No. 05-04-00136-CR
Opinion Filed August 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-80733-02. Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
Opinion By Justice RICHTER.
Albert Scott Tarpley appeals his jury conviction and enhanced fifty-year sentence for the manufacture of methamphetamine in an amount of more than four grams but less than 200 grams. In three points of error, he challenges the legal and factual sufficiency of the evidence to support the conviction, the admission at the guilt-innocence stage of trial of a subsequent arrest for possession of chemicals with intent to manufacture methamphetamine, and the admission at the punishment stage of an Arkansas penitentiary packet for enhancement purposes. We affirm.
Tarpley was tried concurrently for the offense of manufacturing methamphetamine, an offense alleged to have occurred ten days prior to the instant offense.
Background
Tarpley was arrested December 27, 2001, after he was found in an enclosed "garage-type shed" on the property of a house where officers were serving an arrest warrant. The arrest warrant was for Larry Hughes, a "known" methamphetamine manufacturer, and the shed was a methamphetamine "lab." Although there was no actual activity in the shed, officers found several items commonly used in the manufacturing of methamphetamine including bottles of ephedrine and starter fluid, a plastic bottle with a rubber-vinyl hose attached to it, two "tank-type" cylinders also with tubing, and a plastic container with coffee filters. Also in the shed were glass receptacles containing over four grams of methamphetamine. Additional receptacles containing over fifteen grams of liquid methamphetamine were found in the attic of the house. At trial, Sergeant Tracy Utsey testified he was assigned surveillance outside Hughes's home while the arrest warrant was being prepared and until it was served, and he also assisted after Tarpley's arrest. He observed Hughes's house for approximately three hours, and during that time, saw only Hughes enter the shed. Utsey testified that when he entered the shed after the warrant had been served, he noticed a "strong odor," common with the manufacture of methamphetamine, and saw Tarpley. Because he had seen only Hughes enter the shed during the surveillance, Utsey was "surprised" to see Tarpley there. Utsey conducted a "pat down" of Tarpley and found in his possession digital scales, lithium batteries, and rubber gloves, all items used in the manufacturing of methamphetamine. Utsey also found in Tarpley's possession syringes "loaded" with liquid methamphetamine-about 75 grams, and baggies containing over 190 grams of pseudoephedrine. Greg Westfall, a special agent with the Drug Enforcement Agency, testified he inspected the shed. Although the "lab" was not "active" when he arrived, some methamphetamine manufacturing had occurred there. Officer Ron Flanigan testified over objection that Tarpley was arrested August 1, 2002, slightly over seven months after his arrest in this case, for possession of chemicals with intent to manufacture methamphetamine. Among the items in Tarpley's control at the time of that arrest were pseudoephedrine tablets, lithium batteries, scales, and syringes which Tarpley admitted contained methamphetamine. Tarpley did not testify or call any witnesses, but presented, through his opening statement and cross-examination of witnesses, a theory that he was at Hughes's house and in possession of the items and substances with which he was found because he was simply "bartering" for methamphetamine to "feed" his habit. That is, he was at Hughes's house offering the items and substances in his possession in exchange for methamphetamine for his own consumption. The jury, authorized to convict Tarpley as a principal or a party, returned a general verdict of guilty as charged. Sufficiency of the Evidence
In his first two points of error, Tarpley maintains the evidence is legally and factually insufficient to support his conviction. Tarpley bases his contentions on the evidence showing that the lab was not "active" at the time he was arrested and the lack of evidence showing what he was doing in the shed. Additionally, Tarpley notes no direct evidence shows he was present while any methamphetamine was being produced or knew there was methamphetamine in the shed. Tarpley also argues that the items found in his possession suggest at most a future intent to manufacture methamphetamine. In reviewing a challenge to the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1970); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In reviewing a factual sufficiency challenge, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. Based