COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00504-CR
Donald Wayne Walker § From the 97th District Court
§ of Montague County
§ (2010-0000091M-CR) v. § February 21, 2013
§ Opinion by Justice Dauphinot
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of the
trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________ Justice Lee Ann Dauphinot COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
DONALD WAYNE WALKER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
MEMORANDUM OPINION1
A jury convicted Appellant Donald Wayne Walker of possessing
pseudoephedrine with intent to manufacture methamphetamine and assessed his
punishment at twenty years’ confinement and a $5,000 fine. The trial court
sentenced him accordingly, and he now appeals, challenging the sufficiency of the
nonaccomplice evidence. Because we hold that the evidence is sufficient to support
Appellant’s conviction, we affirm the trial court’s judgment. 1 See Tex. R. App. P. 47.4.
2 On August 18, 2009, at around 12:35 p.m., City of Bowie Police Officer Chris
Hughes arrived at 534 Hutchinson Street in Bowie to stake out the trailer house
there in an attempt to locate Appellant, who had an outstanding warrant for his
arrest. Hughes had received information that Appellant could be found at that
address. Hughes saw a pickup truck at the residence; he believed that this truck
belonged to Appellant’s brother. After about ten or fifteen minutes, Hughes saw
some people get into the truck. He also saw a man remove a white bag from the
truck’s bed and take the bag into the residence.
When the truck left the house, it went past Hughes, who recognized the driver
as Appellant. Hughes called a patrol officer, who then conducted a traffic stop of the
truck in order to execute the arrest warrant. In addition to Appellant, the truck had
three passengers. One of them, Lisa Barnes, was also arrested on an outstanding
warrant, and neither of the other two passengers had a driver’s license, so the patrol
officer decided to impound the vehicle.
Hughes was present at the inventory of the vehicle, during which the officers
found a receipt for Sudafed tablets and an empty blister pack of Sudafed tablets.
After the inventory, Hughes decided to return to the residence to conduct a “knock
and talk.”
Jason Zapata answered the door to Hughes’s knock. While talking to Zapata,
Hughes noticed a chemical smell coming from inside the residence; he associated
this smell with the manufacture of methamphetamine. Hughes decided to secure
the residence and had Zapata and Cory Bong, Zapata’s girlfriend and the only other
3 person in the residence at the time, go outside. While inside the house, Hughes
saw some Sudafed boxes and blister packs on the living room floor and lithium
batteries in the bedroom.
A search warrant was obtained, and inside the house, officers found three
cans of Prestone starter fluid, which contained ether; lithium batteries, one of which
had the casing cut open and parts removed; 1280 Sudafed pills; plastic baggies; a
digital scale; a piece of broken glass pipe with brown residue; two boxes of Equate
Suphedrine and four punched blister packs; a gallon of Coleman camp fuel in a
white Walmart bag (which Zapata told Hughes he had removed from the bed of the
pickup); syringes that had been melted together; and an unknown liquid with a
chemical smell contained in a coffee cup in a kitchen cabinet. That liquid was later
determined to be methamphetamine.
Hughes also found at the residence an envelope addressed to Appellant at an
address on Small Street and some photos of Appellant. Although Appellant and his
former girlfriend had signed the lease for the residence, nothing else connecting him
to the address was found inside the residence.
At trial, Bong testified for the State. She testified that on August 17, 2009,
Zapata had offered to pay her for buying pseudoephedrine pills—$100 for each
box—and that she had agreed. That evening, she and Zapata met up with
Appellant and Barnes to go to Fort Worth and buy pseudoephedrine. On the
morning of August 18, she, Zapata, Appellant, and Barnes went to several stores.
At a Walgreen’s, she and Zapata each bought a box of pseudoephedrine. At
4 another Walgreen’s, Zapata bought another box. They then went to Walmart, where
she and Zapata each bought two boxes. After making these purchases, the four
returned to the residence, where Appellant said he lived. After an hour or two,
Barnes and Appellant left to visit Barnes’s children.
Bong further testified that her understanding was that Appellant would cook
the methamphetamine and that she would be paid by Appellant or Zapata. She
stated that she, Zapata, and Barnes purchased the pills and removed them from
their packaging.
Appellant concedes that there was sufficient evidence that there were at least
300 Sudafed pills and at least three substances listed under health and safety code
section 481.124(b)(3)(B) at the residence in question.2 Appellant argues, however,
that the State’s entire case is built primarily around accomplice Bong’s testimony.
