Henry Lee v. The State of Texas--Appeal from 159th District Court of Angelina County

MEMORANDUM OPINION
No. 04-03-00515-CR
Henry LEE,
Appellant
v.
The STATE of Texas,
Appellee
From the 159th Judicial District Court, Angelina County, Texas
Trial Court No. CR-21769
Honorable David Walker, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 5, 2004

AFFIRMED

Appellant Henry Lee was found guilty of possession of a controlled substance, namely methamphetamine, and was sentenced by the district court to 25 years in the Texas Department of Criminal Justice, Institutional Division. Lee argues that the evidence is both legally and factually insufficient to show that he knowingly or intentionally possessed the methamphetamine. We disagree and affirm the trial court's judgment.

Background

On July 19, 2000, Sargent Kent Graham met with a confidential informant named Jodi Conner. Connor reported to Graham that he had been to Lee's property within the past twenty-four hours, and Lee had methamphetamine and clandestine laboratory items at his property. Graham testified that Connor had given him reliable information on more than one occasion. Based on the information provided by Connor, Graham's knowledge of Lee, and Lee's criminal history, (1) Graham sought and was granted a search warrant on Lee's property.

On July 20, 2000, Sargent Kent Graham, several other peace officers, and an Assistant District Attorney executed the search warrant at a four-acre tract of property owned by Lee in Angelina County. Lee had moved four structures onto the property, including a horse or stock trailer, a large travel trailer, a small free-standing storage shed, and a camper-type trailer. Based on information received, Graham believed Lee had been living alone in one of the buildings on the property for three to four weeks. When they arrived, Lee was standing outside his truck which was parked in front of the storage shed, and employees of the local electric company were installing electric service to the property.

During the search, numerous items used to manufacture methamphetamine and 37 grams of methamphetamine were found. The items found in the three trailers included: an electric grinder, which Graham testified is used to grind up the pseudo-ephedrine tablets; pill dough, which is what is left over after the ephedrine is extracted out of the pseudo-ephedrine tablets; hypodermic needles; camp fuel, which is used to wash the methamphetamine; an accumulator, which is used to make methamphetamine through chemical reactions; and methamphetamine lab equipment such as flasks, iodine crystals, red phosphorous, muriatic acid, and red devil lye. Three items containing methamphetamine were also found on the property and admitted into evidence, including a mason jar with 34.74 grams of methamphetamine, a glass jar with .31 grams of methamphetamine, and a Pyrex baking dish with 2.24 grams of methamphetamine in it. The mason jar and the Pyrex dish were found in the storage shed, and the glass jar was found in the camper trailer.

Lee was arrested after the methamphetamine and laboratory equipment was found. Lee was indicted for intentionally and knowingly possessing a controlled substance, namely methamphetamine, in an amount of four grams or more, but less than two hundred grams. Lee filed a jury waiver, and on February 6, 2001, Lee was found guilty. On March 14, 2001 the court granted the defense motion to reopen the case to present newly discovered evidence on guilt-innocence. With the agreement of Lee's trial counsel, the State presented punishment evidence regarding Lee's prior felony convictions out of order to the court. On March 29, 2001, the court heard the new evidence, entered a finding of guilt, and sentenced Lee to twenty-five years in the Texas Department of Criminal Justice - Institutional Division.

Legal and Factual Sufficiency

Lee contends the evidence is legally and factually insufficient to show that he knowingly or intentionally possessed the methamphetamine. See Tex. Health & Safety Code Ann. 481.115 (Vernon 2003). When reviewing the legal sufficiency of the evidence, the appellate court must view the evidence in a 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 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998); Johnson v. State, 103 S.W.3d 463, 464 (Tex. App.-San Antonio 2003, no pet.). "A determination that the evidence is 'legally insufficient' means that the case should never have been submitted to the jury."Clewis v. State, 922 S.W.2d 126, 132-33 (Tex. Crim. App. 1996).

When reviewing the factual sufficiency of the evidence, the appellate court must conduct a "neutral review of all the evidence, both for and against the finding," and determine whether "the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In conducting this review, we employ appropriate deference and must not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. at 7.

1. Informant Testimony

Lee first argues that the evidence is legally insufficient to show he possessed the methamphetamine. Lee contends that other than his property ownership and presence the morning of the search, the only evidence connecting him to the offense was the testimony of Connor, the informant. Lee urges this court to apply article 38.141 of the Texas Code of Criminal Procedure in its review of this case and exclude Connor's testimony as evidence tending to connect Lee to the offense. Article 38.141 provides that a defendant may not be convicted by statements of certain confidential informants unless that testimony is corroborated. Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon Supp. 2004). However, article 38.141 became effective September 1, 2001, and the judgment against Lee was filed April 3, 2001. Therefore, we need not consider whether article 38.141 applies to Connor's testimony, and we may consider Connor's testimony when reviewing the sufficiency of the evidence.

2. Possession of a Controlled Substance

Lee also argues that the evidence, including Connor's testimony, is both legally and factually insufficient to support his conviction for possession of methamphetamine. Lee contends that because he did not have exclusive control over the property where the methamphetamine was found, the State was required to affirmatively link Lee to the methamphetamine found on his property, but failed to do so. Lee contends that the critical element lacking evidentiary support is his knowledge that the methamphetamine and the lab items were in the structures on his property. Lee argues that, even if we find the evidence legally sufficient, any facts inferred from the affirmative link factors and the informant's testimony are factually insufficient due to Connor's clear motivation, knowledge, and opportunity to set up a fabricated case against Lee.

