John Wayne Woodall v. The State of Texas--Appeal from 91st District Court of Eastland County

Opinion filed December 1, 2005

In The

Eleventh Court of Appeals

__________

   No. 11-04-00149-CR

__________

   JOHN WAYNE WOODALL, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 91st District Court

Eastland County, Texas

Trial Court Cause No. 03-20,060

O P I N I O N

The jury convicted John Wayne Woodall of the first degree felony offense of manufacture of methamphetamine in the amount of 4 grams or more but less than 200 grams and the second degree felony offense of possession of methamphetamine in the amount of 4 grams or more but less than 200 grams. The jury assessed punishment at 60 years confinement on the manufacturing offense and 10 years confinement on the possession offense. The trial court sentenced appellant accordingly and ordered that the sentences run concurrently. We affirm.

Issues Presented

Appellant presents two issues for review. In his first issue, he challenges the legal sufficiency of the evidence to support his conviction for manufacture of methamphetamine. In his second issue, he complains that the trial court erred in admitting evidence of an extraneous offense during the punishment phase of the trial.

Sufficiency of the Evidence

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given their testimony. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981).

Evidence at Trial

The State called four witnesses during the guilt/innocence phase of the trial: (1) Department of Public Safety Trooper Jason Shea; (2) Department of Public Safety Narcotics Officer Sergeant James C. Rhodes; (3) Texas Ranger David Hullum; and (4) Department of Public Safety Chemist Joel Budge. Appellant did not present any witnesses during the guilt/innocence phase of the trial.

On June 25, 2001, Trooper Shea was working patrol with Trooper Foster in the eastbound lanes of Interstate 20 between Cisco and Eastland. Appellant was driving a vehicle in front of them. After appellant committed a traffic offense, Trooper Shea activated his emergency lights to stop appellant. Appellant pulled over to the shoulder of the road, stopped his vehicle, and got out of the vehicle.

Trooper Shea got out of the patrol car and approached appellant=s vehicle. Appellant gave Trooper Shea his driver=s license. Appellant had a passenger, Michael Steddum, and a pit bull dog in the vehicle. The dog was barking and very protective of the vehicle. Appellant and Steddum gave conflicting stories as to where they had been and where they were going. Appellant told Trooper Shea that he was buying the vehicle from two individuals. Trooper Shea testified that appellant was extremely nervous and would not make eye contact with him. Appellant was constantly moving around and would not stand still. Trooper Shea said that people who are nervous and fail to make eye contact might be involved in some type of criminal activity.

Based on the way that appellant and Steddum were acting and their conflicting stories, Trooper Shea and Trooper Foster thought that appellant and Steddum were involved in some type of criminal activity. Trooper Shea told appellant that he was going to receive a warning for the traffic offense that he had committed. Appellant did not calm down and continued to be extremely nervous. Appellant did not have insurance for the vehicle and the registration for the vehicle had expired. Trooper Shea arrested appellant for the failure to have insurance and the expired registration. Trooper Shea read appellant his Miranda[1] rights and placed him in handcuffs. Appellant asked whether Steddum could take the vehicle, but Trooper Shea said that he was going to conduct a search of the vehicle incident to the arrest. Appellant told Trooper Shea that there was nothing illegal in the vehicle, not to search the vehicle, and that the dog would bite him if he searched the vehicle. Trooper Shea and Trooper Foster decided to let appellant tie the dog to a tree that was on a hill by the highway. Steddum put a leash on the dog. Trooper Foster took the handcuffs off of appellant, and appellant took the dog and tied it to the tree. Trooper Shea approached the vehicle, and Trooper Foster watched appellant and the dog. Trooper Foster could not see appellant after appellant tied the dog to the tree. Trooper Foster ran up the hill, saw that appellant was running away, and chased appellant. Trooper Shea stayed with Steddum and placed him in handcuffs. Trooper Shea called appellant=s escape into dispatch, and a manhunt involving many law enforcement agencies ensued.

