Johnny Edward Burns v. State of Texas--Appeal from 29th District Court of Palo Pinto County

Opinion filed October 18, 2007

In The

Eleventh Court of Appeals

__________

 No. 11-05-00394-CR

__________

JOHNNY EDWARD BURNS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 12715

  O P I N I O N

Johnny Edward Burns appeals his conviction by a jury of the offense of manufacture of a controlled substance, methamphetamine, in an amount over 400 grams. The trial court assessed his punishment at fifty years in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine. In a single issue on appeal, Burns asserts that the evidence is legally insufficient to support his conviction. We affirm.

In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines 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).

Randy Wright, a Mineral Wells police detective, testified that on August 1, 2004, while on patrol early in the morning, he received an anonymous tip about a possible meth lab. He said officers went out to conduct a Aknock and talk,@ meaning that they would knock on the door to gather information. He indicated that he went to the rear of the house to cover the back door. He identified Burns as a subject he pursued and captured after he heard running and the back door flew open. He stated that Burns continued to run after he had announced that he was a police officer. He identified tubing he recovered from Burns=s rear pocket when he searched Burns following his arrest. He acknowledged that it was on the ground after he wrestled Burns down. He also identified two camera-type lithium batteries that he believed were also in Burns=s rear pocket.

Detective Wright testified that, as he approached the residence, he noticed a strong odor of anhydrous ammonia. He identified anhydrous ammonia as a chemical used to manufacture methamphetamine. He indicated that officers received consent to search the residence. He said that, based on his experience, the chemicals, powdery substances, and cooler that were discovered in the residence were used to manufacture methamphetamine.

On cross-examination, Detective Wright acknowledged that it was dark when he first encountered Burns and that he could not tell what Burns was doing other than that he had heard the door. He confirmed the fact that he recovered the tubing from Burns=s rear pocket. He acknowledged that he did not know whether the tubing and lithium batteries he found on Burns=s person were used or intended to be used in the manufacture of methamphetamine. He did indicate that lithium batteries, after being broken open, were used in making methamphetamine and that in his experience it is unusual for someone to have a battery in his or her pocket. Detective Wright acknowledged that Burns had no precursors for the manufacture of methamphetamine on his person. He indicated, however, that many of those items were found in the residence from which Burns had fled. He acknowledged that it would have been possible for Burns to have been standing at the door or just beginning to enter rather than having fled the residence but said that if someone were showing up they would not slam the back door.

John Waight, a narcotics investigator with the Texas Department of Public Safety, testified that he arrived at the scene of the residence on the occasion in question and detected the strong odor of ammonia in the air in the area of the residence. He said that inside the residence he found what he expected to see in the operation of a meth lab. Burns stipulated that the State had sufficient evidence to demonstrate that there was a methamphetamine cook or that the manufacture of methamphetamine was going on in that residence. Investigator Waight identified all the items found in the residence and indicated how they related to the manufacture of methamphetamine.

Investigator Waight testified that a lithium battery such as those found on Burns was the kind of battery that could be used in the manufacturing process of methamphetamine if the lithium were removed. He acknowledged that no fingerprints or other items relating to Burns were found inside the residence.

William L. Todsen, a forensic scientist with the Texas Department of Public Safety Field Crime Laboratory in Abilene, testified that he was able to determine that certain substances found in the residence contained methamphetamine and weighed over 400 grams. We hold that the evidence is legally sufficient because a rational jury could have concluded beyond a reasonable doubt that methamphetamine over 400 grams was being manufactured in the residence and that Burns was participating in that process.

Relying on Moore v. State, 640 S.W.2d 300, 302 (Tex. Crim. App. 1982), Burns suggests that the evidence is insufficient because it is based on circumstantial evidence that does not exclude every other reasonable hypothesis except that of the guilt of the defendant. The analytical construct relied upon by Burns was abandoned in Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled in part on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). Consequently, to be legally sufficient, the evidence need not exclude all reasonable alternative hypotheses. Torres v. State, 141 S.W.3d 645, 659 (Tex. App.CEl Paso 2004, pet. ref=d). We overrule Burns=s sole issue on appeal.

The judgment is affirmed.

PER CURIAM

October 18, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.