Johnny Stein v. The State of Texas--Appeal from 87th District Court of Freestone County

AFFIRMED

MARCH 8, 1990

NO. 10-88-210-CR

Trial Court

# 88-093-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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JOHNNY STEIN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 87th Judicial District Court

Freestone County, Texas

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O P I N I O N

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A jury convicted Appellant of the following separate offenses which resulted from one criminal episode: possession of less than twenty-eight grams of cocaine; possession of less than twenty-eight grams of amphetamine; and conspiracy to manufacture 400 grams or more of amphetamine. See TEX. HEALTH & SAFETY CODE ANN. 481.112 (Vernon 1990); TEX. PENAL CODE ANN. 15.02 (Vernon 1974). The jury assessed punishment at ten years in prison for possession of cocaine, eight years in prison for possession of amphetamine, and thirty-five years in prison for conspiracy to manufacture amphetamine. The court then sentenced Appellant to thirty-five years in prison, to eight years in prison, which would run consecutively with the thirty-five-year sentence, and to ten years' probation beginning upon his discharge from prison. Appellant initially appealed all three convictions, but two of the appeals have been dismissed. The only conviction on appeal is for conspiracy to manufacture amphetamine.

Appellant's court-appointed counsel filed a brief asserting three points of error. Subsequently, Appellant retained new counsel, who was granted permission to file a supplemental brief. The supplemental brief contains seven points which will be referred to as points four through ten. Three points relate to the sufficiency of the evidence. Appellant also complains that the court erred when it: (1) allowed the prosecutor to introduce evidence obtained in an illegal search and seizure; (2) overruled his objection to prosecutorial argument at the punishment stage; (3) permitted the prosecutor to impeach him with his post-arrest silence; (4) overruled his objection that a police officer's testimony was improper opinion testimony; (5) allowed the prosecutor to cross-examine him about an extraneous offense; and (6) ordered that the eight-year sentence run consecutively with the thirty-five-year sentence. Finally, he asserts that he received ineffective assistance of counsel at the trial. The judgment will be affirmed.

To be guilty of conspiracy, a defendant must intend that a felony be committed, agree with one or more persons to engage in conduct that would constitute an offense, and one of the conspirators must perform an overt act in pursuance of the agreement. TEX. PENAL CODE ANN. 15.02(a) (Vernon 1974). Agreement of the parties may be inferred from their actions. Id. at 15.02(b). Furthermore, the overt act performed in furtherance of the agreement need not be criminal in nature. Kennard v. State, 649 S.W.2d 752, 767 (Tex. App.--Fort Worth 1983, pet. ref'd).

In points one and two, Appellant argues that the court erred when it denied his motion for an instructed verdict because the State failed to meet its burden of proof and because there was a fatal variance between the indictment and proof at trial. Point four is that the evidence was insufficient to support his conviction.

The standard on appeal is whether, viewing the evidence in the light most favorable to the conviction, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). When reviewing circumstantial evidence, the question is whether the evidence excludes every other reasonable hypothesis except the defendant's guilt. Id.

Officer Price found phenylacetic acid, ether, acetic acid, formic acid, hydrochloric acid, formamide, hydrogen chloride, flasks, stoppers, beakers, syringes, a hemostat, a vacuum pump, hand-rolled "cigarettes," and "zig-zag papers" in Appellant's van. According to Price, the chemicals and glassware found in the van are used to manufacture amphetamine or methamphetamine. He also found cocaine and amphetamine on Appellant, and amphetamine and a syringe on Johnny Stephens, the passenger in the van.

Phillip Sandel, the sales manager at Scientific Chemical in Humble, sold chemicals to Appellant "quite a few" times between October 1987 and August 1988. Appellant always paid with cash, and often listed his reason for obtaining the chemicals as "personal." Dr. Deborah Reagan, a chemist with the Department of Public Safety, testified that Appellant had no legitimate purpose for possessing the "quantities and combinations" of chemicals and equipment found in his van. She said that the "recipe" for amphetamine could be found at most public libraries.

Officer Coy told the jury that Appellant lived in Fritch, approximately 600 miles from Humble. Based on his training and experience, Coy stated that people commonly drive a long distance from their home to obtain chemicals used in the manufacture of amphetamine. Appellant admitted that he had "a pretty good idea" about how the chemicals and equipment were used.

