Hollis v. State

• Decision Date: 16 February 2007
• Docket Number: No. 03-04-00550-CR.,03-04-00550-CR.
• Parties: Sergeant HOLLIS aka Sargent Hollis, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

219 S.W.3d 446

Sergeant HOLLIS aka Sargent Hollis, Appellant, v. The STATE of Texas, Appellee.

No. 03-04-00550-CR.

Court of Appeals of Texas, Austin.

February 16, 2007.

Gonzalo P. Rios, Jr., San Angelo, for appellant.

Allison Palmer, Asst. Dist. Atty., San Angelo, for appellee.

Before Chief Justice LAW, Justices PATTERSON and PURYEAR.

OPINION

W. KENNETH LAW, Chief Justice.

Appellant Sargent Hollis appeals his convictions for intentionally and knowingly manufacturing a controlled substance, methamphetamine, weighing between 4 and 200 grams including adulterants and dilutants (count I) and intentionally and knowingly possessing an immediate precursor, ephedrine or pseudoephedrine, with the intent to unlawfully manufacture methamphetamine (count II). See Tex. Health & Safety Code Ann. § 481.102(6) (West Supp.2006), § 481.112(a), (d) (West 2003). The court assessed punishment at fifteen years' confinement on count I and five years' confinement on count II, to run concurrently. Hollis contends in a single issue that his attorney provided ineffective assistance of counsel by failing to (1) file a motion to suppress evidence, (2) engage in meaningful voir dire, and (3) object to nine specific pieces of evidence or portions of testimony offered during the trial. We will affirm.

BACKGROUND

Around midnight on December 15, 2003, Trooper Jack McCrea was patrolling the San Angelo area with Corporal Bart Teeter. McCrea testified that, while driving "northbound on U.S. 67 at the Tom Green County and Runnels County line near the San Angelo feed yards," he and Teeter "smelled a strong odor of ether coming out of the southeast," which he considered to be unusual for that area at that time of night. McCrae described the odor as "real strong" and "distinct." As a result, they drove down the highway, turned around, "and came back to confirm that [ether] was what both of us did smell." They "kept circling until [they] pinpointed where it was coming from" and eventually determined that the odor was coming from the old Four Winds Dance Hall-a building that was no longer used for such commercial purposes.

McCrea explained that "ether is one of the main ingredients for extracting the ephedrine out of the pseudoephedrine tablets." Based on these observations and his experience, he "thought somebody was probably cooking methamphetamine at the time." McCrea therefore called a DPS narcotics officer, Vincent Luciano, to come to the scene. During the forty-five minutes that McCrea and Teeter were waiting for Luciano, they observed the building to make sure no one entered or exited and also did surveillance of the building.

When Luciano arrived, he confirmed the odor. The three officers then devised a plan to "knock on the door and ask if everything was okay." As they approached, the officers observed "a brown Jeep Cherokee with the hood up, parked facing the building, with the engine running, and different types of electrical cords coming from the battery or the motor-engine compartment." The Jeep was being used as a generator because there was no power in the building. The officers could also hear loud music inside.

Luciano testified that he knocked on the door and said "police." He identified Hollis in court as the man who answered the door. Luciano testified that Hollis "didn't give [the officers] any hassle" and let them inside. Hollis testified that he opened the door and "told them: Yeah, come right on in." Luciano testified that when Hollis opened the door, Luciano "was hit with a much stronger odor that was more indicative of the production of methamphetamine. Both the ether odor and the ammonia hit me at once." Luciano subsequently described what he saw as a "clandestine meth lab" — a "secret or hidden place where people illegally produce methamphetamine." Luciano had handled approximately 70 narcotics cases per year since 1998 and had focused on the investigation of meth labs since 2001.

The officers immediately conducted a "protective sweep" of the dance hall. McCrea testified that this "means walking around and making sure there's nobody loose or there's no weapons laying around or anything like that." He further explained that officer safety is a large concern when entering a meth lab because the chemicals used are dangerous and may explode and because the people involved with the production of methamphetamine are often dangerous. Luciano testified that Bobby Oxford and Sonny Robeson were discovered during the protective sweep in a small room to the left of the door that Hollis had answered.¹ Oxford and Robeson were detained in that room under McCrea's supervision.

