Pinkston v. State, 2-83-223-CR

• Decision Date: 13 December 1984
• Docket Number: No. 2-83-223-CR,2-83-223-CR
• Citation: 681 S.W.2d 893
• Parties: Leon Deryl PINKSTON, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 893

681 S.W.2d 893

Leon Deryl PINKSTON, Appellant, v. The STATE of Texas, State.

No. 2-83-223-CR.

Court of Appeals of Texas Fort Worth.

Dec. 13, 1984.

Hartley, Eakman, Bodenhamer & Tanner, and James R. Tanner and Glen E. Eakman, Fort Worth, for appellant.

Mac Smith, Dist. Atty., and Dan Carney, Asst. Dist. Atty., Weatherford, for the State.

FENDER, C.J., and ASHWORTH and BURDOCK, JJ.

OPINION

FENDER, Chief Justice.

Leon Deryl Pinkston, appellant, was convicted by a jury of the offense of unlawful manufacture of a controlled substance, to wit: amphetamine in an amount greater than 400 grams. Appellant elected to have the court assess punishment. Pursuant to the trial court's finding that appellant had two prior felony convictions as alleged in the enhancement paragraphs of the indictment, the court assessed punishment at life imprisonment.

We affirm.

On appeal, appellant raises nine grounds of error in which he contends that (1) evidence of extraneous offenses were improperly admitted at trial; (2) the search warrant and consequent search are invalid; (3) the evidence is insufficient to support the conviction; (4) numerous weapons seized in the search were improperly displayed before the jury; (5) the enhancement paragraphs were not properly proved up, and (6) the Controlled Substances Act, as amended, is unconstitutional. Because appellant challenges the sufficiency of the evidence, a rendition of the facts is necessary.

In November of 1982 an on-going investigation into the illegal manufacture of amphetamine by appellant focused on Parker County, Texas. This investigation was conducted by Sgt. Tom Martin of the Lubbock Police Department assigned to the United States Department of Justice Drug Enforcement Administration Narcotics Task Force in cooperation with investigators and officers of various federal, state, and local law enforcement agencies.

Sgt. Martin and other law enforcement officers arrived in Parker County from Lubbock on December 3, 1982 and established surveillance on appellant's residence, a ranch comprised of approximately 52 heavily wooded acres, located near Millsap. At 7:25 a.m. on the morning of December 5, 1982, a search warrant was executed at the residence with three main areas targeted: a house, a barn, and a mobile home.

The enforcement officers executing the search warrant were divided into three search teams, one team for each building. The barn was located approximately 100 yards from the house and the trailer was located approximately 100 yards from the barn, and approximately 200 yards from the house.

An operating amphetamine laboratory was found in the mobile home along with various beakers, flasks, a large freezer-size bag of amphetamine white powder, numerous bottles and cans of chemicals and various items of laboratory equipment. Arrested in the trailer were Erman Nathan Bullard and a sixteen year old female. Personal items of Bullard and the young female were also found in the trailer.

The appellant, and his wife, Lori Wisdom Pinkston, were arrested in the bedroom of the house where they were asleep. Seven other people were arrested in living room area of the house. Among the items seized in the search of the house were numerous plastic bags containing amphetamine, two plastic bags containing marihuana, four syringes containing a clear liquid, a military amunition box and thirty-seven guns. At the time of his arrest, appellant was in possession of several handwritten notes which included a recipe for making amphetamine, some phone numbers including that of a chemical laboratory supply company in Dallas and the address of a chemical laboratory supply company in Houston.

In his third ground, appellant contends that the evidence is insufficient to connect him to the illegal laboratory because the evidence established that Lori Wisdom Pinkston, not appellant, holds legal title to the property on which the search was conducted and on which appellant was arrested; and because the evidence failed to show appellant knew of the existence of the illegal laboratory on the property. We find no merit to appellant's argument.

In reviewing the sufficiency of the evidence in either a direct or circumstantial evidence case, we must view the evidence in the light most favorable to the jury's verdict and consider whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984); Houston v. State, 663, S.W.2d 455, 456 (Tex.Crim.App.1984).

