WILBERT LEE HESTAND, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed December 4, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01320-CR
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WILBERT LEE HESTAND, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 336th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 054250-336
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OPINION
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Richter
        Wilbert Lee Hestand, Jr. appeals his jury conviction for the manufacture of methamphetamine in an amount of four grams or more but less than 200 grams. In three points of error, Hestand complains of the trial court's denial of his right to compulsory process, the admission of an extraneous offense, and the legal and factual sufficiency of the evidence to support the conviction. Finding no merit to Hestand's complaints, we affirm the trial court's judgment.
Background
        On April 6, 2005, officers discovered what appeared to be a methamphetamine lab and methamphetamine in a bathroom closet in a garage apartment on property Hestand had listed on parole papers as his home. The 600-square foot apartment was accessible by ladder only and was next to a house occupied by Celia Lozano and her husband. Lozano's son, Jason Freeman, lived in the apartment. On the day the methamphetamine was found, Freeman was at his father's house where he had spent the previous two nights and Hestand and Lozano's sister, Debra Lynch, were at the apartment where they had stayed for two nights.
        At trial, Freeman testified he met Hestand through Lynch. According to Freeman, Lynch had been staying with Lozano but was looking for a place she and Hestand could stay together. Because he was staying at his father's house, taking care of his younger brothers while his father was out of town, Freeman gave Lynch and Hestand a key to the apartment and allowed them to stay there. Freeman testified that until he gave a key to Lynch and Hestand, only Lozano and he had access to the apartment. Freeman testified further he did not know the methamphetamine or the lab was in the closet until after Hestand was arrested. Lozano also was unaware of the items found in the closet.
        Texas Department of Public Safety officer Victor Patton testified he went to the property on April 6 to arrest Hestand for a parole violation.   See Footnote 1  Patton knocked on the door to the house and was greeted by Lozano. After explaining to her why he was there, Lozano directed him to the garage apartment. Patton and Sergeant James Murray, who was serving as back-up, climbed the ladder, knocked on the door, announced their presence, and asked Hestand to step out. When they got no response, they entered the apartment where they found Hestand and Lynch in bed waking up. Patton arrested Hestand while Murray conducted a “protective sweep” of the apartment to ensure nobody else was there and there were no weapons “in plain view.” Murray found the methamphetamine and what appeared to be a methamphetamine lab-bottles, chemical containers, red phosphorus, iodine crystals, isopropyl alcohol, plastic tubing and bottles with tubing, stained coffee filters, and “separating liquids”-when he opened the closet. According to Patton, until then, nothing in the apartment indicated any drug activity had occurred or that Hestand was involved with drugs. Hestand did not have any “track marks” and did not appear to be under the influence of drugs and there was no drug paraphernalia or unusual odors. Patton testified that once the closet door was opened, however, he noticed a strong odor associated with the production of methamphetamine.
        Sherman police corporal Jason Jeffcoat testified he was called to the apartment to “secure and retrieve the evidence.” Jeffcoat testified he smelled the odor as soon as he walked into the apartment and, based on the condition of the items in the closet, he believed the methamphetamine had already been “through synthesis” or “cooked” and was being “powdered out”-“separated” from oil. According to Jeffcoat, Hestand denied knowing about the methamphetamine and lab. Lynch originally denied knowing about the methamphetamine and lab also but later, after speaking with Hestand, voluntarily admitted they were hers. When asked how methamphetamine is made, however, Lynch was unable to answer. Jeffcoat testified he could not determine how long the methamphetamine had been cooked and that he did not find any belongings of Hestand in the apartment. Nonetheless, because Hestand had told his parole officer he was living there, Jeffcoat believed sufficient evidence existed for Hestand to be “charged” with manufacturing methamphetamine.