McCrea and Luciano testified about various items that the officers saw in plain view during the sweep, including: a loaded .22 caliber rifle, "a gallon jar with some type of liquid in it," a glass "pickle jar" that was "filled with a liquid and solid substance" and had a "white powdery residue in the bottom of it," "a fire extinguisher that we believe contained anhydrous ammonia," "a plastic baggie with a white powder substance," some paper towels laying on a table that had "white residue consistent with the starchy-type out of the pills," "a scale," "some plastic tubing," and other "drug paraphernalia." According to McCrea, "there was stuff laying just everywhere." None of the items were seized at that point, except the rifle, which McCrea unloaded and placed behind the bar area for safety. Both McCrea and Luciano testified that the items observed in plain view were consistent with the components used to manufacture methamphetamine and that, based on their observations up to that point, they had probable cause to believe that Hollis, Oxford, and Robeson were manufacturing methamphetamine inside the dance hall.

Luciano explained that "at that point we realized we were going to need a search warrant," so they contacted a justice of the peace. Luciano typed up the warrant using the laptop computer in McCrea's vehicle, and the JP signed it when he arrived at the scene. Meanwhile, Hollis, Oxford, and Robeson were handcuffed, taken outside, and placed in police cars. Luciano explained that this was necessary because the chemical vapors in the building were so strong that they could harm the suspects.

After obtaining the warrant, the officers conducted a more extensive search. Luciano testified about what was discovered as a result: a large bottle of liquid and solvent, a yellow plastic bag containing pills, a tin container with three baggies of suspected methamphetamine, a small plastic bag of methamphetamine powder, a container of salt, camp fuel, starter fluid, Red Devil Lye, acetone, pipes, scales, plastic tubing, test tubes, empty baggies, gloves, matches, a tool box with jars and filters, batteries, cotton swabs, a pitcher, syringes, an air pump, a gas generator, and a rifle. The officers also discovered a burn pit in the back of the building containing partially destroyed evidence. Photographs of the scene depicting these items and the items previously observed in plain view were admitted into evidence. Luciano testified about the role each of these items plays in manufacturing methamphetamine. A DPS chemist, Dennis Hambrick, testified that the tests he conducted of several items tested positive for methamphetamine and ephedrine or pseudoephedrine in varying amounts.

Lucaino testified that, following the search, Hollis, Oxford, and Robeson were arrested and taken to the Tom Green County Jail, where they were interviewed. Photographs taken at the jail were admitted into evidence, including the suspects' mug shots and up-close pictures of their hands. Luciano explained that the "reason we photograph hands is, when you handle these chemicals . . . you start getting all kinds of discoloration and blisters and what-have-you from the extreme temperatures associated with and the caustic materials of producing methamphetamine." Hollis's and Robeson's hands appear discolored and blistered in the photos, and Luciano testified that he also recalled Oxford's hands having "significant discoloration." Photographs of Oxford and his inner arm were also admitted. Luciano testified that he believed Oxford to be Hollis's nephew and that the appearance of his arm indicated "intravenous drug use."

Luciano then testified about Hollis's interview and his resulting written statement. He testified that Hollis was read his Miranda rights and that the rights were also typed at the top of the page on which his statement was written. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Tex.Code Crim. Proc. Ann. art. 38.22 (West 2005). Hollis was given the option to write his own statement but declined, stating that he "didn't like to write" and would prefer that Luciano transcribe Hollis's oral statement. Luciano testified that he wrote down the words exactly as Hollis said them, then read them back verbatim, line-by-line. After Hollis agreed to the content, Luciano initialed the end of each line to ensure that "nobody else could add anything to it." Lieutenant John Waits witnessed the taking of Hollis's statement and confirmed Luciano's description of the process. Hollis, Luciano, and Waits signed the statement. Hollis's statement was read to the jury in full:

I used to use a needle. Every once in a while I smoke speed.² I knew what was going on out there when I'm there. I am not making speed. I like to smoke speed. I never took any anhydrous—I never took any anhydrous out there. I took pills out there so I don't have to pay out of my own pocket once in a while. I took the rap for Tony Carvella on some dope that wasn't mine.

Luciano further testified that, while in custody, Hollis stated that "I ain't going to be—I ain't going to be a snitch. I know what you want. You want Jimmy [Jackson]." Luciano testified that Jackson was leasing the property on which the old Four Winds Dance Hall was located and was in the process of purchasing the property;...