The jury could have based its decision upon the following facts: Appellant and Stephens had traveled 600 miles to purchase the chemicals and glassware; they had amphetamine in their possession; Appellant had made the same trip and purchased similar items "quite a few" times; the chemicals found in the van were those used to manufacture amphetamine; and Appellant had no legitimate reason for possessing the quantity of chemicals and equipment found in the van.

Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found from their actions an agreement between Appellant and Stephens to commit the felony offense of manufacturing amphetamine. Furthermore, the evidence was sufficient for a rational trier of fact to have found that Appellant and Stephens transported the chemicals, the overt act charged in the indictment, in furtherance of their conspiracy. The evidence was sufficient to exclude all reasonable hypotheses except Appellant's guilt. Points one, two and four are overruled.

On May 24, 1988, Officer Price stopped a 1985 Dodge van because neither the driver nor the passenger were secured by safety belts. He approached the vehicle and instructed Appellant, who had been driving, to get out of the van. Appellant and Price then proceeded to a location between their two vehicles. Price explained the reason the van had been stopped, and told Appellant he would be issued a citation for failing to wear a seat belt. Next, the officer approached the passenger side of the van to inform the passenger, Johnny Stephens, that he was also in violation of the law.

While Price was talking to Stephens through the open window of the van, he detected what his experience led him to believe was the smell of "burnt marijuana." He asked Stephens to get out of the van, informed Appellant of his suspicion, and asked for permission to search the vehicle. After obtaining Appellant's consent, Price opened the sliding door of the van. As he stuck his head into the van, he "smelled the smell of phenylacetic acid . . . real strong in the back part of the van," and noticed a blue tarp lying in the back of the vehicle. When he asked Appellant what was under the tarp, Appellant replied, "Just some stuff."

Price went to the back of the van, pulled back the tarp, and found boxes of chemicals and glassware. He then arrested Appellant and Stephens because, based on his training and experience, he believed they were engaged in the manufacture of amphetamines or methamphetamines. The van was transported to the police station where it was searched. The State introduced the items recovered from the van into evidence at Appellant's trial over his objections that they were seized in a warrantless and illegal search. Appellant's third point is that the court erred when allowed the items obtained from the illegal search of the van to be introduced into evidence.

Generally, warrantless searches are per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). However, warrantless searches of an automobile may be upheld in some circumstances where a warrantless search of a house or office would not be justified. Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 1981, 26 L. Ed. 2d 419 (1970). For a warrantless search of an automobile to be valid, there must be probable cause to search the vehicle, and exigent circumstances must exist which make obtaining a warrant impracticable. Gauldin v. State, 683 S.W.2d 411, 414 (Tex. Crim. App. 1984). Furthermore, probable cause for a warrantless search of an automobile exists when the facts and circumstances which are within the officer's knowledge and of which he has trustworthy information would lead a man of reasonable caution and prudence to believe that he will discover the instrumentality of a crime or evidence pertaining to a crime. Delgado v. State, 718 S.W.2d 718, 722 (Tex. Crim. App. 1986). If a car may be searched where it is stopped, it may also be seized and taken to the station for the warrantless search. Chambers, 90 S. Ct. at 1981.

Price initially smelled "burnt marijuana" emanating from the van, and once he obtained Appellant's consent to search the vehicle and stuck his head into the van, he smelled phenylacetic acid, a chemical associated with the manufacture of amphetamine and methamphetamine. This constituted probable cause to search the vehicle. Because the van could be searched where it was stopped, the subsequent search at the police station was also proper. See id. Therefore, the search of the van was not illegal, and the evidence obtained as a result of the search were properly admitted into evidence at Appellant's trial. See Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978); Pike v. State, 752 S.W.2d 737, 739 (Tex. App.--Waco 1988, pet. ref'd). The third point is overruled.

During the punishment phase, Appellant's wife testified about the number and ages of their children, and Appellant requested probation. In point five, he complains that the following portion of the prosecutor's argument asked the jury to speculate on improper issues:

Let me go over this a little bit with you. The guy's not eighteen years old, no job, trying to keep his family from starving. We know he's got a family. He very effectively had his wife on the stand telling you all about his kids which had nothing to do with this case.

