Harold John Adams, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: May 24, 2006
• Docket: 12-04-00262-CR
• Status: Published

Opinion

                NO. 12-04-00262-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

HAROLD JOHN ADAMS, JR.,       §          APPEAL FROM THE 392ND

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §          HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            Harold John Adams, Jr. appeals his conviction for the manufacture of between two hundred and four hundred grams of methamphetamine, for which he was sentenced to imprisonment for thirty years and fined ten thousand dollars.  Appellant raises fourteen issues on appeal.  We reform the trial court’s judgment and affirm as reformed.

Background

            Appellant was charged by indictment with one count of manufacturing between two hundred  and four hundred grams of methamphetamine and one count of possession of between two hundred and four hundred grams of methamphetamine.  The indictment contained an enhancement paragraph concerning a prior conviction for possession of a controlled substance.¹  Appellant pleaded “not guilty” to the charges, and the matter proceeded to jury trial.

            At trial, Gun Barrel City Police Department Investigator Patrick Johnson testified as the State’s first witness.  Johnson testified that on March 21, 2003, he was contacted by a reliable confidential informant who told him that Donald Penix was manufacturing methamphetamine in a small tent behind a residence owned by Renee Myer in Henderson County, Texas.  The informant made reference to another individual with regard to Penix’s activities at the Myer residence, but could not identify or describe that other person.  Johnson and Henderson County Sheriff’s Department Investigator Joseph Miller gathered a group of officers and proceeded to the Myer residence.

            Johnson testified that upon their arrival at the Myer residence, he had an unobstructed view of the portion of the backyard where the tent was located.  Johnson stated that as he and other officers approached, he observed two white males run from the tent in the backyard into a wooded area behind the house.²  Johnson identified the two men as Appellant and Penix.  Johnson further stated that Appellant was wearing blue jeans, but was not wearing a shirt.

            According to Johnson, Officer Kevin Hanes shouted at Appellant to stop, but Appellant continued to flee, scaled a barbed wire fence in the backyard, and ran across a pasture into the wooded area behind the residence.  Hanes and Johnson ultimately apprehended Appellant approximately one quarter mile from the Myer residence.  Penix was detained in the nearby pasture by Officers Jeremy Scruggs and Anthony Holmes.

            Investigator Miller testified as the State’s next witness.  Miller testified that he looked inside the tent and observed (1) a plastic bowl with a doughy mixture in it, (2) a blue pitcher with a metal strainer and a cloth on top of it that contained a liquid substance, (3) a loaded .357 magnum handgun lying on a chair, and (4) a black bag containing clothing.  Miller also stated that a shirt found close to a nearby tree was likely to be Appellant’s size since Penix was a much larger individual, weighing approximately three hundred pounds.³  Miller further stated that he saw no other person in the backyard other than Appellant and Penix.  Miller testified that he detected the familiar odor of anhydrous ammonia emanating from the tent, which, among other factors, caused him to later contact the Department of Public Safety (“DPS”) Lab in Tyler, Texas to investigate the scene.

            Miller further testified that he obtained oral consent from Myer to search her residence.  Miller stated that once inside the residence, he discovered marijuana, numerous pseudoephedrine  boxes in the clothes dryer, two pill grinders, scales, plastic baggies, firearms, syringes, and numerous other drug related items.  Miller further stated that Hanes located a syringe containing a brownish liquid on Appellant at the time of his arrest that was identical to the syringes Miller discovered in the residence.  Miller testified that thereafter, Appellant, Penix, and Myer were all arrested for manufacture of a controlled substance.

            Dennis Pridgen and Reuben Rendon of the DPS crime lab in Tyler, Texas responded to Miller’s request for assistance.  At trial, Pridgen, testified that he was the drug section supervisor for the DPS crime lab in Tyler.  Pridgen stated that at the scene, as he approached the tent, he detected the strong odor of ammonia that is associated with anhydrous ammonia, a common ingredient in the manufacture of methamphetamine.  Pridgen described the tent as a methamphetamine lab and further stated that from the items located in the tent, it appeared as though “they were in the process of producing and extracting methamphetamine” in the tent.  Pridgen collected evidence from the blue pitcher, the plastic bowl, and the straining cloth found inside the tent.  He further testified that many of the items located in the tent were consistent with items commonly found at clandestine methamphetamine lab sites.