on the indictment in this case, to obtain a conviction, the State had to prove Tarpley knowingly manufactured methamphetamine in the amount of more than four grams but less than 200 grams, including adulterants and dilutants. See Tex. Health. Safety Code Ann. §§ 481.002(25), 481.102(6), 481.112(a),(d) (Vernon 2003 Supp. 2004-05). The State could establish this through circumstantial evidence and through evidence showing Tarpley either acted on his own or, acting with intent to promote or assist Hughes with the manufacturing of methamphetamine, he solicited, encouraged, directed, aided, or attempted to aid Hughes. See Tex. Pen. Code Ann. §§ 7.01, 7.02(a)(2) (Vernon 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001) ("conclusion of guilt can rest on combined and cumulative force of all incriminating circumstances"). Here, the record reflects Tarpley was found in a shed on the property of a "known" methamphetamine "cook," had been there about three hours, and had on him various items used to manufacture methamphetamine. In the officers' opinion, the shed was a methamphetamine lab and although not "active" at the time of Tarpley's arrest, "some manufacturing had occurred there." Inside the shed were items in plain view which are commonly associated with the production of methamphetamine. And, there was an odor, also associated with the production of methamphetamine, permeating the shed. Additionally, seven months later, he was found in possession of various items used for manufacturing methamphetamine, evidence from which the jury could infer he had knowledge of the manufacturing process, an intent to manufacture methamphetamine, and was likely to have had this intent when he was arrested at Hughes's house. Although no direct evidence shows Tarpley was present when the manufacturing occurred or knew there was methamphetamine in the shed, we conclude, viewing this evidence under the appropriate standards, that the jury could rationally infer and find beyond a reasonable doubt that Tarpley, either acting on his own or as a party, manufactured methamphetamine. See Goff v. State, 777 S.W.2d 418, 420 (Tex.Crim.App. 1989) (jury could rationally find appellant engaged in process of manufacturing methamphetamine from evidence showing that odor and various items in padlocked building were consistent with operation of methamphetamine laboratory, even though laboratory not "active"); Brown v. State, 757 S.W.2d 828, 829 (Tex.App.-Waco 1988, pet. ref'd) (appellants' proximity to methamphetamine laboratory, provision of electricity to laboratory, possession of base chemicals for methamphetamine manufacture, and presence of strong odor of methamphetamine supported conviction for methamphetamine manufacturing); East v. State, 722 S.W.2d 170, 171-72 (Tex.App.-Fort Worth 1986, pet. ref'd) (appellants' presence in and control of home containing "inactive" amphetamine laboratory used by a third party, presence of odor associated with manufacture of drugs, and presence of amphetamine supported conviction for amphetamine manufacturing). In reaching this conclusion, we necessarily reject Tarpley's argument that the items found in his possession suggest at most a future intent to manufacture methamphetamine. Alone, that evidence might support such a contention but, combined with the other evidence here, it does not. We overrule Tarpley's first point of error. Evidence of Subsequent Arrest
In his second point, Tarpley complains about the admission at the guilt-innocence stage of the August 1, 2002 arrest for possession of chemicals with intent to manufacture methamphetamine. The record reflects this arrest, seven months after the arrest for the offense at hand, resulted after officers found various items associated with the manufacture of methamphetamine in Tarpley's possession during a search of a car in which Tarpley was a passenger. Tarpley objected to the admission of this extraneous offense evidence on the grounds of relevance (Texas Rules of Evidence 401 and 402), that it could show character conformity (Texas Rule of Evidence 404(b)), and that it was unduly prejudicial (Texas Rule of Evidence 403). Agreeing with the State that this evidence rebutted Tarpley's "bartering" theory and showed intent, the trial judge overruled his objection. However, the judge instructed the jury, at the time the evidence was presented as well as in the charge, that this evidence was admitted for limited purposes and could only be considered for those purposes if found beyond a reasonable doubt to have occurred. Now, on appeal, Tarpley reasserts his complaints and maintains he was harmed by the admission of this evidence because his case "was extremely weak." We review rulings on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex.R.App.P. 44.2; Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Relevant evidence is admissible except as otherwise provided by constitution, statutes, the rules of evidence, or other rules prescribed by statutory authority. See id. 402. Under Texas Rule of Evidence 404(b), extraneous offense evidence is admissible so long as it has relevance apart from its tendency to prove the character of a person, that is, as long as it tends to establish some elemental or evidentiary fact or rebut some defensive theory. See id. 404(b); Johnson v. State, 932 S.W.2d 296, 301 (Tex.App.