        Lynch testified she purchased most of the items found, including the methamphetamine,   See Footnote 2  and, because they were hers, had pleaded guilty to attempted manufacturing of methamphetamine and was currently in jail. Lynch explained she did not tell Jeffcoat how methamphetamine is made because she had “paid for the recipe” and “wasn't going to give it to [him].” According to Lynch, Hestand did not know about the methamphetamine or lab and had not seen the items because she had kept them in the trunk of her car. When asked how the items got into the apartment, Lynch testified she had not moved them and she did not know who had. Lynch admitted to using methamphetamine and testified, over objection, she had seen Hestand use methamphetamine once. Lynch also acknowledged she and Hestand had been together for a “couple of weeks,” Hestand was with her when she purchased many of the items found, and the two had lived out of her car for “awhile.”
        Hestand did not testify and did not call any witnesses, but presented through his opening and closing statements and cross-examination of witnesses, a theory that he was unaware of the methamphetamine and lab and his only connection to them was his presence in the apartment.
        The jury, authorized to convict Hestand as a principal or a party, returned a general verdict of guilty as charged and assessed punishment, enhanced, at sixty years confinement and a $5000 fine.
Sufficiency of the Evidence
        In his third point of error, Hestand asserts the evidence is legally and factually insufficient to support his conviction. In making this argument, Hestand maintains no physical evidence links him to the methamphetamine or lab. Additionally, relying on Goff v. State, 777 S.W.2d 418 (Tex. Crim. App. 1989), Hestand maintains “nothing eliminates reasonable inferences other than [his] guilt.” Because only circumstantial evidence supports his conviction and other reasonable inferences exist, Hestand maintains his conviction should be reversed. We disagree.
        We review a challenge to the legal sufficiency of the evidence to support a verdict of guilt by viewing the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Under this standard, the fact-finder is the exclusive judge of the witnesses' credibility and the weight given to the evidence, may draw reasonable inferences from basic to ultimate facts, and is entitled to resolve any conflicts in testimony and reject or accept any or all of the evidence presented by either side. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
        We review a challenge to the factual sufficiency of the evidence to support a conviction by viewing all the evidence under a neutral light and determining whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). In conducting this review, we may substitute our judgment for the fact-finder's on the question of witness credibility and weight of evidence determinations only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S.Ct. (2007). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Id.
        Based on the indictment in this case, to obtain a conviction, the State had to prove Hestand intentionally or knowingly manufactured, by chemical synthesis, methamphetamine in the amount of four grams or more 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. 2007). The State could establish this through circumstantial evidence and through evidence Hestand either acted on his own or, acting with intent to promote or assist Lynch with the manufacturing of methamphetamine, he solicited, encouraged, directed, aided, or attempted to aid Lynch. See Tex. Pen. Code Ann. §§ 7.01, 7.02(a)(2) (Vernon 1994); 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”).         In arguing no evidence links him to the methamphetamine or lab, Hestand notes he was “merely a guest in the apartment” and there was no noticeable odor associated with methamphetamine production when the officers first entered the apartment. Hestand also notes no fingerprints linked him to the lab and no other drug paraphernalia was found in the apartment. Hestand argues the only evidence linking him to the drugs “was his presence in the apartment, [Lynch's] lack of knowledge as to how the materials got from her car to the closet, and [Lynch's] inability to articulate the manufacturing process.” Hestand argues that while this circumstantial evidence may have created an inference that he moved the materials from the car to the closet and may have had “a greater knowledge as to the manufacturing process than [Lynch],” it did not eliminate a reasonable inference that Freeman or Lozano may have placed the items in the closet or that Lynch was “just holding the materials [until] she gained a better understanding of the process.” As the State points out, however, the use of the reasonable hypothesis test in the evaluation of the legal sufficiency of the evidence was abandoned sixteen years ago in Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (2000). In the analysis of the factual sufficiency of the evidence, the existence of alternative hypotheses raised by the record is considered but is not determinative. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999); see also Goodman v. State, 66 S.W.3d 283, 298 n.16 (Tex. Crim. App. 2001) (court never held old alternative reasonable hypothesis test must be satisfied for evidence to be factually sufficient).
        Viewing the evidence under the appropriate standard, we conclude that from the testimony showing that
 