Appellant argues that it is Bong’s testimony that established his possession and
control of both the pseudoephedrine and the “subject premises and activities
therein” and that the evidence is therefore insufficient to support his conviction.
The accomplice-witness rule is a statutorily imposed sufficiency review and is
not derived from federal or state constitutional principles that define sufficiency
2 See Tex. Health & Safety Code Ann. § 481.124(b)(3)(B) (West 2010) (providing in relevant part that intent to manufacture methamphetamine is presumed by the possession in one building of at least three hundred pseudoephedrine tablets and “at least three of the following categories of substances commonly used in the manufacture of methamphetamine: (i) lithium . . . ; . . . (iii) an organic solvent, including ethyl ether . . . ; [and] (iv) a petroleum distillate, including . . . charcoal lighter fluid”) (emphasis added).
5 standards.3 The accomplice-witness rule, which is set out in Article 38.14 of the
code of criminal procedure, provides that
[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.4
When evaluating the sufficiency of corroboration evidence under the
accomplice-witness rule, we “eliminate the accomplice testimony from consideration
and then examine the remaining portions of the record to see if there is any
evidence that tends to connect the accused with the commission of the crime.”5 To
meet the requirements of the rule, the corroborating evidence need not prove the
defendant’s guilt beyond a reasonable doubt by itself.6 Nor is it necessary for the
corroborating evidence to directly link the accused to the commission of the
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00504-CR
Donald Wayne Walker § From the 97th District Court
§ of Montague County
§ (2010-0000091M-CR) v. § February 21, 2013
§ Opinion by Justice Dauphinot
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of the
trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________ Justice Lee Ann Dauphinot COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
DONALD WAYNE WALKER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
MEMORANDUM OPINION1
A jury convicted Appellant Donald Wayne Walker of possessing
pseudoephedrine with intent to manufacture methamphetamine and assessed his
punishment at twenty years’ confinement and a $5,000 fine. The trial court
sentenced him accordingly, and he now appeals, challenging the sufficiency of the
nonaccomplice evidence. Because we hold that the evidence is sufficient to support
Appellant’s conviction, we affirm the trial court’s judgment. 1 See Tex. R. App. P. 47.4.
2 On August 18, 2009, at around 12:35 p.m., City of Bowie Police Officer Chris
Hughes arrived at 534 Hutchinson Street in Bowie to stake out the trailer house
there in an attempt to locate Appellant, who had an outstanding warrant for his
arrest. Hughes had received information that Appellant could be found at that
address. Hughes saw a pickup truck at the residence; he believed that this truck
belonged to Appellant’s brother. After about ten or fifteen minutes, Hughes saw
some people get into the truck. He also saw a man remove a white bag from the
truck’s bed and take the bag into the residence.
When the truck left the house, it went past Hughes, who recognized the driver
as Appellant. Hughes called a patrol officer, who then conducted a traffic stop of the
truck in order to execute the arrest warrant. In addition to Appellant, the truck had
three passengers. One of them, Lisa Barnes, was also arrested on an outstanding
warrant, and neither of the other two passengers had a driver’s license, so the patrol
officer decided to impound the vehicle.
Hughes was present at the inventory of the vehicle, during which the officers
found a receipt for Sudafed tablets and an empty blister pack of Sudafed tablets.
After the inventory, Hughes decided to return to the residence to conduct a “knock
and talk.”
Jason Zapata answered the door to Hughes’s knock. While talking to Zapata,
Hughes noticed a chemical smell coming from inside the residence; he associated
this smell with the manufacture of methamphetamine. Hughes decided to secure
the residence and had Zapata and Cory Bong, Zapata’s girlfriend and the only other
3 person in the residence at the time, go outside. While inside the house, Hughes
saw some Sudafed boxes and blister packs on the living room floor and lithium
batteries in the bedroom.
A search warrant was obtained, and inside the house, officers found three
cans of Prestone starter fluid, which contained ether; lithium batteries, one of which
had the casing cut open and parts removed; 1280 Sudafed pills; plastic baggies; a
digital scale; a piece of broken glass pipe with brown residue; two boxes of Equate
Suphedrine and four punched blister packs; a gallon of Coleman camp fuel in a
white Walmart bag (which Zapata told Hughes he had removed from the bed of the
pickup); syringes that had been melted together; and an unknown liquid with a
chemical smell contained in a coffee cup in a kitchen cabinet. That liquid was later
determined to be methamphetamine.
Hughes also found at the residence an envelope addressed to Appellant at an
address on Small Street and some photos of Appellant. Although Appellant and his
former girlfriend had signed the lease for the residence, nothing else connecting him
to the address was found inside the residence.