            Pridgen further testified that he examined evidence in the Myer residence.  Pridgen testified that items located in the residence such as crushed ephedrine or pseudoephedrine tablets, precut strips of tinfoil, drain opener, coffee grinders with powder residue on them, and mineral spirits were commonly used in the methamphetamine manufacturing process.  Other such items were located in the backyard of the Myer residence including Coleman fuel, a garden sprayer,⁴ starting fluid cans, and a propane tank.  Pridgen later tested the substances found in the plastic bowl and the metal strainer located atop the blue pitcher. Pridgen testified that these substances contained methamphetamine.⁵

            Myer was the State’s final witness.  Myer testified that she lived at the residence behind which the tent containing the methamphetamine lab was located.  Myer stated that Appellant had been living in the tent for approximately four days before the date in question.  Myer further stated that it was common for Penix to spend time at her residence and that he had spent the night there the night before he was arrested.  Myer testified that she was a methamphetamine user.  Myer further testified that three days before the officers discovered the tent, Penix asked her if he could smoke the bones to try to get a second pull out of them.  According to Myer this meant to try to get more methamphetamine out of the substance left over from the manufacture of a previous batch by putting the substance through a second manufacturing process.  Myer further testified that Appellant was with Penix when he asked her this question and that she told Penix that it would be alright if he would get rid of it immediately after he finished.  Myer stated that in the days leading up to the arrest, she observed Appellant walking around with a handgun similar to the one discovered by officers in the tent.  Myer described Appellant’s actions as “patrolling” or “guarding.”

            After Myer’s testimony, the State rested.  Appellant moved for a directed verdict, which the trial court denied.  Thereafter, Appellant rested.  Following the argument of counsel, the jury found Appellant guilty of the count of manufacturing of a controlled substance and made a finding that Appellant used or exhibited a deadly weapon.  After a trial on punishment, the jury assessed Appellant’s punishment at imprisonment for thirty years and a ten thousand dollar fine.  The trial court sentenced Appellant accordingly, and this appeal followed.     

Verdict and Judgment

            In his first issue, Appellant argues that the verdict is defective in that the jury failed to make a finding on the offense of possession of a controlled substance as charged in the indictment.  In his second issue, Appellant argues that the jury’s failure to make a finding concerning a charged offense subjects him to double jeopardy in violation of his constitutional rights.

            The charge presented to the jury read as follows:

            You are instructed that you shall make only one finding on this verdict form. 

VERDICT FORM

We, the jury, find the Defendant, Harold John Adams, Jr., not guilty.

                                                                                                _____________________________________

                                                                                                Foreperson

-OR-

We, the Jury, find the Defendant, Harold John Adams, Jr., guilty of manufacture of a material, compound, mixture or preparation containing a controlled substance in an amount of 200 grams or more but less than 400 grams, as charged in count one of the indictment.

We, the Jury, find the Defendant, Harold John Adams, Jr., guilty of possession of a controlled substance in an amount of 200 grams or more but less than 400 grams, as charged in count two of the indictment.

The jury found Appellant guilty of manufacture of a controlled substance and, as instructed in the charge, made only that one finding.

            If the charging instrument contains more than one count, the jury shall be instructed to return a finding of guilty or not guilty in a separate verdict as to each count and offense submitted to them.  Tex. Code Crim. Proc. Ann. art. 37.07 § 1(c) (Vernon Supp. 2005).  Where the court submits one of several counts charged to the jury, such is tantamount to an acquittal of the other counts not submitted and amounts to an election by the state to rely on the count submitted.  See Berwick v. State, 149 Tex. Crim. 372, 194 S.W.2d 768, 770 (Tex. Crim. App. 1946).  Moreover, if the State alleges two or more offenses in separate counts in a single indictment and refuses to make an election, the court may, instead of compelling an election, submit each of the counts to the jury with the instruction that a conviction could be had on only one of them.  See Crocker v. State, 573 S.W.2d 190, 197 (Tex. Crim. App. [Panel Op.] 1978).  No double jeopardy problems are extant with this type of submission because the jury returns either an acquittal or a verdict of guilty on one count only.  Id.