[Appellant's counsel] doesn't want to appeal to your emotions. But that's exactly what his punishment-phase evidence attempted to do.

You know, if that were the case then maybe we want to talk about probation or something along that line. The

man--they paid income after taxes and after deductions on fifteen thousand dollars last year. You know, I would assume one would not pay tax on drug money, but only on legitimate income.

[APPELLANT'S COUNSEL]: That's outside the record, your Honor.

THE COURT: I beg your pardon?

[APPELLANT'S COUNSEL]: That's outside the record. He's arguing about facts that are not in evidence.

THE COURT: Mr. [prosecutor]?

[PROSECUTOR]: Your Honor, I think it's a reasonable deduction from the evidence that someone would not declare money derived from elicit manufacture of amphetamine on their income tax return.

[APPELLANT'S COUNSEL]: No evidence of that whatsoever one way or the other.

THE COURT: Very well. I will overrule your objection, noting your exception to the court's ruling.

[PROSECUTOR]: In any event, whether he did or didn't, we know his family wasn't starving. He come into here--[his attorney] can't argue the poor man did it--I would probably do almost anything, maybe including this, if I had my two children starving to death and that was the only thing I could do. I had no other way to do it. That's not the point. That's not where we are here. You know, he was making it. He wasn't rich. But he was making it. I suspect maybe some people on this jury may not be making it as well as he was. So we don't have that.

You know, that's not a reason to get him down here in the low range. It's not a reason to give him in a low range because this is the first time he's ever done something like this. You know, we know that's not the case. Not the first time he's been in drugs.

Proper jury argument falls within one of the following categories: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to an opponent's argument; or (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). The state has wide latitude in argument, and error does not result unless the argument is extreme, manifestly improper, or injects new and harmful facts. Denison v. State, 651 S.W.2d 754, 762 (Tex. Crim. App. 1983).

The prosecutor's argument was a plea for law enforcement and an answer to Appellant's request for probation. Although he did mention not paying taxes on drug money, the prosecutor admitted he did not know whether Appellant had done that. Even if the argument were improper, because Appellant had been previously convicted of possession of amphetamine, had cocaine and amphetamine in his possession at the time of his arrest, and had transported large quantities of chemicals on numerous occasions, when placed in its complete context it was not extreme or manifestly improper. Point five is overruled.

Appellant's sixth point is that the court erred when it allowed the prosecutor to use his post-arrest silence to impeach his testimony. His complaint is about the following exchange:

Q. You did not mention Sandel's--or did you mention Sandel's involvement in this to anybody prior to your testifying at this time?

A. I don't understand the question. Did I involve Phil?

Q. You are testifying at this time that Phil Sandel is the main culprit in this basically: Is that what you are telling me?

A. No. I didn't say Phil was the main culprit.

Q. Or one of the culprits.

A. If he is a culprit he would be up here doing this just like me, wouldn't he?

Q. Are we hearing about this for the first time today now?

[APPELLANT'S COUNSEL]: I object to the form of the question. I don't know who "we" is. I am sure the jury is hearing it all for the first time. I am not hearing it for the first time. [The prosecutor] may be. But he doesn't get to talk to the witness.

THE COURT: What is your law objection, sir?

[APPELLANT'S COUNSEL]: That he's being argumentative rather than asking a question. He's not seeking to illicit facts, your Honor.

THE COURT: Overruled.

Q. Is there anybody in authority, that being the district attorney's office and any police agency in Freestone County, Texas, that's heard about Mr. Sandel's involvement in this before today?

[APPELLANT'S COUNSEL]: I object because the defendant had no duty to discuss this matter with anybody in law enforcement after the charges were filed, your Honor.

THE COURT: Overruled your objection.

Appellant's objection at trial does not comport with his point on appeal. An objection raised on appeal will not be considered if it is different from the objection made at trial. Pyles v. State, 755 S.W.2d 98, 116 (Tex. Crim. App. 1988). Appellant's sixth point is overruled.

Officer Coy stated his opinion that the equipment and chemicals found in Appellant's van were used to manufacture amphetamine. In his seventh point, Appellant argues that the court erred when it admitted Coy's opinion testimony over his objection.