A person possesses a controlled substance if he: (1) exercises care, control, and management of the substance; and (2) knows that the substance is contraband. Puente v. State, 888 S.W.2d 521, 526 (Tex. App.-San Antonio 1994, no pet.) (citing Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986)). A person's possession of the contraband need not be exclusive; it is sufficient if the evidence establishes the accused and another jointly possessed the contraband. Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988). When an accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of or control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986).

Lee contends that he did not have exclusive control over the methamphetamine because he did not have exclusive control over his property. The record shows that Lee was the sole owner of the property, moved four structures onto the property, and was living alone on the property. Both the State's and Lee's witnesses testified that Lee regularly used the four structures. Connor testified that a couple who stayed on the property, Jeff Buster and his girlfriend, Annette, did so in exchange for work clearing and cleaning the property, and they were kicked off the property a couple weeks before the warrant was executed because Jeff was not doing enough work for Lee. Thus, the evidence shows that Lee exercised care, control, and management over the property.

In order to show that he did not have exclusive control, Lee directs this court to evidence that other people had access to the property. This evidence shows that (1) Connor was left alone on the property and used Lee's personal property, a cell phone Lee left in his truck, to call his friends, who later entered the property to pick Connor up and tow his car; (2) a couple stayed on the property, with Lee's consent, for about a week but had moved about two weeks before the warrant was executed; and (3) people could come and go when Lee was not present because there was no way to lock the gates to the property. This evidence alone does not undermine the State's showing that Lee exercised care, custody and control over the property. However, the evidence that the structures on the property were unlocked on a regular basis and on the day the warrant was executed tends to show that Lee's possession of the methamphetamine was not exclusive. (2)

Regardless of whether or not Lee's possession of the methamphetamine was exclusive, the State's evidence is sufficient to show that Lee had knowledge of and exercised control over the methamphetamine. First, the evidence is sufficient to establish several affirmative links between Lee and the methamphetamine indicating Lee's knowledge of and control over the methamphetamine. Lee concedes two links: (1) Lee was present when the warrant was executed and the methamphetamine was found; and (2) Lee's right to possession, or his ownership interest, in the property where the methamphetamine was found. The evidence reveals two additional link factors. When peace officers arrived to execute the warrant, Lee was standing by his truck in front of the storage shed where some of the methamphetamine was found, indicating his proximity to and accessibility of the contraband. In addition to the methamphetamine, the peace officers found drug paraphernalia, such as hypodermic needles, meth ingredients and meth lab equipment, on the property. See Chisum v. State, 988 S.W.2d 244, 248 (Tex. App.-Texarkana 1998, pet. ref'd) (analyzing the accused's presence when the warrant was executed, accused's proximity to and accessability of the narcotic, whether drug paraphernalia was present, and the accused's right to possess the place where the drugs were found as factors in determining whether an affirmative link existed).

Second, Connor's testimony supports the inference drawn from the physical evidence that Lee had knowledge of and control over the methamphetamine. Connor testified that the day before the warrant was executed Lee had a large amount of methamphetamine, which he had just finished manufacturing. Connor testified that Lee was the one with control and custody over the meth, and the other people on the property were only there to purchase the methamphetamine. Connor also testified that he visited Lee at the property ten to fifteen times, and Lee was in possession of methamphetamine almost every time.

Lee contends that Connor's testimony was sufficiently undermined by evidence of Connor's clear motivation, knowledge, and opportunity to set up a fabricated case against Lee. When the court allowed the evidence reopened, Lee offered the testimony of Mona Weeks, Connor's girlfriend. Weeks testified, in part, that Connor carried materials with which to make methamphetamine in his car; Connor was aggravated and spent the day before the search on Lee's property; and Connor was jealous of Lee's relationship with Weeks and Connor's wife. Weeks testified that she believed Connor planted the methamphetamine and lab equipment on Lee's property. Moreover, Lee contends that Connor was caught lying under oath regarding his reasons for working with Graham.

Here, the trial court considered the credibility of both Connor and Meaks and found Connor's testimony was more credible. In conducting our review, we must give appropriate deference to this finding by the trial court, which was the sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 7. Therefore, the affirmative link factors considered together with Connor's testimony are both legally and factually sufficient to support the trial court's finding that Lee possessed the methamphetamine. See Warmowski v. State, 818 S.W.2d 505, 507 (Tex. App.-San Antonio 1991), aff'd, 853 S.W.2d 575 (Tex. Crim. App. 1993) (finding sufficient evidence based on plain view and defendant's proximity to contraband).

Conclusion

Based on the foregoing reasons, the judgment of the trial court is affirmed.

Catherine Stone, Justice

Do Not Publish

1. Connor's criminal history included four convictions: (1) driving while intoxicated, (2) delivery of a controlled substance, namely methamphetamine, (3) forgery by passing, and (4) unauthorized use of a vehicle.

2. Graham testified that the horse trailer and camper trailer were locked and had to be forced open, although he did not personally try to open the door. He also testified that the storage shed was unlocked. Lieutenant Ramiro Mindeola testified that nothing was locked. Lee testified that the only building that was ever locked was the storage shed, where he kept his saddle tools.