We have carefully reviewed the evidence and find it sufficient to connect appellant to the illegal manufacture of the controlled substance. The evidence clearly establishes the existence of laboratory apparatus on appellant's property which was in the process of manufacturing amphetamine. It is irrelevant that legal title to the property is in the name of Lori Wisdom Pinkston, appellant's wife. The evidence establishes that appellant resides on the property with his wife as evidenced by the following facts: (1) appellant, himself, at the time of his arrest, referred to the ranch as his place; (2) appellant's personal papers were found in the desk in the living area; (3) a picture of appellant and his wife was displayed in the den; (4) appellant was found in the bedroom in bed with his wife at the time of the search, and (5) numerous references were made throughout the trial to the ranch as being Pinkston's place without objection. Moreover, the following facts tend to show that appellant was involved in the illegal manufacture of the controlled substance: (1) the illegal laboratory was operating on appellant's property less than 200 yards from his residence; (2) large quantities of amphetamine were found inside appellant's residence; i.e. a locked military ammunition box found behind the desk contained numerous bags of amphetamine and when opened emitted a strong ether smell, an Igloo ice chest found in the living area contained nine clear plastic bags of amphetamine; a clear plastic bag of amphetamine was found in the upper left hand drawer of appellant's desk; and (3) appellant had on his person in his wallet at the time of his arrest handwritten notes which included, inter alia, a chemical formula for manufacturing amphetamine and the addresses of two chemical laboratory supply companies.

We find the circumstantial evidence sufficient to support a conviction for manufacturing amphetamine. Appellant's third ground is overruled.

In his first ground, appellant contends that the trial court erred in overruling his motion for mistrial following the improper admission of evidence of extraneous offenses. Specifically, appellant complains of certain testimony of Tom Martin, a police officer employed by the City of Lubbock, Texas, who, at the time of trial, had been assigned to the United States Department of Justice Drug Enforcement Administration Narcotics Task Force in Lubbock for approximately four years. He testified that in January of 1982 he became involved in an extensive investigation into appellant's activities and that federal, state and local law enforcement agencies were involved in the extensive investigation. The State's attorney attempted to elicit testimony in regard to the extensiveness of the investigation. Appellant complains of the following:

BY MR. MAC SMITH:

Q. Prior to moving into Parker County, Texas where was the investigation taking place?

A. In Lubbock, Texas

Q. Prior to that, where was the investigation taking place:

MR. EAKMAN: Your honor, we're going to object to this investigation taking place somewhere else unless it's connected up with Leon Pinkston in Parker County.

THE COURT: Couch your question--

MR. EAKMAN: Completely outside what we're trying here.

THE COURT: Just couch your questions in the terms of the investigation of Leon Pinkston.

MR. MAC SMITH: Okay, Your Honor, thank you.

BY MR. MAC SMITH:

Q. That's what I was referring to, but let me state it very specifically. Involving the investigation of Leon Pinkston for illegally manufacturing drugs, before it focused on Millsap, Parker County, Texas, where did the investigation involving Leon Pinkston focus in on:

A. Focused in a--in Fort Worth and Tarrant County, Texas.

Q. Okay. Before that, where did the investigation involving Leon Pinkston and his illegal drug activities--where did that investigation focus in before that?

A. In Paris, Texas.

Q. Before that, where did it focus in on Leon Pinkston concerning his illegal drug activities?

A. I'm not aware of where before--

MR. EAKMAN: Your Honor, we're going to object to him saying an investigation. He's trying to give an implication to the jury that they've got some kind of case in these other counties which he knows good and well he's in bad faith. He hasn't filed one of these cases.

THE COURT: Sustain the objection.

MR. EAKMAN: We'll ask the Court to instruct the jury not to consider it whatsoever. It's an extraneous offense.

THE COURT: Jury is so instructed.

MR. EAKMAN: Ask the Court for a mistrial.

THE COURT: Denied.

It is well settled that an accused is entitled to be tried on the accusation made in the State's pleading and not on some collateral crime or for being a criminal generally. Smith v. State, 646 S.W.2d 452, 455 (Tex.Crim.App.1983). Accordingly, it has been held that proof of prior specific acts of misconduct, similar happenings or extraneous offenses committed by the accused is not probative of the contested material issues in the case and is inadmissible. Elkins v. State, 647 S.W.2d 663, 665 (Tex.Crim.App.1983); Davis v. State, 645 S.W.2d 288, 293 (Tex.Crim.App.1983). However, just as is the case in many instances, this general rule is subject to exception, and evidence of extraneous offenses committed by the defendant is admissible as res gestae or to prove identity, intent or knowledge, state of mind, motive, scheme or plan, or to refute a defensive...