            In the instant case, the jury was instructed that it could make only one finding on the verdict form.  Among its choices was a finding of “not guilty,” a finding of “guilty” as to count one, or a finding of “guilty” as to count two.  We hold that the jury’s verdict is not defective for finding Appellant “guilty” on only one count as it was instructed.  Furthermore, we hold that the submission of the charge in this fashion does not subject Appellant to double jeopardy.  Appellant’s first and second issues are overruled.

            In his third issue, Appellant argues that the trial court’s judgment is invalid because it is silent as to matters required to be in the judgment such as Appellant’s plea to the offense charged in count two of the indictment and the verdict thereon.  As set forth above, the jury, as instructed, did not reach a verdict on count two in the indictment.  The judgment will be reformed to reflect Appellant’s plea to count two of the indictment and an acquittal thereon.  Appellant’s third issue is overruled.

            In his fifth issue, Appellant contends that the trial court erred in denying his motion in arrest of judgment.  Appellant’s motion raised substantially the same grounds as he raises in his issues one and three on appeal.  To the extent our resolution of Appellant’s third issue requires that we reform the trial court’s judgment, we do not reach that portion of Appellant’s fifth issue.  To the extent that the grounds raised to the trial court are the same grounds as Appellant raised in his first issue, we hold that the trial court did not err in denying Appellant’s motion.  Appellant’s fifth issue is overruled in part and not addressed in part.

Deadly Weapon Finding and Omission of a Fine

            In his fourth issue, Appellant contends that the trial court’s judgment is invalid because it fails to include the jury’s deadly weapon finding and omits the monetary fine imposed on Appellant as part of his sentence.  While Appellant is correct that the judgment does not contain such findings, the remedy Appellant seeks is improper. 

            When a judgment does not reflect the jury's findings, the remedy is to reform the judgment.  De Anda v. State, 769 S.W.2d 522, 523 (Tex. Crim. App. 1989); Aguirre v. State, 732 S.W.2d 320, 327 (Tex. Crim. App. [Panel Op.] 1982).  We may reform the judgment to include the jury’s finding of the use of a deadly weapon.  Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.–Dallas 1991, pet. ref’d).  As such, we will reform the judgment to reflect the jury’s deadly weapon finding and imposition of a monetary fine.  Appellant’s fourth issue is overruled.

Evidentiary Sufficiency of Deadly Weapon Finding

            In his sixth issue, Appellant argues that the evidence is legally insufficient to support the jury’s deadly weapon finding.  In his seventh issue, Appellant argues that the evidence is factually  insufficient to support the jury’s deadly weapon finding.

Legal Sufficiency

            Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction.  See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d).  The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).  The evidence is examined in the light most favorable to the jury’s verdict.  See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186.  A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.  See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).

            The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge.  See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.”  Id. 

            Here, the State was required to prove that Appellant (1) used or exhibited a deadly weapon, to-wit: a firearm, during the commission of the offense or (2) was a party to the offense and knew that a deadly weapon would be used or exhibited.  See Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon Supp. 2005); Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon Supp. 2005).  A person is criminally responsible as a party to an offense if the offense is committed by the conduct of another for which he is “criminally responsible.”  See Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003).  A person is “criminally responsible” for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003).  Appellant argues that there is neither evidence that he was found in possession of a firearm upon his arrest, nor that he used a firearm in the commission of the offense with which he was charged.

