COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00439-CR
JOSEPH EDWIN WILSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
MEMORANDUM OPINION1 ----------
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,
1 See Tex. R. App. P. 47.4. 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).
2 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 water
3 cooler 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 container
4 produced 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, 153
5 S.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) (―Proof of mere proximity to contraband is not sufficient to
establish actual constructive possession or the element of knowledge.‖), 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 of
6 criminal 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 had the right to possess the place where the drugs were
7 found; (12) the place where the drugs were found was enclosed; (13) the
accused was found with a large amount of cash; and (14) the conduct of the
accused indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12;
Isbell v. State, 246 S.W.3d 235, 238 (Tex. App.—Eastland 2007, no pet.). No set
formula exists to dictate a finding of sufficient links to support an inference of
knowing possession of contraband. Isbell, 246 S.W.3d at 238; Taylor v. State,
106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). The number of factors
present is not as important as the logical force or the degree to which the factors,
alone or in combination, tend to link the defendant to the contraband. Isbell, 246
S.W.3d at 238; Bates v. State, 155 S.W.3d 212, 216–17 (Tex. App.—Dallas
2004, no pet.); see Evans, 202 S.W.3d at 162.
Applying these factors to the evidence in the record reveals that most of
them favor the verdict. Appellant was present when the officers conducted the
search—Wichita County District Attorney’s Office Investigator Bobby Dilbeck
testified that Appellant was in the master bedroom when the warrant was
executed. Although the anhydrous ammonia was not in plain view—it was in a
plastic container in a shed behind the house—it was nearby, and Appellant had
access to it—he merely had to step out the back door, cross a short distance of
backyard, and enter the shed.
There is no evidence that Appellant was under the influence of narcotics
when he was arrested, that he attempted to flee, that he made any furtive
8 gestures, or that he was found with a large amount of cash. But there is
evidence that he possessed other contraband and narcotics at the time.
Numerous items and materials commonly used in the production of
methamphetamine were found throughout the property. A trash bag containing
salt and a wet paper filter through which someone had recently poured ether
from a punched can were found in the garage. A can of Coleman camp fuel
used as solvent, a can of lacquer thinner for cleaning up, and a food grinder used
for grinding pseudoephedrine pills were found in a nonfunctional truck parked in
the driveway. In the bed of the truck, the officer discovered a homemade
hydrogen chloride gas generator made from a pop bottle. Lithium batteries in
varying degrees of denuding—peeled to allow extraction of the internal lithium
strips that serve as catalysts for the chemical reactions necessary to
methamphetamine production—were found throughout the house.
There was a powerful chemical odor of ammonia and ether throughout the
house. Officers found a spray bottle of odor eliminator on Appellant’s bedside
table. Someone had written on the spray bottle in black marker, ―Wilson’s holy
water.‖ Drug paraphernalia, too, was present in the house—glass smoking
pipes, methamphetamine residue, digital scales, and straws for ingesting
methamphetamine were found in the kitchen and master bedroom. In addition,
small baggies containing a white powdery substance suspected to be
methamphetamine were found in the kitchen and dining room and in a drawer
9 beside the bed in the master bedroom. Appellant admitted that
methamphetamine found in a purse in the kitchen-dining area belonged to him.
It is undisputed that Appellant owned or had the right to possess the place
where the contraband was found. The search was executed at 1330 Pecanway
Drive around five o’clock in the morning. Officers found Appellant in bed in the
master bedroom. The clerk’s record contains Appellant’s request for court
appointed counsel, upon which he listed his address as 1330 Pecanway Drive.
Although this document was not admitted in evidence, there is merit to the
State’s argument that given its presence in the court’s file, it may have been futile
for Appellant to dispute that he lived there. Further, Appellant’s counsel argued
at closing, ―Why would somebody make methamphetamine somewhere else and
then bring all the trash to their own house to smell up the place?‖
The place where the anhydrous ammonia was found was enclosed—it was
found in an orange and white plastic water cooler inside a shed directly behind
the house and within the fence that surrounded the house. Finally, Appellant’s
conduct indicated a consciousness of guilt—he claimed ownership of
methamphetamine seized from a purse found in the house.
Considering all these factors, we hold that their cumulative logical force
would support a rational juror’s belief beyond a reasonable doubt that Appellant
knowingly possessed anhydrous ammonia with intent to manufacture
methamphetamine. See Poindexter, 153 S.W.3d at 405–06; Brown, 911 S.W.2d
10 at 747; Scott, 253 S.W.3d at 746; Wootton, 132 S.W.3d at 90. Accordingly, we
overrule Appellant’s second point.