At trial, Bong testified for the State. She testified that on August 17, 2009,
Zapata had offered to pay her for buying pseudoephedrine pills—$100 for each
box—and that she had agreed. That evening, she and Zapata met up with
Appellant and Barnes to go to Fort Worth and buy pseudoephedrine. On the
morning of August 18, she, Zapata, Appellant, and Barnes went to several stores.
At a Walgreen’s, she and Zapata each bought a box of pseudoephedrine. At
4 another Walgreen’s, Zapata bought another box. They then went to Walmart, where
she and Zapata each bought two boxes. After making these purchases, the four
returned to the residence, where Appellant said he lived. After an hour or two,
Barnes and Appellant left to visit Barnes’s children.
Bong further testified that her understanding was that Appellant would cook
the methamphetamine and that she would be paid by Appellant or Zapata. She
stated that she, Zapata, and Barnes purchased the pills and removed them from
their packaging.
Appellant concedes that there was sufficient evidence that there were at least
300 Sudafed pills and at least three substances listed under health and safety code
section 481.124(b)(3)(B) at the residence in question.2 Appellant argues, however,
that the State’s entire case is built primarily around accomplice Bong’s testimony.
Appellant argues that it is Bong’s testimony that established his possession and
control of both the pseudoephedrine and the “subject premises and activities
therein” and that the evidence is therefore insufficient to support his conviction.
The accomplice-witness rule is a statutorily imposed sufficiency review and is
not derived from federal or state constitutional principles that define sufficiency
2 See Tex. Health & Safety Code Ann. § 481.124(b)(3)(B) (West 2010) (providing in relevant part that intent to manufacture methamphetamine is presumed by the possession in one building of at least three hundred pseudoephedrine tablets and “at least three of the following categories of substances commonly used in the manufacture of methamphetamine: (i) lithium . . . ; . . . (iii) an organic solvent, including ethyl ether . . . ; [and] (iv) a petroleum distillate, including . . . charcoal lighter fluid”) (emphasis added).
5 standards.3 The accomplice-witness rule, which is set out in Article 38.14 of the
code of criminal procedure, provides that
[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.4
When evaluating the sufficiency of corroboration evidence under the
accomplice-witness rule, we “eliminate the accomplice testimony from consideration
and then examine the remaining portions of the record to see if there is any
evidence that tends to connect the accused with the commission of the crime.”5 To
meet the requirements of the rule, the corroborating evidence need not prove the
defendant’s guilt beyond a reasonable doubt by itself.6 Nor is it necessary for the
corroborating evidence to directly link the accused to the commission of the
offense.7 Rather, the evidence must simply link the accused in some way to the
3 Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000). 4 Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). 5 Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). 6 Id.; Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999); Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). 7 Cathey, 992 S.W.2d at 462.
6 commission of the crime and show that “rational jurors could conclude that this
evidence sufficiently tended to connect [the accused] to the offense.”8
There is no set amount of nonaccomplice corroboration evidence that is
required for sufficiency purposes; “[e]ach case must be judged on its own facts.” 9
Circumstances that are apparently insignificant may constitute sufficient evidence of
corroboration.10
Here, the evidence shows that Appellant was driving a pickup truck when he
was arrested, and inside that pickup was a receipt for the purchase of tablets
containing pseudoephedrine. Imprinted on the receipt was the location Haltom City,
Texas, and the date of Appellant’s arrest. Also present in the pickup were empty
blister packs for the Sudafed. Additionally, Appellant was arrested soon after he left
the house containing numerous items used in the manufacture of methamphetamine
as well as methamphetamine in liquid form. There was evidence that Appellant had
leased the house, and some items of his property were found inside the house.
While it is true that the evidence shows joint possession of the trailer house, the
evidence nonetheless is sufficient to corroborate Bong’s testimony.11 And, as
Appellant concedes, Bong’s testimony provided direct evidence of his knowing
8 Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009); see McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997). 9 Malone, 253 S.W.3d at 257 (quoting Gill, 873 S.W.2d at 48). 10 See Trevino, 991 S.W.2d at 852. 11 See Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim. App. 2005).
7 possession of the pseudoephedrine and of his intent to use it to manufacture
methamphetamine.
Applying the appropriate standard of review, we hold that the evidence is
sufficient to corroborate the accomplice testimony and, accordingly, sufficient to
sustain the jury’s verdict. We overrule Appellant’s sole point and affirm the trial
court’s judgment.
LEE ANN DAUPHINOT JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: February 21, 2013