Opinion
No. 05-04-01168-CR
Opinion Filed November 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 50420. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
Appellant Dale Lee Stoff was convicted of manufacturing a controlled substance, methamphetamine, in an amount of four grams or more, but less than 200 grams. Tex. Health Safety Code Ann. §§ 481.002(25), 481.102(6), 481.112(a) and (d) (Vernon 2003 and Supp. 2004-05). After a jury found appellant guilty, it assessed punishment, enhanced by two prior felony convictions, at twenty-five years. On appeal he asserts four issues: (1) the evidence is legally and factually insufficient to corroborate the accomplice witness testimony against him; (2) there was insufficient evidence, both legally and factually, that appellant manufactured the controlled substance methamphetamine; (3) the trial court erred by failing to instruct the jury on the necessity of accomplice witness corroboration; and (4) his trial counsel was ineffective in failing to request a jury charge regarding the necessity of evidence corroborating the accomplice witness testimony. For the following reasons, we affirm the judgment of the trial court.
I. Factual Background
On August 17, 2002, Officer Shane Kumler of the Denison Police Department, observed a blue Ford hatchback fail to stop at a stop sign. Even after he drove behind the vehicle and activated the lights and siren on his patrol car, the driver did not stop, but instead, the driver accelerated the car. After several blocks of this pursuit, the driver stopped the vehicle and fled on foot down an alley. Officer Kumler identified the driver as the appellant. Officer Kumler lost sight of the appellant and began to search the area. However, Officers Carney and Newton joined Officer Kumler in a search for appellant. Officer Newton talked to a neighbor who recognized the blue Ford hatchback and directed him to the appellant's address, 700 E. Hannah. Then, Officer Newton advised Officer Kumler of appellant's possible location and Kumler proceeded to 700 E. Hannah. When he arrived, Officer Kumler observed the house's windows were boarded over. However, the door on the east side of the house was open. He looked in the door and saw glassware, chemicals, tubing, hoses, Latex gloves, and funnels. Also, he smelled a strong chemical odor being emitted from the residence. He recognized it as the chemicals used to make methamphetamine. Officer Kumler knocked on the door and no one answered. Then, Officers Kumler and Carney went to the backyard of the house and knocked on the door of an RV parked behind the house. A woman who identified herself as Andrea Thomas answered the door. Thomas and her boyfriend, who was later identified as Arvel Price, stepped out of the RV and spoke with Officer Carney. Price gave what was later determined to be a false name and was ultimately arrested for "failure to I.D.," handcuffed, and taken to the Denison Police Department. While in custody, Price was advised of his rights and gave a recorded statement to Officer Timothy Murrin, implicating the appellant in the manufacturing of methamphetamine. In this statement, Price admitted that: (1) he and appellant had been "cooking dope" in the lab set up in appellant's house; (2) appellant's brother owned the house, but he let appellant live there; and (3) appellant allowed Price to live in the RV behind the house. Officer Kumler contacted the supervisor at the narcotics division, Sergeant Don Maury, and they obtained a search warrant for 700 E. Hannah. While executing the search warrant, Officer Murrin found a wallet in the residence which contained appellant's driver's licence. Also in the wallet was a Wal-Mart receipt for the type of chemicals and equipment used in the manufacture of methamphetamine, including rock salt, coffee filters, and Coleman fuel. Additionally, the police found an envelope addressed to the appellant at 700 E. Hannah in "Sherman, Texas", but the address reflected the Denison, Texas, zip code. The police photographed the house and its contents, seized the methamphetamine which was in various stages of processing, and seized chemicals and equipment on the premises which appeared to have been used to manufacture methamphetamine.II. Legal and Factual Sufficiency of the Evidence A. Applicable Law 1. Standards of Review
In his second issue on appeal, appellant argues that the evidence is legally and factually insufficient that appellant manufactured a controlled substance, methamphetamine, in an amount of four grams or more, but less than 200 grams. Differences exist between a factual sufficiency and legal sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Further, it is beyond dispute, determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id.a. Legal Sufficiency of the Evidence
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the fact finder's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998).b. Factual Sufficiency of the Evidence
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation since the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 484; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based upon the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 485.2. Manufacture of a Controlled Substance
To obtain a conviction, the State was required to prove appellant knowingly manufactured methamphetamine in the amount of four grams or more, but less than 200 grams. Tex. Health Safety Code Ann. §§ 481.002(25), 481.102(6), 481.112(a) and (d) (Vernon 2003 and Supp. 2004-05). The trial court submitted an instruction to the jury on the law of the parties. Therefore, in accordance with the law and the charge, the State could establish appellant knowingly manufactured methamphetamine by presenting evidence showing appellant either acted on his own or, acting with the intent to promote or assist the commission of the offense, he solicited, encouraged, directed, aided, or attempted to aid another in the manufacture of methamphetamine. See Tex. Pen. Code Ann. §§ 7.01, 7.02(a)(2) (Vernon 2003).3. Application of the Law to the Facts