*Hestand had listed the property where the methamphetamine and lab were found as his home address;
*Hestand was in bed in the apartment with Lynch when the methamphetamine and lab were found and had been there two nights;
 
*Hestand had been with Lynch when Lynch purchased the various items found in the lab;
*Hestand had lived in the car while the items were stored in the trunk;
*the only other two individuals who had access to the apartment were unaware of the items found in the closet; and
*the closet and, after the closet door was opened, the apartment contained a strong odor associated with the manufacture of methamphetamine
 
the jury could rationally infer and find beyond a reasonable doubt that Hestand, either acting on his own or as a party, manufactured methamphetamine. See East v. State, 722 S.W.2d 170, 171-72 (Tex. App.-Fort Worth 1986, pet. ref'd) (appellant's 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). Although Lynch testified Hestand did not know she had purchased the items and was unaware of the lab, the jury was free to disbelieve this testimony and we will not disturb that finding. Marshall, 210 S.W.3d at 625; Jones, 944 S.W.2d at 647. We overrule Hestand's third point of error.
        
Right to Compulsory Process
        In his first point, Hestand complains he was denied his right to compulsory process when the trial court denied his request to continue the trial to allow him an opportunity to interview Lynch. Relevant to this issue, the record reflects the prosecutor and Hestand requested Lynch be brought from the state jail facility in which she was confined to the Grayson County jail for Hestand's trial. The request was made twelve days before trial. The trial judge issued a bench warrant returnable the day before trial but for reasons not explained in the record, Lynch was not brought to the county jail by that date. On the day of trial, Hestand's counsel stated to the court that the day before he had twice gone to the county jail to visit with Lynch but she was not there. Hestand's counsel explained he needed to visit with Lynch before picking the jury to ensure her trial testimony would be consistent with her plea testimony because his trial strategy was based on Lynch's plea testimony that the items found in the closet were hers. Because Lynch was unavailable through no fault of Hestand, counsel sought a continuance. Noting Lynch would be available in the afternoon, the trial court denied Hestand's motion and the parties proceeded to jury selection. Hestand now argues the court's denial of his motion for continuance harmed him by “effectively restrict[ing] [his] ability to present proper voir dire questions related to [Lynch]” and was thus reversible error. We disagree.
        It is axiomatic that a defendant has a right to compulsory process, that is, a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986); Coleman v. State, 966 S.W.2d 525, 527 (Tex. Crim. App. 1998). However, the right to compulsory process is not an absolute right but is dependent upon the defendant's initiative and affirmative conduct. Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.-Fort Worth 2006, pet. ref'd). We review complaints concerning limitations on the right to compulsory process under an abuse of discretion standard. Drew v. State, 743 S.W.2d 207, 225 n.11 (Tex. Crim. App. 1987); Emenhiser, 196 S.W.3d at 921. Similarly, we review a trial court's decision to deny a motion for continuance for abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). We will conclude a trial court's limitation on the defendant's right to compulsory process and denial of a continuance to be reversible error only if the court abused its discretion and appellant shows he was harmed. Id.; Sanne v. State, 609 S.W.2d 762, 776 (Tex. Crim. App. 1980); Emenhiser, 196 S.W.3d at 922.         We need not determine whether the trial court abused its discretion in denying Hestand's motion for continuance because we conclude the error, if any, was harmless. As stated, Lynch was available the afternoon of trial. The following day, prior to the State continuing its case-in-chief, Hestand's counsel informed the court he had visited with Lynch the night before and the only “possible problem” he identified was that she felt threatened by the prosecutor and might want counsel to represent her. Counsel made no reference to any concerns that she would change her testimony at trial and did not complain that had he visited with Lynch prior to jury selection, his strategy on voir dire would have been different. Hestand's complaint is without merit. We overrule Hestand's first point of error.
Admission of Extraneous Offense
        In his second point of error, Hestand complains the trial court erred in allowing Lynch to testify, over his Texas Rule of Evidence 404(b) objection, that she had seen Hestand use methamphetamine once. Under rule of evidence 404(b), evidence of extraneous offenses or prior wrongful acts is inadmissible to show a person's character but is admissible if it tends to establish some elemental or evidentiary fact or rebut some defensive theory. Tex. R Evid. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004). Hestand maintains Lynch's testimony was admitted to show he “was a criminal generally, a characterization already present by the testimony from the arresting officers that they were at the apartment in the first place to arrest [him] for alleged violations of his parole,” and should have thus been excluded. In response, the State argues this evidence proved Hestand intentionally and knowingly manufactured the methamphetamine and was thus properly admitted. We agree with the State.
        We review rulings on the admissibility of evidence under an abuse of discretion standard. Robbins v. State, 88 S.W.3d 256, 259-60 (Tex. Crim. App. 2002). 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).
        Viewing the record, we conclude the trial court did not abuse its discretion in admitting Lynch's testimony. As stated, to establish Hestand's guilt, the State was required to prove intent or knowledge, an element Hestand disputed through his opening and closing statements and cross- examination of the witnesses. See Tex. Health & Safety Code Ann. § 481.112(a). The record reflects, for example, that Hestand established that no odor was detected and no other evidence existed of any drug activity until the closet was opened. Hestand also established no other drug paraphernalia was found and nothing indicated he was a drug user. Lynch's testimony that she had seen Hestand use methamphetamine was circumstantial evidence that Hestand knew of the lab and was admissible to rebut the defensive theory that he did not have the requisite intent or knowledge. See Wingfield v. State, 197 S.W.3d 922, 925 (Tex. App.-Dallas 2006, no pet.) (evidence of appellant's prior drug use admissible in possession of marijuana case to show intentional and knowing possession and rebut defensive theory of lack of knowledge or intent). The record reflects the jury was properly instructed regarding the limited purpose of the admission of this evidence and nothing in the record reflects the jury did not follow the instruction. We overrule Hestand's second point of error.
        Having overruled Hestand's points of error, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061320F.U05
        
 
Footnote 1          Patton did not explain what the violation was.
Footnote 2          Lynch also testified a few of the items found were not hers.