Jones v. State

• Decision Date: 20 April 2006
• Docket Number: No. 2-05-026-CR.,2-05-026-CR.
• Citation: 195 S.W.3d 279
• Parties: Rhonda Renee JONES, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

195 S.W.3d 279

Rhonda Renee JONES, Appellant, v. The STATE of Texas, State.

No. 2-05-026-CR.

Court of Appeals of Texas, Fort Worth.

April 20, 2006.

Rehearing Overruled May 25, 2006.

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James Rasmussen, Wichita Falls, for Appellant.

Barry L. Macha, Criminal District Atty., John W. Brasher and Maureen O'Brien, Asst. Criminal District Attys., Wichita Falls, for State.

Panel B: LIVINGSTON, GARDNER, and WALKER, JJ.

OPINION ON REHEARING

TERRIE LIVINGSTON, Justice.

I. Introduction

After reconsidering our prior opinion on appellant Rhonda Renee Jones's motion for rehearing, we deny the motion, but we withdraw our March 2, 2006 opinion and judgment and substitute the following in their place in order to clarify parts of our original opinion.

Appellant Rhonda Renee Jones appeals her conviction and sentence of twenty-five years' confinement and a $10,000 fine for possession of 400 or more grams of methamphetamine with intent to deliver. In her first point, appellant complains that the trial court erred by failing to instruct the jury that Marcus Benner was an accomplice as a matter of law. Appellant further argues that the error was egregious and reversible because the State could not prove the quantity of the methamphetamine without Benner's testimony. In appellant's second and third points, she contends that the evidence is legally and factually insufficient to show that she possessed 400 or more grams of methamphetamine with intent to deliver. We affirm.

II. Background Facts

On January 23, 2003, Deputy Marvin Eddy and Deputy George Goolsby, officers with the Wichita County Sheriff's Department, were dispatched to respond to a call after receiving a report that a suspicious vehicle was parked on Bohner Road, near Burkburnett, Texas, and that the car was emitting a chemical odor. When Deputies Eddy and Goolsby arrived at the scene at approximately 8:30 a.m., they saw two people and a dog sitting in a dark colored car parked in the roadway. It was later determined that appellant was the driver of the car and Benner was the passenger.

As the deputies got closer, a white substance was thrown from the passenger window, and they could smell a chemical odor typically associated with methamphetamine labs emanating from the car. After Deputy Eddy activated his patrol lights, appellant sped off and started going west on Bohner Road. Appellant then slowed down and pulled over as if she was going to stop. However, after Deputy Eddy put his patrol car in park and began to get out, appellant took off again and proceeded down the road. Deputy Eddy followed her. During the chase, several items, including coffee filters and plastic containers, were thrown from the passenger side window of appellant's car.

After appellant turned east on Thrift Road, her car began to fill with smoke. Benner then threw a container with "smoke . . . billowing out" out of the window. After noticing that a Department of Public Safety trooper was coming in the opposite direction, appellant pulled the car over, and appellant and Benner got out and were arrested for evading arrest.

During appellant's trial for possession of a controlled substance with intent to deliver and evading arrest, Benner testified for the State as part of his plea bargain agreement with the State.¹ Benner testified that appellant knowingly participated in making the methamphetamine. He stated that they were making the methamphetamine for their own personal use just before the deputies arrived.

Appellant was indicted for possession of methamphetamine with intent to deliver and evading arrest or detention using a vehicle. A jury found appellant guilty of both offenses and the trial court sentenced appellant to twenty-five years in TDCJ and a $10,000 fine for possession of a controlled substance with intent to deliver and two years in a state jail facility for evading arrest. Appellant is only appealing her conviction for the possession offense.

III. Legal and Factual Sufficiency

Because a finding of legal insufficiency results in an affirmative judgment in appellant's favor rather than vacation of the judgment against her, a successful legal insufficiency issue would provide somewhat greater relief to appellant. Nickerson v. State, 69 S.W.3d 661, 668 (Tex.App.-Waco 2002, pet. ref'd). Therefore, we will address appellant's second and third points first. In points two and three, appellant contends that the evidence is legally and factually insufficient to prove that she possessed with the intent to deliver a quantity of methamphetamine in an amount of 400 grams or more.

A. Standards of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App. 2005).

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim. App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) when the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment and, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. "This standard acknowledges that evidence of guilt can `preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id. In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for the fact finder's. Zuniga, 144 S.W.3d at 482.

A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

B. Applicable Facts

At trial, Benner testified that he and appellant were making methamphetamine, that both he and appellant bought the chemicals used in making the drug, and that appellant was going to use the drug. He stated that they were about three-fourths of the way through the process of making the methamphetamine when the sheriff's car pulled up behind them. Benner stated that the methamphetamine, which was in a liquid form, was in a clear glass container that was approximately eight inches tall and four or five inches in diameter. He testified that the glass was filled with liquid methamphetamine to within about two inches from the top. Benner stated that during the police chase, he poured the liquid methamphetamine into a bleach bottle² in an effort to destroy the evidence. He testified that the bleach was not used as part of the manufacturing process. He said that if the methamphetamine had "powdered out," it would have yielded seven to ten grams of methamphetamine.

Michelle O'Neal, a senior forensic chemist with the Tarrant County Medical Examiner's Office, testified that she received three bottles containing a liquid from the Wichita Falls Police Department (WFPD), and tested the liquid. She stated that the liquid was in two layers when she received it, but that the WFPD only asked her to identify the top layer of liquid. O'Neal weighed the contents of the bleach bottle and recorded that it weighed 2,375.8 grams. She also took a sample of the top layer of liquid and documented that it contained methamphetamine. O'Neal never attempted to identify the liquid on the bottom layer.

O'Neal testified that she took the dimensions of the glass container described by Benner and calculated that it would yield 1,234.6 grams of liquid methamphetamine if it was suspended in water and was six inches tall and four inches in diameter. Additionally, O'Neal stated that the liquid is no longer in two phases because the top layer, the methamphetamine, evaporated quickly and that only the bottom layer remains.³

Max Courtney, a laboratory director and owner of Forensic Consultant Service in Fort Worth, testified for the defense that he obtained a sample of the bleach container on August 19, 2004. He stated he went to the Wichita County District Attorney's Office and examined three bottles of liquid and took a combined sample of 383 grams. Courtney said that he was under the belief that all three samples were from the same container. He testified that he performed three different tests on the samples and identified the liquid in them as bleach. The liquid was only in one phase when Courtney received it because the liquid methamphetamine had evaporated before Courtney tested the bleach bottle contents. He further stated that he did not find any controlled substances, but did find two products, namely acetylated methamphetamine and N-formylmethamphetamine, in trace quantities that were consistent with oxidation products of methamphetamine.

Courtney said...