Wilson v. State
| Decision Date | 01 March 2012 |
| Docket Number | NO. 02-10-00439-CR,02-10-00439-CR |
| Parties | JOSEPH EDWIN WILSON APPELLANT v. THE STATE OF TEXAS STATE |
| Court | Texas Court of Appeals |
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
Introduction
In five points, Appellant Joseph Edwin Wilson appeals his conviction and sentence for possession of anhydrous ammonia with intent to manufacture a controlled substance. In points one and two, he contests the sufficiency of the evidence; in point three, he complains about an instruction included in the court's charge; in point four, he asserts that his counsel was ineffective; and in point five,he claims that there exists a "fatal variance" between the evidence presented at trial and the enhancement allegation to which he pled true. We affirm.
Background Facts and Procedural History
A search warrant executed at a Wichita County house where Appellant and a companion were roused one morning netted materials commonly used in the illicit production, delivery, and consumption of methamphetamine. Among the seized materials was an aqueous solution officers extracted from a plastic water cooler in a shed behind the house. A sample of the solution was sent to the Department of Public Safety laboratory in Abilene where chemical analysis showed that it contained ammonia. The State charged Appellant with possession of anhydrous ammonia with intent to manufacture methamphetamine, a jury found him guilty, he pled true to an enhancement allegation, and the trial court sentenced him to thirty-five years' confinement.
Sufficiency of the Evidence
In his first two points, Appellant challenges the sufficiency of the evidence to support his conviction. We review challenges to the sufficiency of the evidence by viewing all of the evidence in the light most favorable to the verdict 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 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
The jury found Appellant guilty of possessing certain chemicals with intent to manufacture a controlled substance. The health and safety code makes it an offense for a person, with intent to unlawfully manufacture a controlled substance, to possess anhydrous ammonia. Tex. Health & Safety Code Ann. § 481.124(a)(1) (West 2010).
Two presumptions from the health and safety code apply in this case. The first, at issue in Appellant's third point, addressed below, is that intent to unlawfully manufacture the controlled substance methamphetamine is presumed if the person possesses anhydrous ammonia in a container or receptacle that is not designed and manufactured to lawfully hold or transport anhydrous ammonia. Id. § 481.124(b). The second, at issue in Appellant's first point, is that a substance is presumed to be anhydrous ammonia if it is in a container or receptacle that is not designed and manufactured to lawfully hold or transport anhydrous ammonia, if a properly administered field test of the substance using a testing device or instrument designed and manufactured for that purpose produces a positive result for anhydrous ammonia, or if a laboratory test of a water solution of the substance produces a positive result for ammonia. Id. § 481.124(c)(2).
Appellant contends in his first point that the evidence is insufficient to show that the substance seized from a shed in the backyard was anhydrous ammonia because the jury was not instructed on the applicable presumption. He concedes that laboratory testing of a water solution of the substance taken from a watercooler in the backyard yielded ammonia. But he argues that the evidence nonetheless is insufficient because the jury was not instructed to presume that the substance was anhydrous ammonia if it found that the above requirements of the presumption were met, that is, that the substance was found in an unapproved container and that a laboratory test of a water solution of the substance produced a positive result for ammonia. In other words, Appellant argues that although the evidence supports the presumption, because the jury was not told to make it, the evidence is insufficient. We disagree.
Sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge for the case, not the charge actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Byrd, 336 S.W.3d at 246; Malik, 953 S.W.2d at 240.
As discussed relative to Appellant's third point below, the jury charge included half of the presumptions germane to this case. A hypothetically correct charge would have included both. That is, it would have instructed the jury that it could presume the substance at issue was anhydrous ammonia because, as Appellant concedes, that presumption is supported by evidence that laboratory testing of a water solution of a substance seized from an unapproved containerproduced a positive result for ammonia. See Tex. Health & Safety Code Ann. § 481.124(c)(2); Scott v. State, 253 S.W.3d 736, 746 (Tex. App.—Amarillo 2007, pet. ref'd).
Because the evidence is undisputed that an aqueous solution of the substance seized from a water cooler, which is not an approved container, tested positive for ammonia, and that such a result leads to the presumption that the substance is anhydrous ammonia, we hold that the evidence is sufficient under a hypothetically correct charge to support a reasonable juror's belief beyond a reasonable doubt that the seized substance was anhydrous ammonia. We overrule Appellant's first point.
In his second point Appellant contends that the evidence is insufficient to link him to the anhydrous ammonia found in the shed behind the house he occupied. Although anhydrous ammonia is not an unlawful substance per se, as we have said, it is unlawful if possessed with the intent to unlawfully manufacture a controlled substance. See Tex. Health & Safety Code Ann. § 481.124(a)(1).
When it is possessed with the requisite intent, then we treat anhydrous ammonia as a controlled substance, and the law pertaining to the possession of controlled substances is, therefore, useful to our analysis. See Wootton v. State, 132 S.W.3d 80, 86 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd). To prove unlawful possession of a controlled substance, the State must show that the accused: (1) exercised control, management, or care over the substance; and (2) knew the matter possessed was contraband. Poindexter v. State, 153S.W.3d 402, 405 (Tex. Crim. App. 2005); Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); see Tex. Health & Safety Code Ann. § 481.002(38). Whether this evidence is direct or circumstantial, it must establish, to the requisite level of confidence, that the accused's connection with the contraband was more than just fortuitous. Poindexter, 153 S.W.3d at 405-06; Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). This is the whole of what formerly was known as the "affirmative-links rule." Poindexter, 153 S.W.3d at 405-06; Brown, 911 S.W.2d at 747. The court of criminal appeals has recognized, however, that the word "affirmative" adds nothing to the plain meaning of "link" and has dropped it when assessing the sufficiency of circumstantial evidence to show possession. See Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006).
The rule is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's contraband. Poindexter, 153 S.W.3d at 406; see United States v. Phillips, 496 F.2d 1395, 1397 (5th Cir. 1974) (), cert. denied, 422 U.S. 1056 (1975). The rule simply restates the common-sense notion that a person—such as a father, son, spouse, roommate, or friend—may jointly possess property like a house but not necessarily jointly possess the contraband found in that house. Poindexter, 153 S.W.3d at 406 (citing United States v. Smith, 930 F.2d 1081, 1086-87 (5th Cir. 1991)). Thus, the court ofcriminal appeals has formulated the rule that when a person is not in exclusive possession of the place where a controlled substance is found, it cannot be concluded that he had knowledge of and control over the contraband unless there are additional independent facts and circumstances linking him to it. See Poindexter, 153 S.W.3d at 406; Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981).
The record shows that another person was present in the house with Appellant and as close to the anhydrous ammonia as Appellant was when the warrant was executed. Under these circumstances, it was the State's burden to show additional independent facts and circumstances linking Appellant to the anhydrous ammonia seized from the shed. See Poindexter, 153 S.W.3d at 406; Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988); Deshong, 625 S.W.2d at 329.
Factors that may link an accused to contraband include whether (1) the accused was present when the search was conducted; (2) the contraband was in plain view; (3) the accused was in close proximity to and had access to the contraband; (4) the accused was under the influence of narcotics when arrested; (5) the accused possessed other contraband or narcotics when arrested; (6) the accused made incriminating statements when arrested; (7) the accused attempted to flee; (8) the accused made furtive gestures; (9) there was an odor of contraband; (10) other contraband or drug paraphernalia were present; (11) the accused owned or...
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