Rule 702 of the Rules of Criminal Evidence, which governs the admissibility of expert testimony, provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." TEX. R. CRIM. EVID. 702. Furthermore, opinion testimony which is otherwise admissible is not objectionable "because it embraces an ultimate issue to be decided by the trier of fact." Id. at 704. Coy's opinion testimony was, therefore, proper. However, assuming that the testimony was improper, any error was cured when Appellant testified that he had "a pretty good idea" about what the chemicals and equipment were used for, and that "ya'll done come to the point that the only thing you can use those chemicals for is amphetamine." See Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. [Panel Op.] 1981). Point seven is overruled.

Appellant's eight point is that the court erred when it allowed him to be questioned about an alleged extraneous offense. The point relates to the following exchange:

Q. When did you first meet Officer Coy?

A. Officer who?

Q. Coy.

A. I never met no Officer Coy.

Q. The guy that testified earlier today.

A. The black-headed guy?

Q. Yeah.

A. I never met him.

Q. He said he had been in your house.

A. Yeah. He's been to my house probably one night when a raid come down. They all raided my house one night looking for a lab because they had followed me from a load back or somehow or another. The whole deal was a mess. But there wasn't, you know--he never made no, phew, discovery of no lab. I never met that man.

Appellant waived any error when he failed to object as soon as grounds for the objection became apparent. See Thompson v. State, 691 S.W.2d 627, 635 (Tex. Crim. App. 1984). Furthermore, because Appellant volunteered the information that his house had been raided, he cannot complain on appeal. See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). Point eight is overruled.

In point nine, Appellant asserts that the court erred when it ordered that his eight-year sentence run consecutively with his thirty-five-year sentence. He relies on section 3.03 of the Penal Code, which provides that when an accused is found guilty of more than one offense arising out of one transaction the sentences for the offenses run concurrently. See TEX. PENAL CODE ANN. 3.03. (Vernon 1974).

Section 3.02 provides that several offenses may be joined in one trial if the state files a written notice at least thirty days prior to trial that the offenses arose out of the same episode. Id. at 3.02. However, when the state does not comply with section 3.02, the prohibition against cumulation of sentences contained in section 3.03 does not apply. Caughorn v. State, 549 S.W.2d 196, 197 (Tex. Crim. App. 1977). Here, because the State did not comply with section 3.02, section 3.03 is inapplicable.

Normally, the trial judge has absolute discretion to cumulate sentences. Smith v. State, 575 S.W.2d 41 (Tex. Crim. App. [Panel Op.] 1979). Point nine is overruled because section 3.03 does not apply, and because the court did not abuse its discretion when it ordered that the sentences run consecutively.

Finally, Appellant complains in point ten that he was ineffectively assisted by his trial counsel. A defendant must prove that his counsel's assistance was ineffective by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). In determining the effectiveness of counsel, the test is whether, considering the totality of the circumstances viewed at the time of counsel's conduct, (1) the assistance was reasonably effective, and (2) if the assistance was ineffective, whether the defendant was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674 (1984); Miller v. State, 728 S.W.2d 133, 134 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd). Furthermore, there exists a strong presumption that the attorney's conduct falls within the wide range of reasonable professional assistance. Id.

Appellant was indicted in three cases. His trial counsel filed a motion for discovery and inspection of evidence in all three cases. He was active in challenging prospective jurors for cause, and in making objections throughout the trial. Specifically, each time the State attempted to introduce into evidence an item seized from Appellant's van, he objected that the item was seized in violation of Appellant's constitutional rights.

Appellant points to three examples of what he claims was ineffective assistance: (1) allowing his prior conviction to be brought before the jury although the court had previously ruled that it was not final; (2) allowing the prosecutor to make improper arguments during the punishment phase; and (3) failing to object to his cross-examination by the State. The State explains that when Appellant was asked whether he had any final convictions, he answered "yes." Therefore, the defense strategy became making Appellant, who answered the question incorrectly and then changed his mind, a credible witness. Furthermore, a possible trial strategy could have been to let the prosecutor argue without unnecessary interruption because constant interruption makes Appellant look as if he has something to hide.

In light of the record as a whole, Appellant has failed to meet his burden of proving that his counsel's assistance was not reasonably effective. See Miller, 728 S.W.2d at 134. The tenth point is overruled. The judgment is affirmed.

BOB L. THOMAS

DO NOT PUBLISHChief Justice