Trooper Shea then conducted a search of appellant=s vehicle. When Trooper Shea opened the back hatch of appellant=s vehicle, he smelled a strong odor of anhydrous ammonia. Trooper Shea had experience and training in the area of narcotics investigations. He said that anhydrous ammonia was one of the elements used to manufacture methamphetamine during a process called chemical synthesis. During the search, Trooper Shea found items commonly used in the manufacturing process, including coffee filters and a Dr. Pepper bottle containing a powdery substance. Trooper Shea said that the powdery substance in the Dr. Pepper bottle was an after-product of the manufacturing of methamphetamine.

Sergeant Rhodes arrived on the scene and assisted in the search. Trooper Shea and Sergeant Rhodes found a Mason jar containing a clear liquid with a white powdery substance in it. They believed that the substance was methamphetamine. They also found items commonly used in connection with manufacturing methamphetamine including coffee filters, two propane tanks that had been modified to hold anhydrous ammonia, and many types of surveillance equipment. Trooper Shea said that, in his experience, manufacturers of methamphetamine use surveillance equipment to watch for police.

Trooper Shea said that the methamphetamine in the Mason jar had been manufactured with a process called chemical synthesis. The officers seized the methamphetamine when it was in a liquid form and, therefore, not ready for ingestion. Thus, the officers seized the methamphetamine during the middle of the manufacturing process. The manufacturing process could have been completed by burning the liquid off of the methamphetamine. During the search, Trooper Shea and Sergeant Rhodes found a Coleman stove that could have been used for this purpose.

Trooper Shea took the seized items to the DPS crime laboratory in Abilene for analysis. Trooper Shea identified the seized items during his testimony. State=s Exhibit No. 1 was the Dr. Pepper bottle; State=s Exhibit No. 2 was the Mason jar containing the methamphetamine; and State=s Exhibit No. 3 was the coffee filters. Trooper Shea said that his investigation revealed that appellant had been cooking methamphetamine before getting stopped on the highway.

The law enforcement personnel did not find appellant during the manhunt. Appellant was arrested about a month later.

Sergeant Rhodes testified that he investigates narcotics offenses for the DPS. He is knowledgeable about methamphetamine manufacturing processes and the types of methamphetamine distributed throughout the state. Trooper Shea contacted him on June 25, 2001, in reference to appellant. He assisted Trooper Shea in gathering the evidence. Sergeant Rhodes believed that the Mason jar contained methamphetamine oil. He noticed an ammonia odor coming from the vehicle. The odor of ammonia is prominent around methamphetamine and is consistent with the chemical synthesis of methamphetamine. Sergeant Rhodes said that he and Trooper Shea found a number of items used in manufacturing methamphetamine, including cooking utensils that would have been used to stir different solutions, steel tanks used to carry anhydrous ammonia, and coffee filters. The coffee filters were stained, but not with coffee stains. Sergeant Rhodes thought that the coffee filters had been used to sift ephedrine B an ingredient in methamphetamine B from pill coatings. He believed that the propane stove had been used in a process to speed up the manufacturing of the methamphetamine. Sergeant Rhodes said that the Dr. Pepper bottle would have been used as a generator in the final stages of processing the methamphetamine. He also said that the methamphetamine oil in the Mason jar was in the middle stages of the manufacturing process.

Ranger Hullum had experience and training in the area of narcotics investigations. Ranger Hullum picked up the evidence from the Abilene crime lab and took it to the DPS crime lab in Austin for testing.

Chemist Budge is a drug analyst for the DPS in Austin. He has worked for the DPS for 22 years. He testified that Ranger Hullum brought the evidence to the DPS crime lab in Austin. Chemist Budge explained chemical synthesis. He said that chemical synthesis is the manufacturing or the making of a controlled substance, such as methamphetamine, either from mixing two components to make one substance or removing a component from a substance to make another substance. Pseudoephedrine, lithium, and ammonia are used in the manufacturing of methamphetamine by chemical synthesis. Coffee filters are commonly used to separate ingredients in the manufacturing of methamphetamine.

