tex. Health Safety Code Ann. § 481.115(e); Tex. Penal Code Ann. § 12.42(c)(1) (Vernon Supp. 2009). The punishment range for possession of certain chemicals with intent to manufacture a controlled substance was five to ninety-nine years imprisonment and up to a $10,000 fine. Tex. Health Safety Code Ann. §§ 481.124(d)(1), 481.102(6); Tex. Penal Code Ann. §§ 12.32, 12.42(b) (Vernon Supp. 2009). Carney's sentence for each offense is within the statutory punishment range. Punishment assessed within statutory limits is generally not considered cruel and unusual. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); see also Barrow v. State, 207 S.W.3d 377, 381 (Tex. Crim. App. 2006) ("Indeed, we have described the jury's discretion to impose any punishment within the prescribed range as essentially `unfettered.'"). However, a sentence falling within the applicable range of punishment might be cruel and unusual in the "exceedingly rare" or "extreme" case in which the sentence is grossly disproportionate to the offense. Lockyer v. Andrade, 538 U.S. 63, 73 (2003); Solem v. Helm, 463 U.S. 277, 290 (1983); Barrow, 207 S.W.3d at 381. The proportionality analysis is guided by objective criteria, including (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 291. If the defendant fails to establish his sentence is grossly disproportionate to his crime, we need not address the second and third criteria set out in Solem. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Davis v. State, 119 S.W.3d 359, 364 (Tex. App.-Waco 2003, pet. ref'd). In determining whether Carney's sentence is grossly disproportionate to his crime, we consider not only the present offense but also his criminal history. See Buster v. State, 144 S.W.3d 71, 81 (Tex. App.-Tyler 2004, no pet.); Davis, 119 S.W.3d at 363. The evidence is undisputed that a methamphetamine lab and anhydrous ammonia were found at Carney's grandmother's house and that Carney lived at the house. We have concluded the evidence was legally and factually sufficient to establish Carney possessed both methamphetamine and anhydrous ammonia. The sentence for each conviction was enhanced by a prior felony conviction and falls within the punishment range established by the legislature. Finally, Carney has been convicted of two prior felonies, burglary of a habitation and burglary of a building, and two prior misdemeanors, possession of marijuana and resisting arrest. Carney relies on Neal's and Lemmon's probated sentences to support his argument that his sentences are disproportionate. However, Lemmons was charged with possession of the methamphetamine remaining in the syringe in her purse and not with any offense relating to the manufacture of methamphetamine. Although Neal was charged with the same offenses as Carney, Neal assisted the officers in locating the methamphetamine and other chemicals. And, unlike Neal, Carney was not eligible to receive probation in these cases due to his criminal history See Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d)(3), (e) (Vernon Supp. 2009). Finally, the jury was aware of the sentence Neal received when it assessed the appropriate punishment for Carney. Given the circumstances and the fact that the sentences imposed are within the statutory range, we cannot conclude that Carney's sentences were grossly disproportionate to the offenses. We overrule Carney's third issue. We affirm the trial court's judgments.