            The court of criminal appeals’ decision in Gale v. State, 998 S.W.2d 221 (Tex. Crim. App. 1999) in instructive.  In Gale, the appellant permitted police to search his residence.  Id. at 223.  Upon a search of the appellant’s bedroom closet, officers discovered a trash bag containing twenty pounds of marijuana, a Ruger Mini 14 rifle, an Uzi semi automatic assault rifle, a nine millimeter rifle, a nine millimeter handgun, and ammunition for the firearms including a loaded clip for the Mini 14 rifle.  Id.  Relying on Patterson v. State,⁶ the court held that the record supported a deadly weapon finding because a juror could rationally find that the weapons discovered facilitated the appellant’s criminal offense of possession of marijuana.  See Gale, 98 S.W.2d at 225.

            In the case at hand, the record reflects that Appellant and Penix were seen running from the  tent as the officers approached.  Miller testified that he saw a  loaded .357 magnum handgun lying on a chair in close proximity to the items in the tent found to contain methamphetamine and other items that Pridgen testified were consistent with items commonly found at clandestine methamphetamine lab sites.  Moreover, Myer⁷ stated that Appellant had been living in the tent for approximately four days before the date in question.  Myer further testified that she was a methamphetamine user and that three days before the officers discovered the tent, Penix had asked her if he could try to get more methamphetamine out of the substance left over from the manufacture of a previous batch by putting the substance through a second manufacturing process.  Myer further testified that Appellant was with Penix when he asked her this question and that she told Penix that it would be alright if he would get rid of it immediately after he finished.  Finally, Myer stated that in the days leading up to the arrest, she observed Appellant walking around with a handgun similar to the one discovered by officers in the tent and described Appellant’s actions as “patrolling” or “guarding.”

            Examining the aforementioned evidence in the light most favorable to the jury’s verdict and in light of the nonexclusive factors set forth above, we conclude that the jury could have reasonably determined beyond a reasonable doubt that the weapon discovered facilitated Appellant’s criminal offense of manufacturing methamphetamine.  See Gale, 998 S.W.2d at 225.  Moreover, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant acted with intent to promote the manufacture of methamphetamine and aided or attempted to aid Penix to commit the offense with knowledge that the firearm would be exhibited.  Therefore, we hold that the evidence was legally sufficient to support the jury’s deadly weapon finding.  Appellant’s sixth issue is overruled.

Factual Sufficiency

            Turning to Appellant’s contention that the evidence is not factually sufficient to support the deadly weapon finding, we must first assume that the evidence is legally sufficient under the Jackson standard.  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict,  see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony.  Santellan, 939 S.W.2d at 164.  Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d).  Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof is so obviously weak as to undermine our confidence in the jury's determination, or the proof, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).⁸ 

            A finding will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.”  Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see  Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).  A clearly wrong and manifestly unjust finding occurs where such a finding “shocks the conscience” or “clearly demonstrates bias.”   Zuniga, 144 S.W.3d at 481.

            As the court of criminal appeals explained in Zuniga, “There is only one question to be answered in a factual-sufficiency review:  Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt?”  See id. at 484. 

            We have reviewed the record in its entirety.  The only facts tending to weigh against the jury’s finding is that Appellant neither had the handgun on his person when he was arrested, nor was he apprehended inside the tent where the handgun was located.  We iterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt, 932 S.W.2d at 96.  Given the circumstances in the instant case, we conclude that the jury was entitled to find that the evidence tending to link Appellant to the firearm in question was of greater consequence than the evidence not tending to so link Appellant.  The jury was entitled to find that the facts Myer related concerning her observations of Appellant were a credible and accurate portrayal of the events that transpired on the days preceding Appellant’s arrest.  Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed to us any evidence that causes us to conclude that the proof supporting a deadly weapon finding is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render the finding clearly wrong or manifestly unjust.  Therefore, we hold that the evidence is factually sufficient to support the jury’s deadly weapon finding.  Appellant’s seventh issue is overruled.