Chemist Budge analyzed the contents of the Mason jar. The Mason jar contained 122.45 grams of a solution containing methamphetamine. Chemist Budge said that the methamphetamine was not a finished product in that it was not ready for ingestion. Additional manufacturing would have been necessary to make it a finished product. The analysis of the Dr. Pepper bottle indicated that it contained pseudoephedrine. The substance found in the Dr. Pepper bottle was consistent with the manufacturing of the methamphetamine that was found in the Mason jar. The coffee filters were also consistent with the manufacturing of methamphetamine. Chemist Budge said that the items found in appellant=s vehicle basically constituted a methamphetamine lab. Chemist Budge gave the evidence back to Ranger Hullum before trial.

Analysis

The State had the burden to prove beyond a reasonable doubt that appellant knowingly manufactured methamphetamine in an amount of 4 grams or more but less than 200 grams. TEX. HEALTH & SAFETY CODE ANN. ' 481.112(a) & (e) (Vernon 2003). AManufacture@ is defined as the production, preparation, propagation, compounding, conversion, or processing of any controlled substance other than marihuana by the extraction from substances of natural origin, chemical synthesis, or the combination thereof. TEX. HEALTH & SAFETY CODE ANN. ' 481.002(25) (Vernon Supp. 2005).

Appellant asserts that, during the search of his vehicle, the police officers did not find the quantity of chemicals necessary to manufacture the amount of methamphetamine charged in the indictment. Appellant argues that, because the State failed to prove that he was in possession of sufficient ingredients necessary to manufacture the amount of methamphetamine charged in the indictment, the evidence was legally insufficient to support his manufacturing conviction. In support of his argument, appellant cites Goff v. State, 777 S.W.2d 418 (Tex.Cr.App.1989), and Brumit v. State, 42 S.W.3d 201 (Tex.App. - Fort Worth 2001, pet=n ref=d).

In Goff, police officers seized 15.2 grams of methamphetamine and various chemicals used for manufacturing methamphetamine during a search of the defendant=s mobile home. Goff v. State, supra at 419. The State sought to prove that the defendant had manufactured 400 grams or more of methamphetamine. The Court of Criminal Appeals explained that, because the seized methamphetamine was in the final stages of production, the evidence would have supported a jury finding that 15.2 grams of methamphetamine had been manufactured. Goff v. State, supra at 420. In Goff, however, the State failed to present evidence that the defendant had been in possession of sufficient chemicals necessary for the manufacture of 400 grams or more of methamphetamine. The Court of Criminal Appeals held that, in the absence of such proof, the evidence was legally insufficient to support a conviction for manufacturing methamphetamine of an aggregate weight of 400 grams or more. Goff v. State, supra at 420.

In Brumit, police officers seized coffee filters containing .34 grams of methamphetamine, containers with trace amounts of methamphetamine, and empty containers that had held ingredients for manufacturing methamphetamine. Brumit v. State, supra at 203. The State sought to prove that the defendant manufactured 4 or more grams of methamphetamine. The State proved that .34 grams of methamphetamine had been found and attempted to prove the remaining amount of meth-amphetamine based on the empty containers. The State presented evidence that the empty containers would have contained 528 pseudoephedrine tablets and that 4 or more grams of methamphetamine could have been made from that number of tablets. Brumit v. State, supra at 203-04. The court found that the empty-container evidence did not show that the defendant actually had been in possession of a sufficient amount of ingredients to produce at least 4 grams of methamphetamine. Therefore, the court held that the evidence was legally insufficient to support the defendant=s conviction for manufacturing 4 or more grams of methamphetamine. Brumit v. State, supra at 204. Goff and Brumit are factually distinguishable from this case. In Goff and Brumit, police officers seized quantities of methamphetamine, and the State sought to prove that the defendants had manufactured additional amounts of methamphetamine. In this case, the officers seized 122.45 grams of methamphetamine. The State did not seek to prove that appellant manufactured a higher quantity of methamphetamine. Rather, the State sought to prove that appellant manufactured 4 grams or more but less than 200 grams of methamphetamine. Appellant was in possession of the 122.45 grams of methamphetamine and items used for manufacturing methamphetamine when he was stopped by Trooper Shea. A strong odor of anhydrous ammonia was present. The evidence showed that the 122.45 grams of methamphetamine were in the middle stages of the manufacturing process. Because the methamphetamine seized was in the middle stages of production, the evidence supports a jury finding that appellant had manufactured 122.45 grams of methamphetamine. Goff v. State, supra at 420. The evidence was legally sufficient to support appellant=s conviction for manufacturing methamphetamine in the amount of 4 grams or more but less than 200 grams. Appellant=s first issue is overruled.

