Scott v. State
| Decision Date | 15 November 2007 |
| Docket Number | No. 07-06-0163-CR.,07-06-0163-CR. |
| Citation | 253 S.W.3d 736 |
| Parties | George W. SCOTT, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Paul E. Mansur, Denver City, for Appellant.
Kollin Shadle, Matthew D. Powell, Amanda Say, Sunshine Stanek, Criminal District Attorney's Office, Lubbock, for Appellee.
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant George W. Scott appeals his conviction by a jury of the offense of possession of anhydrous ammonia with the intent to manufacture methamphetamine and his sentence of fifteen years confinement. We will affirm.
On October 8, 2004, Trooper Jerry Johnson of the Texas Department of Public Safety stopped a 1982 Chevrolet pickup in Lubbock County driven by Kimberly Berryhill, because he suspected a possible DWI violation. Approaching the vehicle, he first spoke with Berryhill. Johnson determined that she was not intoxicated but her nervous behavior raised his suspicion about other possible criminal conduct. Johnson asked Berryhill for consent to search the pickup. At this point, Johnson encountered appellant, who was the only other occupant of the pickup.
Johnson testified that when he began searching the passenger side of the vehicle he smelled an odor that he recognized as that of ammonia. Looking for the ammonia, he then searched the pickup bed, including a mounted toolbox located immediately behind the pickup cab. According to Johnson, "a cloud of fumes" came from the toolbox when he lifted its lid. Holding his breath he looked into the toolbox and observed what he described as a propane tank with a brass fitting connected to a plastic tube. Johnson stated that he thought the apparatus was "consistent with when they extract the anhydrous out of tanks." He opined the tank was leaking because oxidation of the brass valve causes a change of color.
Because of the apparent leak in the tank, Johnson contacted DPS Narcotics Services to collect the tank. Tommy Salmon, a DPS narcotics officer, secured the tank. He testified it was not an approved tank for the storage or transportation of anhydrous ammonia. The tank was field tested with a Drager pump system, which is used to detect the presence of ammonia. The tank tested positive for ammonia. Appellant and Berryhill were arrested. In the course of trial testimony, DPS chemist Scott Williams opined the tank contained anhydrous ammonia.
At trial, Johnson testified that the license plate on the pickup at the time of the stop matched a 1979 Chevrolet Camero. Johnson had difficulty locating the vehicle identification number because the door post sticker and dash plate were missing. He finally located the number on a sticker in the glove box. A DPS records check revealed the pickup was registered to Doyle Russell. When contacted by DPS, Russell reported he sold the vehicle to a used car dealership. There was evidence that the vehicle then passed to the hands of appellant's father, George Scott, Sr. Evidence also showed that appellant lived with his father at an address in Lubbock.
Jimmy Lee Hale, a friend of appellant, testified for appellant. He said he purchased the pickup as a "parts truck" and last saw it in August 2004 before he began a term of incarceration in a county jail. Hale was still in jail when appellant and Berryhill were arrested. According to Hale, during a jail visit by his ex-wife, he instructed her to have appellant sell the pickup and place the proceeds in his inmate trust account. Hale acknowledged the license plate on the pickup was from a Camero he owned. He had no explanation for the transfer. Hale said he used the address of Scott's father for receipt of mail but resided elsewhere.
Appellant was charged by indictment with the knowing and intentional possession of anhydrous ammonia with the intent to manufacture methamphetamine, in violation of section 481.124 of the Texas Controlled Substances Act. Tex. Health & Safety Code Ann. § 481.124 (Vernon 2003).1 A jury convicted appellant of the indicted offense and this appeal followed.
Through six issues, appellant contends the trial court erred by permitting the State to amend the indictment at trial over his objection; the court committed charge error resulting in egregious harm to appellant; and the evidence he intentionally and knowingly possessed anhydrous ammonia with intent to manufacture methamphetamine was legally and factually insufficient to support his conviction.
