Tommy Wayne Jackson v. The State of Texas--Appeal from 2nd District Court of Cherokee County

NO. 12-03-00145-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TOMMY WAYNE JACKSON, APPEAL FROM THE SECOND

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Tommy Wayne Jackson ( Appellant ) appeals his conviction for manufacture of a controlled substance, methamphetamine. In one issue, Appellant contends that the evidence was insufficient to convict him of manufacturing methamphetamine. We affirm.

Background

On June 11, 2001, pursuant to a valid search warrant, the duplex apartment at number 11 Manor Loop Drive, Wells, Texas (hereinafter the apartment ) was searched by law enforcement. Sergeant Shelby Green ( Green ) of the Anderson County Sheriff s Department, while assigned to the Dogwood Trails Narcotic Task Force, led the search of the apartment. Appellant was the sole occupant of the apartment at the time of the two-hour search beginning at 5:40 p.m. During the search, the officers found a coffee filter containing 1.23 grams of methamphetamine in a bedroom where Appellant s wallet and clothes were located. In the wallet, along with Appellant s driver s license and social security card, the officers found a receipt from Industrial Chemical and Scientific, Inc. in Houston for the purchase of red phosphorus three days earlier. Red phosphorus is a precursor chemical in the manufacture of methamphetamine.

Also found in the wallet was a receipt from O Reilly Auto Parts for the purchase of acetone, which is used to manufacture methamphetamine. Additionally, the wallet contained receipts for the purchase of pseudoephedrine from H.E.B. and three receipts from Wal-Mart for various cold medications. All of these items are important ingredients in the making of methamphetamine. All of the receipts were dated near June 11, 2001.

In the kitchen of the apartment, the officers found a clear hose with a drinking straw taped to one end. Tubing is important throughout the manufacturing of methamphetamine. Also, red devil lye, which is used to cook the methamphetamine, was found in the kitchen. Further, the officers found a heating mantle and a butane torch, which are commonly used to heat methamphetamine. Additionally, a number of coffee filters, which are used in the methamphetamine manufacturing process, were found in the kitchen. The officers found narcotics paraphernalia used to ingest methamphetamine, including a pipe shaped in the form of a lightbulb.

Appellant was indicted for both possession of methamphetamine (between 1 and 4 grams) and the manufacture of methamphetamine. After the jury found him guilty on both counts, he was sentenced to ten years of imprisonment for possession of methamphetamine and thirty years for the manufacture of methamphetamine. Appellant has not contested his conviction for possession of methamphetamine and therefore it is not a part of this appeal. However, Appellant timely filed an appeal of his conviction for manufacture of methamphetamine.

Evidentiary Sufficiency

In his sole issue, Appellant argues that the evidence is insufficient to convict him of the manufacture of methamphetamine. The State disagrees and contends there is sufficient affirmative evidence to allow a rational jury to determine that Appellant was guilty of the offense.

Standard of Review

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, no pet.) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2787-88, 61 L. Ed. 2d 560 (1979)). The standard of review is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). The evidence is viewed in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour, 8 S.W.3d at 671. The conviction will be sustained unless it is found to be irrational or unsupported by more than a mere modicum of the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the sole judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury s domain. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).

If the reviewing court determines that the evidence is legally sufficient to support the verdict, the court then proceeds with a review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In reviewing the factual sufficiency of the evidence, a court examines all the evidence without the prism of in the light most favorable to the prosecution. . . . [and] sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 134. The court determines whether a neutral review of all the evidence, both for and against the verdict, establishes that the proof of guilt is so manifestly weak as to undermine faith in the jury s resolution, or the proof of guilt, although sufficient if taken alone, is greatly offset by conflicting proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

The reviewing court should exercise proper deference to the fact finder s conclusions, and should avoid substituting its judgment for that of the fact finder absent facts which establish that the verdict is wrong or manifestly unjust, or against the great weight and preponderance of the available evidence. Id. at 7. Any examination of the evidence should not substantially infringe upon the fact finder s role as the exclusive judge of the weight and credibility given to witness testimony. Id.; Clewis, 922 S.W.2d at 133. A wrong or unjust verdict is one that is manifestly unjust, or shocks the conscience, or clearly demonstrates bias. Santellan v. State, 939 S.W.2d 155, 165 (Tex. Crim. App. 1997). The reviewing court examines all of the evidence in the record pertaining to the factual sufficiency challenge, not just evidence confirming the verdict. Id. at 164. Where supported by the record, a reviewing court defers to a jury s determination on any conflicting evidence that depends upon an evaluation of the demeanor and credibility of the witnesses due to the jury s opportunity to observe that testimony, as opposed to a reviewing court s limitation to the cold transcript of the witnesses testimony. Johnson, 23 S.W.3d at 8; Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d).