-Austin 1996, pet. ref'd). Although evidence of an extraneous offense may be relevant, it may nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. In determining whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice, we consider (1) how well the evidence makes a "seriously contested" issue more or less probable; (2) the potential of the evidence to confuse or prejudice the jury; (3) the time needed to present the evidence; and (4) the proponent's need for the evidence. See Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000). Here, the evidence of Tarpley's subsequent arrest and the various items related to the manufacturing of methamphetamine tended to make less probable his "bartering" theory because, as the State points out, if the items in his possession at the time of the August 1, 2002 arrest reflected an intent to manufacture, then it was less probable that the items with which he was found at the time of his arrest in the instant offense were for "bartering" purposes only and more probable that he possessed the necessary intent of manufacturing methamphetamine. Thus, we conclude the evidence of the subsequent arrest was relevant and necessary. See Tex. R. Evid. 401. That the subsequent arrest occurred seventh months after the commission of the instant offense is of no consequence. See Feldman v. State, 71 S.W.3d 738, 754 (Tex.Crim.App. 2002) (extraneous offense evidence committed one week after offense at hand admissible); Mason v. State, 99 S.W.3d 652, 656 (Tex.App.-Eastland 2003, pet. ref'd) (extraneous offense evidence committed two years after offense at hand admissible). We also conclude that because the evidence of the subsequent arrest served to rebut Tarpley's defensive theory, its relevance was separate from character conformity and was thus admissible under Texas Rule of Evidence 404(b). Finally, we conclude the evidence of the subsequent arrest was not unduly prejudicial. The record reflects this evidence took little time to develop and was followed by limiting and burden-of-proof instructions, which diminished any potential for confusing the jury. See Mason, 99 S.W.3d at 656-57 (considering limiting and burden-of-proof instructions as a factor in concluding trial judge properly overruled a rule 403 objection). We overrule Tarpley's second point of error. Admission of Penitentiary Packet
In his third point, Tarpley complains about the admission of an Arkansas penitentiary packet showing a 1984 conviction for "burglary and theft of property." This packet was offered in conjunction with a 1994 Texas felony conviction for burglary of a habitation, and was used to support enhancement of the minimum range of punishment from five years to twenty-five years imprisonment. See Tex. Pen. Code Ann. § 12.42(d). Tarpley maintains now, as he did at trial, that this packet was inadmissible because it was not authenticated, contained insufficient evidence identifying him as the subject of the packet, and failed to show he was finally convicted of that offense. Tarpley further maintains that the fifty-year sentence the jury assessed demonstrates he was harmed. As the State responds, however, the sentence the jury assessed was twenty-five years beyond the minimum, indicating the jury was not concerned with what the minimum sentence was. Additionally, the jury received evidence of several other convictions, including a conviction for the August 2002 charge of possession of chemicals with intent to manufacture methamphetamine, a May 2002 conviction for possession of methamphetamine, a May 2001 conviction for driving while license suspended, a January 1998 conviction for driving while intoxicated, and a 1987 conviction for unauthorized use of a motor vehicle. Given the number of other convictions and the fact that two of these convictions were for methamphetamine related offenses, we conclude any error in the admission of the complained-of packet was harmless. See Tex.R.App.P. 44.2(b). We overrule Tarpley's third point. We affirm the trial court's judgment.