Evidence of Extraneous Offense During Punishment Phase

In his second issue, appellant argues that the trial court erred in admitting evidence of an unadjudicated extraneous offense during the punishment phase of the trial. The charged extraneous offense arose from a search of appellant=s residence on June 26, 2001, the day after appellant committed the offenses in this cause. Based on the results of the search, the State charged appellant

in another cause number with manufacturing and possessing more than 400 grams of meth-amphetamine. The trial court permitted the State to present evidence concerning the results of the search.

Appellant argues that the trial court should have excluded the evidence relating to the extraneous offense because (1) the State failed to establish that he possessed, at his residence, sufficient ingredients to manufacture 400 or more grams of methamphetamine and (2) the unfair prejudice of the evidence substantially outweighed its probative value under TEX.R.EVID. 403. Appellant=s first argument is based on Goff and Brumit. During the search of appellant=s residence, law enforcement personnel found items used in the manufacturing of methamphetamine, including salts, acetone, denatured alcohol, a gas cylinder, Mason jars with liquid solutions containing meth-amphetamine, a blender used to crush up tablets, a hose used to process the methamphetamine, and a milk carton containing pseudoephedrine. One of the Mason jars contained 470 grams of a liquid solution containing methamphetamine. The law enforcement personnel essentially discovered a methamphetamine lab during the search of appellant=s residence. The 470 grams of methamphetamine seized were in the middle stages of the manufacturing process, similar to the methamphetamine seized from appellant=s vehicle. The State charged appellant with the extraneous offense of manufacturing 400 or more grams of methamphetamine. Thus, Goff and Brumit are distinguishable for the reasons stated above. The evidence was sufficient to establish that appellant manufactured 400 or more grams of methamphetamine.

Appellant asserts that the admission of the extraneous offense evidence was so prejudicial that it should have been excluded under Rule 403. TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3(a)(1) (Vernon Pamph. Supp. 2005), provides in part that, during the punishment phase, the State may offer evidence:

[A]s to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

The admissibility of evidence at the punishment phase of a noncapital felony offense is a function of policy rather than relevancy. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Cr.App.1999); Miller-El v. State, 782 S.W.2d 892 (Tex.Cr.App.1990). Accordingly, the Texas Court of Criminal Appeals has observed that, in assessing what is relevant to sentencing, the important question is Awhat is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.@ Rogers v. State, supra at 265.

The language of Article 37.07, section 3(a)(1), establishes that the extraneous offense was relevant to the assessment of appellant=s punishment. Punishment phase evidence that the trial court deems relevant is still subject to a Rule 403 analysis. See Rogers v. State, supra at 266-67. Under Rule 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. Relevant evidence is only inadmissible under Rule 403 to the extent that its degree of unfair prejudice substantially outweighs the probative value of the evidence. Rogers v. State, supra at 266. AUnfair prejudice@ refers to Aan undue tendency to suggest [a] decision on an improper basis.@ Rogers v. State, supra at 266. Given the similarity of appellant=s conduct with respect to the manufacturing offense charged in this cause and the extraneous manufacturing offense charged, the trial court did not abuse its discretion in admitting the evidence. Appellant=s second issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

December 1, 2005

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, C.J., and McCall, J.

W. G. Arnot, III, retired effective July 31, 2005 and is, therefore, not participating.

[1]Miranda v. Arizona, 384 U.S. 436 (1966).