Evidence that Others Were Endangered

            In his eighth issue, Appellant argues that absent evidence that others were actually endangered, the jury’s deadly weapon finding cannot be sustained.  In support of his contention, Appellant cites Mann v. State, 13 S.W.3d 89, 92 (Tex. App.–Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001) and Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).  Both Mann and Cates were cases in which the State sought a finding that a car was used as a deadly weapon.  See Cates, 102 S.W.3d at 738; Mann, 13 S.W.3d at 90.  In each case, the court set forth the principle that to sustain a deadly weapon finding, there must be evidence that others were endangered.  See Cates, 102 S.W.3d at 738; Mann, 13 S.W.3d at 92.  While such an inquiry is appropriate in the course of proving that an automobile is a deadly weapon, it is not necessary in the instant case because a firearm, unlike an automobile, is a deadly weapon per se.  See Tex. Pen. Code Ann. § 1.07(a)(17).  Moreover, as set forth above, the record reflects that the firearm in the instant case facilitated Appellant’s criminal offense of manufacturing methamphetamine.  We hold that the State was not required to prove that others were actually endangered to support a deadly weapon finding in the instant case.  Appellant’s eighth issue is overruled.

Right to Confront Witness

            In his ninth issue, Appellant argues that the State improperly denied him the right to confront the State’s witness, Officer Patrick Johnson, during cross examination by producing evidence tending to establish Appellant’s innocence after Johnson testified.

            The standard of review for a trial court's evidentiary ruling is abuse of discretion.  Long v. State, 10 S.W.3d 389, 396 (Tex. App.–Texarkana 2000, pet ref'd).  The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him.  U.S. Const. amend. VI; Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).  Confrontation means more than being allowed to confront the witness physically.  Lopez, 18 S.W.3d at 222.  A primary interest secured by the Confrontation Clause is the right of cross examination.  Id.  Each Confrontation Clause issue must be weighed on a case by case basis, carefully taking into account the risk factors associated with admission of the evidence.  Id.  In weighing whether evidence must be admitted under the Confrontation Clause, the trial court should balance the probative value of the evidence sought to be introduced against the risk its admission may entail.  Id.  The trial court maintains broad discretion to impose reasonable limits on cross examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence.  Id.

            However, unless the offended party timely objects on specific grounds, he waives his right of confrontation.  See Miller v. State, 940 S.W.2d 810, 816 (Tex. App.–Fort Worth 1997, pet. ref’d) (appellant waived confrontation issue even though he timely objected to the witness’s release by the trial court, where he did not state specifically that he objected to such release on the basis of his confrontation rights).  In the case at hand, the record reflects that Patrick Johnson’s affidavit was turned over to Appellant’s counsel by the prosecution no later than the afternoon of May 18, 2004 after the testimony of all of the law enforcement officers, including Johnson, had concluded.  When the trial reconvened on May 19, 2005, Appellant moved for a mistrial, and the following exchange occurred:

[APPELLANT’S COUNSEL]:  [A]t the close of court yesterday, the Court was gracious enough to file on record of the Court a[n] affidavit from a confidential informant in this case and provide defense for the first time we’ve ever seen it a copy of that affidavit.  That affidavit appears to say, first, that the defendant was not involved in the manufacturing, at least to the witness of the confidential informant whenever he saw that and for however long he saw it.

Implicit to that is the issue of possession because they’re arising out of the exact same episode, fact circumstances, situation, front to back.  The testimony was replete yesterday for periods of time beginning months before the event to many hours after the event encompassing the period of time that the confidential informant was clearly there and clearly saw whatever the confidential informant saw.

We urge the Court that that complies with the requirements of Rule 508,⁹ the disclosure of the confidential informant’s identity, the right to confrontation by the defendant, the right to have that person here.  And I would point out to the Court as I announced to the Court yesterday, we delayed our opening statement pending a ruling of the Court on the confidential informant’s identity because of its impact or potential impact on the defendant’s case.  That ruling has not been forthcoming. 

We’re now filing an official motion under Rule 508 for that identity attached onto it the exhibit the Court filed in the record of this case asking that that identity be disclosed.  We believe the testimony throughout today establishes there’s a reasonable probability that this defendant–this confidential informant has information that’s material to the guilt or innocence stage of this trial.

The Court has done an in camera interview.  We’ve done the process a little bit upside down, but nonetheless it has been done by agreement.  So we respectfully request the identity be disclosed and that person be brought instant to court to testify.