The record reflects appellant was identified by Officer Kumler as the individual driving the blue Ford hatchback. Officers Kumler and Newton testified that the vehicle appellant was driving was linked by his neighbors to 700 E. Hannah where the methamphetamine lab was found. Appellant's photo identification was found in a wallet in the house where the lab was in operation. Also, the contents of the wallet included a Wal-Mart receipt reflecting the purchase of items used in the manufacture of methamphetamine, including, rock salt, coffee filters, and Coleman fuel. The police also located in the residence an envelope addressed to the appellant at 700 E. Hannah. Photographs admitted into evidence show the materials and equipment used in the manufacture of methamphetamine were in plain view and scattered all over the house. Additionally, Officer Kumler testified that a strong odor he recognized to be the chemicals used to make methamphetamine was noticeable from outside of the residence. Laboratory results were admitted into evidence showing the presence in the house of methamphetamine in an amount of four grams or more, but less than 200 grams. The recorded statement of Price was admitted into evidence. In the statement, Price admits to manufacturing methamphetamine with appellant in the laboratory at 700 E. Hannah. He explained that appellant's brother owned the house. Appellant lived in the house and let Price live in the RV behind the house. Price assisted appellant in manufacturing the methamphetamine and in return, "Dale gives me some for helping him." When called to testify at trial, Price acknowledged that he pled guilty to manufacturing methamphetamine. However, he partially recanted his statement and claimed the methamphetamine laboratory was his and his alone. He testified that appellant just allowed him to operate the lab in the house. According to his trial testimony, he made the post-arrest statement regarding appellant's participation because he thought that appellant had set him up. After viewing the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient. We decide appellant's second issue against him.III. Accomplice Witness Testimony A. Applicable Law
In his first issue, appellant argues the evidence is legally and factually insufficient to corroborate the accomplice witness testimony against him. Under Article 38.14, a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense; the evidence is insufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); Colella v. State, 915 S.W.2d 834, 838-39 (Tex.Crim.App. 1995); see also Davis v. State, 68 S.W.3d 273, 281-82 (Tex.App.-Dallas 2002, pet.ref'd). This rule reflects a legislative determination that accomplice testimony implicating another person should be viewed with caution because accomplices often have incentives to lie, in order to avoid punishment or shift blame to another person. Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App. 1998); Hardie v. State, 79 S.W.3d 625 (Tex.App.-Waco 2002, pet.ref'd). An accomplice is one who participated with the defendant before, during, or after the commission of a crime. McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App. 1996); Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App. 1986). A person is an accomplice if there is sufficient evidence connecting him to the criminal offense as a blameworthy participant. Blake, 971 S.W.2d at 455. Accomplice witness corroboration is not reviewed under standards of either legal or factual insufficiency. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App. 1999). Rather, it is a statutorily imposed sufficiency review requiring only that there be evidence "tending to connect the defendant with the offense." Id. at 463; Lee v. State, 29 S.W.3d 570, 577 (Tex.App.-Dallas 2000, no.pet.); Article 38.14. In conducting a sufficiency review under the accomplice witness corroboration rule, a reviewing court must eliminate the accomplice testimony from consideration and examine the remaining portions of the record to see if there is other evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 36 (Tex.Crim.App. 2001); Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App. 1991).B. Application of Law to the Facts
Substantial evidence admitted into the record at trial corroborated the testimony of Price, the accomplice witness, and tends to connect the appellant with the offense. First, Officer Kumler identified the appellant as the individual who fled from him in the blue Ford hatchback and on foot. Testimony from Officers Kumler and Newton established that the vehicle was linked to the 700 E. Hannah address where the methamphetamine lab was discovered. Appellant's photo identification and the Wal-Mart receipt were both found in the wallet recovered at 700 E. Hannah. An envelope found at the residence was addressed to the appellant at 700 E. Hannah, the location where the methamphetamine was manufactured. Additionally, the record reflects: (1) the testimony of the officer regarding the strong odor he recognized to be the chemicals used to make methamphetamine at the appellant's residence, (2) the photographic evidence of the interior of the residence showing the material and equipment used in the manufacture of methamphetamine, and (3) the laboratory results confirming the existence of methamphetamine at the appellant's residence. Contrary to appellant's assertions, the record contains sufficient evidence to meet the corroboration requirement of Article 38.14. The non-accomplice witness testimony and exhibits tend to connect the appellant with the offense. Lee, 29 S.W.3d at 577; Gosch, 829 S.W.2d at 777. We resolve the appellant's first issue against him.IV. Failure to Instruct The Jury on the Need for Accomplice Witness Corroboration
In his third issue, appellant argues that the trial court erred in failing to instruct the jury on the need for accomplice witness corroboration. Appellant concedes that he did not object to the jury charge on this basis. The state concedes that failure to instruct the jury on the need for accomplice witness corroboration was an error, but asserts that the error did not result in egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Saunders v. State, 817 S.W.2d 688, 690 (Tex.Crim.App. 1991). An accomplice-witness instruction must be included in the charge on guilt or innocence whenever trial testimony offered by the State is elicited from an accomplice to the crime for the purpose of proving that the defendant committed the crime. Selman v. State, 807 S.W.2d 310, 311 (Tex.Crim.App. 1991); Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987); McFarland, 928 S.W.2d at 514. The Court of Criminal Appeals in Saunders explained how to determine the impact of the failure to charge the jury on the need for accomplice witness corroboration:whether we search for "some error" preserved by objection at trial or for "egregious error" urged for the first time on appeal, our approach to an assessment of its harmful impact is the same. "In both situations the actual degree of harm must be assayed 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."817 S.W.2d at 690 (citing Almanza, 686 S.W.2d at 171). The degree of harm sufficiently serious to be considered "egregious" is present when a reviewing court finds the case for conviction or punishment was made clearly and significantly more persuasive by the error. Id. at 692. As we concluded above, there was sufficient evidence to corroborate the accomplice witness testimony. After reviewing the record as a whole, the evidence is sufficiently convincing, absent the testimony of Price, that the jury could have convicted appellant without Price's testimony. The failure to instruct the jury on the need to corroborate Price's testimony was not critical to the outcome of the case, nor did it deny the appellant a fair trial. Id. at 693. The case for conviction was not made more persuasive by the error. Id. at 692. Accordingly, we resolve appellant's third issue against him.