In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The correct charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.

Elements of the Offense

Methamphetamine is a controlled substance. See Tex. Health & Safety Code Ann. 481.115(e) (Vernon 2003). The Texas Health and Safety Code provides that Manufacture

means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance other than marihuana, directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes the packaging or repackaging of the substance or labeling or relabeling of its container.

Tex. Health & Safety Code Ann. 481.002(25) (Vernon Supp. 2004). Evidence that shows any of the procedures listed in this section is sufficient to support a conviction for the manufacture of a controlled substance. Green v. State, 930 S.W.2d 655, 657 (Tex. App. Fort Worth 1996, pet. ref d). Circumstances tending to prove guilt, when combined with other facts, are sufficient to show that the accused was a participant in the manufacture of methamphetamine. See id.

Analysis

Appellant conceded that he had purchased all of the items shown on the receipts in his wallet and used in combination to manufacture methamphetamine. He further testified that he had purchased the red phosphorus on a trip to Houston with Jackie Redd ( Redd ), who had driven him there. He testified that Redd was a known methamphetamine cook. He further testified that he, Thomas Ray Jackson, who is his son, and Redd had hidden these ingredients in the woods near his mother s place in Angelina County. Redd added testimony that the three of them had gone into the woods carrying a cooler packed with these ingredients to make a batch of methamphetamine early on the morning of June 11. He stated that they had been spooked by possibly being discovered so they hid the cooler around 4:00 a.m. rather than going forward with the manufacturing process.

Appellant testified that he was a user of methamphetamine, but that he did not actually cook it. He testified that he did obtain items for Redd and his girlfriend, Kathy Allen, also a methamphetamine cook. He testified that he would supply both of them raw materials and that he would then receive a finished product from them. Redd testified that Appellant directed him in the cooking of methamphetamine. Redd further stated that everything he had learned about cooking methamphetamine, he had learned from Appellant. These circumstances tend to prove that Appellant was involved in the preparation of the manufacture of methamphetamine, whether or not he actually did the cooking. Viewing the evidence in the light most favorable to the jury s verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Appellant was involved in the of the manufacture of methamphetamine.

Having determined that the evidence is legally sufficient to support the verdict, we address factual sufficiency. We must conduct a neutral review of all of the evidence in our evaluation of factual sufficiency. Johnson, 23 S.W.3d at 11. In conducting our review, we note that Appellant stated that he was not in sole possession of the apartment where he was found with the receipts for the ingredients used to cook methamphetamine and the other paraphernalia used in its manufacture and use. In fact, Appellant s brother, David Jones, actually rented the apartment in his name. Further, Appellant testified that a Zachary Dover, also known as Zachary Shoemaker, had access to the apartment. He further contends that there was nothing showing that methamphetamine was actually cooked from the ingredients which he had purchased. This evidence is favorable to Appellant. However, in reviewing the entire record, both for and against the jury s verdict, we do not find that proof of Appellant s guilt is so manifestly weak as to undermine faith in the jury s resolution, or that the proof of guilt, although sufficient if taken alone, is greatly offset by conflicting proof.

Further, Appellant contends that his case is similar to the cases of Chapin v. State, 671 S.W.2d 608 (Tex. App. Houston [1st Dist.] 1984, no pet.) and Berryhill v. State, 630 S.W.2d 812 (Tex. App. Houston [1st Dist.] 1982, no pet.) where the court found that the evidence was insufficient to support a conviction for the manufacture of methamphetamine. We have carefully reviewed both of those cases and find them distinguishable from the facts in this case. In Chapin there was no specific proof which connected the appellant to any of the paraphernalia or chemicals used in the manufacture of methamphetamine. Chapin, 671 S.W.2d at 611. In the case before us, Appellant conceded that he had purchased all of the items which were to be used in cooking methamphetamine. In Berryhill, there was nothing to show that the appellant was aiding or encouraging the manufacture of methamphetamine. Berryhill, 630 S.W.2d at 814. That is distinguishable from this case as the evidence clearly showed that Appellant was both aiding and encouraging the manufacture of methamphetamine which he would eventually use. Appellant s sole issue is overruled.

Conclusion

Based upon our review of the record, we conclude that the evidence is both legally and factually sufficient to support the jury s verdict that Appellant was guilty of manufacture of a controlled substance, methamphetamine. Accordingly, the judgment of the trial court is affirmed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 2, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(DO NOT PUBLISH)