                ....

THE COURT:  [A]re you asking me to make a ruling at this time on the confidential informant or continue the Court’s desire to carry the motion forward?

[APPELLANT’S COUNSEL]: I believe that the absence of the confidential informant, particularly the absence–

THE COURT: I’m not asking for your reasons.  I’m asking you for what you want me to do.

[APPELLANT’S COUNSEL]: Yes, sir.  I believe the absence of the affidavit really compromised the cross-examination done yesterday on the officers.  I don’t know what’s coming today.  I don’t know the State’s case.  I don’t know what they’re going to present.  The confidential informant appears to be extremely material to the progress of this case.

THE COURT: I’m going to find that the confidential informant does not possess exculpatory evidence.

[APPELLANT’S COUNSEL]: We respectfully take exception to the Court’s ruling relying on the affidavit of the confidential informant.  We believe part of the record in this case, in and of itself, in order for the confidential informant to swear or for the officer to swear what the confidential informant has said–implicit to that, inherent to that, and actually a part of that, the confidential informant has to have exculpatory information about Harold Adams.

THE COURT: And the Court had the interview with the confidential informant transcribed, ordered it sealed so it will be part of the record of this case for appeal.  And the appellate court can then examine that record for the in camera interview and determine whether there was harmful error committed or not.

So I’ll deny your motion I suppose. ....

            Appellant’s objection to the trial court does not comport with his argument on appeal.  While Appellant references “confrontation,” he did so with regard to his right to confront the confidential informant.  While Appellant later states that the “absence of the affidavit really compromised the cross examination done yesterday on the officers[,]” he did not argue, as he now argues on appeal, that the State’s delay in turning over the affidavit to the defense denied him of his confrontation rights as to Johnson.  Thus, we hold that because Appellant’s objection to the trial court fails to comport with his argument on appeal, he has not preserved the issue.  See Tex. R. App. P. 33.1(a); Miller, 940 S.W.2d at 816.  Appellant’s ninth issue is overruled.

Methamphetamine Hydrochloride

            In his tenth issue, Appellant argues that the indictment is fundamentally defective and will not sustain his conviction for manufacturing methamphetamine hydrochloride.  In his brief, Appellant states that he learned for the first time during trial that he was accused of manufacturing methamphetamine hydrochloride.  However, Appellant offers no citation to the record to support that such a statement was made.  See Tex. R. App. P. 38.1(h).  The indictment does not charge Appellant with manufacture of methamphetamine hydrochloride, nor does the court’s charge make reference to such a substance.  The judgment sets forth that Appellant was found guilty of manufacture of a controlled substance as charged in the indictment.  We conclude that Appellant was not charged with or convicted of manufacturing methamphetamine hydrochloride.¹⁰  Appellant’s tenth issue is overruled.

Evidentiary Sufficiency of Underlying Conviction

            In his thirteenth issue, Appellant argues that the evidence is legally insufficient to support his conviction for manufacture of methamphetamine.  In his fourteenth issue, Appellant argues that the evidence is factually insufficient to support his conviction for manufacture of methamphetamine.  The standard of review applicable to legal and factual sufficiency is set forth above in our discussion of Appellant’s sixth and seventh issues respectively.

            In the instant case, the State was required to prove that Appellant knowingly manufactured methamphetamine. See Tex. Health & Safety Code Ann. §§ 481.112(a); 481.102(6).  “Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance other than marijuana, directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis.  See Tex. Health & Safety Code Ann. § 481.002(25) (Vernon Supp. 2005).  The form in which a controlled substance is recovered is not determinative of whether the accused has committed the offense of manufacturing the drug.  Green v. State, 930 S.W.2d 655, 657 (Tex. App.–Fort Worth 1996, pet. ref’d).  Evidence that shows any of the procedures listed in section 481.002(25) is sufficient to support a conviction of the manufacture of a controlled substance.  Id.  A conclusion of guilt can rest on the combined and cumulative force of all incriminating circumstances.  See Conner v. State, 67 S .W.3d 192, 197 (Tex. Crim. App. 2001).  