Appellant's first and second issues assign error to what he describes as the trial court's permitting the State to amend the indictment to delete the essential mental states of "intentionally" and "knowingly." By his first issue, appellant contends the amendment to the indictment contravened article 28.10 of the Code of Criminal Procedure.2 By his second issue, he argues the amendment effectively reduced the State's burden to prove beyond a reasonable doubt every essential element of the offense, in violation of his due process3 rights and of section 2.01 of the Penal Code.4 Because we disagree with appellant's characterization of the trial court's action as an amendment of the indictment, we overrule the issues.
As noted, appellant was charged with and convicted of the second-degree felony offense of possession of anhydrous ammonia with intent to manufacture a controlled substance in violation of section 481.124(a). As relevant to this case, under that statute, a person commits an offense if, with intent to unlawfully manufacture a controlled substance, the person possesses or transports anhydrous ammonia. See section 481.124(a).
Appellant's indictment read as follows:
In Lubbock County, Texas, GEORGE SCOTT, hereinafter styled the Defendant, heretofore on or about the 8th day of October, A.D.2004, did intentionally and knowingly possess anhydrous ammonia with intent to unlawfully manufacture a controlled substance, to-wit: Methamphetamine; AGAINST THE PEACE AND DIGNITY OF THE STATE. (emphasis added).
On the second day of trial, during the State's case, the State asked to "abandon" the indictment's allegations of "intentionally and knowingly" as they pertained to the element of possession. The State argued the allegations were not required by the statute, but were mere surplusage. The State concluded by asking that the words "intentionally and knowingly" not be put in the court's charge to the jury. The defense objected, contending the language was not surplusage. Stating its opinion that "intent is alleged with regard to possession with intent to unlawfully manufacture," the court granted the "request to delete" the words.
When the court's charge was presented to the jury, the application paragraph read, in relevant part, as follows:
Now bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about October 8, 2004, in Lubbock County, Texas, the defendant, GEORGE SCOTT, ..., did then and there possess anhydrous ammonia with intent to unlawfully manufacture a controlled substance, to-wit: Methamphetamine, then you will find the defendant guilty of the offense of possession of certain chemicals with intent to manufacture a controlled substance, namely, Methamphetamine;....
The record does not reflect the indictment was altered. Assuming the State's request amounted to a motion to amend the indictment, neither such a motion by the State, nor the trial court's granting of the motion, constitute amendment of an indictment. Ward v. State, 829 S.W.2d 787, 793 (Tex.Crim.App.1992), overruled in part, Riney v. State, 28 S.W.3d 561, 566 (Tex.Crim.App.2000) (). An amendment is effectuated either by the physical alteration of the original indictment itself, or by the incorporation into the record of a new document to serve as the "official" indictment. Ward, 829 S.W.2d at 793; Riney, 28 S.W.3d at 565-66. Because the indictment in this case was never physically altered, nor was an altered indictment substituted, there was no amendment and the original unmodified indictment remained in full force and effect. See Ward, 829 S.W.2d at 795.
We next turn to appellant's issues five and six, asserting jury charge error. By his fifth issue, appellant contends the court erred by omitting from the charge language requiring the jury to find he intentionally and knowingly possessed anhydrous ammonia, and by his sixth issue, argues the court's charge impermissibly converted the offense into a strict liability crime while shifting to him the burden to prove he lacked intent to manufacture methamphetamine. Because of the factual interrelationship of all appellant's issues, we necessarily consider here some of the arguments appellant made in support of his first two issues.
Appellant argues section 481.124(a) requires proof that his possession of anhydrous ammonia was accompanied by a culpable mental state. The State responds that the culpable mental state required by the statute's express terms is the intent to manufacture methamphetamine. From that statutory language, it argues no additional mental state need be shown with respect to the defendant's possession.
The State further argues that a knowing mental state necessarily is encompassed within the intent to manufacture methamphetamine because it is not possible for a defendant to possess an ingredient of methamphetamine unknowingly yet possess it with the intent to manufacture the controlled substance. The difficulty with this position is section 481.124(b)(1) permits the jury to presume the defendant had the intent to manufacture the controlled substance if it finds he possessed anhydrous ammonia in a container not designed or...
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