Corroboration of Accomplice Testimony

            Appellant also contends that Myer’s testimony is not sufficiently corroborated.  Texas Code of Criminal Procedure article 38.14 states 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.”  Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).  In order to determine whether the accomplice witness testimony is corroborated, we must eliminate all accomplice evidence and determine whether the other inculpatory facts and circumstances in evidence tend to connect the appellant to the offense.  See McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997).  The nonaccomplice evidence does not have to directly link the appellant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt; but rather, the nonaccomplice evidence merely has to tend to connect the appellant to the offense.  Id. at 613.  No precise rule can be formulated as to the amount of evidence required to corroborate.  Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). 

            Viewed in the light most favorable to the jury's verdict, the nonaccomplice evidence in the instant case established the following:  (1) Johnson was contacted by a reliable confidential informant who told him that Penix was manufacturing methamphetamine in a small tent behind a residence owned by Myer along with another individual; (2) as Johnson and other officers approached, he observed two white males run from a tent in the backyard into a wooded area behind the house;¹¹ (3) Johnson identified the two men who ran from the tent as Appellant and Penix; (4) Appellant was wearing blue jeans, but was not wearing a shirt; (5) Hanes shouted at Appellant to stop, but Appellant continued to flee by scaling a barbed wire fence in the backyard and running across a pasture into the wooded area behind the residence where he was ultimately apprehended; (6) Miller looked inside the tent and observed (a) a plastic bowl with a doughy mixture in it, (b) a blue pitcher with a metal strainer and a cloth on top of it that contained a liquid substance, (c) a loaded .357 magnum handgun lying on a chair, and (d) a black bag containing clothing;¹² (7) a shirt was found by a nearby tree that was likely to be Appellant’s size since Penix was a much larger individual than Appellant; (8) Miller saw no person in the backyard other than Appellant and Penix; (9) Miller detected the familiar odor of anhydrous ammonia emanating from the tent; (10) as Pridgen approached the tent, he detected the strong odor of ammonia that he associated with anhydrous ammonia, a common ingredient in the manufacture of methamphetamine; (11) Pridgen described the tent as a methamphetamine lab and stated that, from the items located in the tent, it appeared as though “they were in the process of producing and extracting methamphetamine” in the tent; (12) Pridgen testified that many of the items located in the tent were consistent with items commonly found at clandestine methamphetamine lab sites; (13) Pridgen further testified that items located in the Myer residence such as crushed ephedrine or pseudoephedrine tablets, precut strips of tinfoil, drain opener, coffee grinders with powder residue on them, and mineral spirits, were commonly used in the methamphetamine manufacturing process; (14) Pridgen described other such items located in the backyard of the Myer residence including Coleman fuel, a garden sprayer,¹³ starting fluid cans, and a propane tank; and (15) Pridgen later tested the substances found in the plastic bowl and the metal strainer located atop the blue pitcher, which he stated contained methamphetamine.  After eliminating Myer’s testimony from our consideration and conducting an examination of the nonaccomplice evidence, we conclude that such nonaccomplice evidence does indeed tend to connect Appellant to the offense sufficiently to corroborate Myer’s testimony.

            In addition to the aforementioned evidence, Myer’s testimony reflects that she lived at the residence behind which the tent containing the methamphetamine lab was located.  Myer stated that Appellant had been living in the tent for approximately four days before the date in question.  Myer further stated that it was common for Penix to spend time at her residence and that he had spent the night there the night before he was arrested.  Myer testified that she was a methamphetamine user. Myer further testified that three days before the officers discovered the tent, Penix asked her if he could smoke the bones to try to get a second pull out of them.  According to Myer this meant to try to get more methamphetamine out of the substance leftover from the manufacture of a previous batch by putting the substance through a second manufacturing process.  Myer further testified that Appellant was with Penix when he asked her this question and that she told Penix that it would be alright if he would get rid of it immediately after he finished.  Myer stated that in the days leading up to the arrest, she observed Appellant walking around with a handgun similar to the one discovered by officers in the tent.  Myer described Appellant’s actions as “patrolling” or “guarding.”

            Examining the aforementioned evidence in the light most favorable to the jury’s verdict, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant knowingly manufactured methamphetamine.  Therefore, we hold that the evidence was legally sufficient to support the jury’s verdict.  Appellant’s thirteenth issue is overruled.

            Appellant does not, in his brief, direct us to any evidence that he contends greatly outweighs the contrary proof tending to support his conviction.  We have reviewed the record in its entirety.  We reiterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt, 932 S.W.2d at 96.  Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust.  Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict.  Appellant’s fourteenth issue is overruled.¹⁴

Conclusion

            We have overruled Appellant’s issues one, two, three, four, six, seven, eight, nine, ten, thirteen, and fourteen.  We have overruled Appellant’s issue five in part, and we have not addressed part of Appellant’s issue five or issues eleven and twelve.  We reform the trial court’s judgment as follows: (1) the trial court’s judgment is reformed to reflect Appellant’s “not guilty” plea to count two of the indictment by which Appellant was charged with possession of a controlled substance, to wit: methamphetamine, in an amount of 200 grams or more but less than 400 grams; (2) the trial court’s judgment is reformed to reflect an acquittal of the aforementioned possession charge as set forth in count two of the indictment; (3) the trial court’s judgment is reformed to reflect the jury’s finding that Appellant used or exhibited a deadly weapon, to wit: a firearm, during the commission of the offense or was a party to the offense and knew that a deadly weapon would be used or exhibited; and (4) the trial court’s judgment is reformed to reflect that Appellant’s sentence included a fine in the amount of ten thousand dollars.  As reformed, we affirm the trial court’s judgment.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered May 24, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

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¹ The State later filed notice of its intent to seek an affirmative finding that Appellant used or exhibited a deadly weapon.

² Johnson testified that the two men were within five to ten feet of the tent and already running when he first saw them.  Investigator Kevin Hanes later testified that the men were within arm’s length of the tent when he first observed them.

³ Miller stated that the items of clothing inside the bag found in the tent appeared that they could be Appellant’s size and were too small to fit Penix.

⁴ Pridgen testified that garden sprayers are used as hydrogen gas generators in the final stage of the methamphetamine manufacturing process.  He stated that the contents of the sprayer were tested and deemed acidic, indicating that the sprayer was used in the methamphetamine manufacturing process.

⁵ Pridgen testified that the substance in the metal strainer weighed 21.75 grams while the substance in the bowl weighed 333.18 grams.

⁶ 769 S.W.2d 938, 942 (Tex. Crim. App. 1989).

⁷ We address the issue of whether Myer’s testimony was properly corroborated in our discussion of Appellant’s thirteenth and fourteenth issues herein.

⁸ However, “contrary evidence does not have to outweigh evidence of guilt; it has to be only enough to provide reasonable doubt.”  Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004).

⁹ See Tex. R. Evid. 508 (privilege of the State to refuse to disclose identity of a confidential informant subject to certain exceptions).

¹⁰ Appellant references that the trial court denied his pretrial motion to have an independent expert qualitatively analyze all samples of any alleged controlled substance in this matter and argues that by its denial of his motion, the trial court denied him knowledge of the actual substances in Penalty Group 1 which he was alleged to have manufactured.  While Appellant cites no authority to support that the trial court’s denial of his motion was erroneous, see Tex. R. App. P. 38.1(h), we iterate that the indictment alleged that Appellant “knowingly manufacture[d] a material, compound, mixture and preparation containing a controlled substance, namely, methamphetamine....”  See Tex. Health & Safety Code Ann. §§ 481.112(e); 481.102(6) (Vernon 2003 & Supp. 2005).

¹¹ See n. 2.

¹² See n. 3.

¹³ See n. 4.

¹⁴ Because we have concluded that the evidence was both legally and factually sufficient to support the jury’s verdict, we do not reach Appellant’s eleventh and twelfth issues, in which he argues that the evidence was legally and factually insufficient to support his conviction as a party to the offense of manufacturing methamphetamine.