Jury charge
In his third point, Appellant contends that the trial court erred and caused
him egregious harm by including the following paragraph, numbered 16, in the
jury charge: ―An intent to unlawfully manufacture the controlled substance,
methamphetamine[,] is presumed if the actor possesses anhydrous ammonia in
a container or receptacle that is not designed and manufactured to lawfully hold
or transport anhydrous ammonia.‖
We review claims of egregiously harmful jury-charge error by first deciding
whether the complained-of portion of the charge is, in fact, erroneous. See
Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994). If there is no
error, our inquiry ends. See id.; see also Sakil v. State, 287 S.W.3d 23, 25–26
(Tex. Crim. App. 2009). If, on the other hand, there is error in the charge, we
then must decide whether the error caused the complaining party egregious
harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh=g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Hutch v. State,
922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
Appellant argues that the trial court erred by including paragraph 16 in the
charge because the State did not present expert testimony on ―the design and
manufacture of anhydrous ammonia containers,‖ the standards for approved
11 containers, and how the container at issue in this case was substandard. He
argues that he was egregiously harmed for the same reason.
The State responds that it presented expert testimony that established that
the plastic water cooler from which the anhydrous ammonia solution was seized
was not designed and manufactured to lawfully hold anhydrous ammonia. We
agree.
Under section 2.05 of the penal code, a trial court must submit the issue of
the existence of a presumed fact to the jury if there is sufficient evidence of the
facts that give rise to the presumption. Tex. Penal Code Ann. § 2.05(a)(1) (West
2011). In this case, Investigator Dilbeck, an officer with nearly thirty years
experience investigating narcotics crimes, testified that due to its highly corrosive
nature, anhydrous ammonia had to be kept in an approved container and that
approved containers are made of metal, not plastic. He noted that the container
in which he found the anhydrous ammonia in this case was made of plastic and
that it had no markings to indicate that it was approved to hold anhydrous
ammonia, and that, in fact, it appeared to be a water cooler that one would find
on the sidelines of a high school football game filled with Gatorade. When
specifically asked whether the container was approved to hold anhydrous
ammonia, he testified, ―Definitely not.‖ He further testified that the container
would present a safety hazard if anhydrous ammonia were allowed to stay stored
inside it. We hold that this evidence is sufficient to support the trial court’s
12 including the presumption instruction in the charge, and we overrule Appellant’s
third point.
Date of Prior Conviction and Effectiveness of Counsel
In his fifth point, Appellant contends that, between the allegations in the
enhancement paragraph and the State’s evidence, there is a fatal variance that
he did not waive by pleading true that entitles him to a new punishment hearing.
In his fourth point, he claims that his counsel was ineffective for letting Appellant
plead true to the enhancement allegation.
The State alleged in the enhancement paragraph of the indictment that
Appellant was previously convicted for a felony drug offense, possession of
methamphetamine, on January 24, 2003. Appellant pled true to the
enhancement allegation, and the evidence showed that he was placed on
probation on January 24, 2003, and that his probation was revoked on May 27,
2005. After hearing the evidence and the arguments of counsel, the trial court
found the enhancement allegation true and sentenced Appellant to thirty-five
years’ confinement.
Appellant cites no cases but invokes a rule that the State cannot use a
prior conviction to enhance a subsequent offense until the prior conviction
becomes ―final.‖ For enhancement by prior conviction, the State is required to
allege and prove that the defendant was previously convicted and that the
conviction became final before the primary offense was committed. Diremiggio v.
State, 637 S.W.2d 926, 928 (Tex. Crim. App. [Panel Op.] 1982). If the defendant
13 is placed on community supervision, there is no final conviction for purposes of
enhancement of punishment or habitual offender treatment until the community
supervision is revoked. Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App.
1992); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978).
Commentators have noted that if the defendant was given community
supervision but community supervision was revoked before commission of the
primary offense, the case is regarded as though a prison sentence had been
given initially. 43A George E. Dix & John M. Schmolesky, Texas Practice:
Criminal Practice & Procedure § 46.91 (3d ed. 2011). Therefore, the conviction
is not rendered nonfinal because community supervision had been granted. Id.
The date of finality of the conviction is the date of community supervision
revocation. Capuchino v. State, 389 S.W.2d 296, 299 (Tex. Crim. App. 1965)
cert. denied, 386 U.S. 928 (1967).
Prior convictions used as enhancements must be pled in some form, but
they need not be pled in the indictment. Brooks v. State, 957 S.W.2d 30, 34
(Tex. Crim. App. 1997); Smith v. State, No. 02-07-00267-CR, 2008 WL 1777866,
at *1 (Tex. App.—Fort Worth Apr. 17, 2008, no pet.) (mem. op., not designated
for publication). The accused is entitled to a description of the judgment of
former conviction that will enable him to find the record and make preparation for
a trial on the question of whether he is the convict named in the judgment.
Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006) (quoting Hollins
v. State, 571 S.W.2d 873, 875 (Tex. Crim. App. 1978)).
14 It is not necessary to allege prior convictions for the purpose of
enhancement with the same particularity that must be used in charging on the
primary offense. Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986).
Variances between an enhancement allegation and the proof in regard to cause
numbers, courts, and dates of conviction have all been held to be immaterial.
See Rooks v. State, 576 S.W.2d 615, 616–17 (Tex. Crim. App. 1978) (affirming
when the indictment alleged a prior conviction in the ―Criminal District Court of
Harris County‖ and the proof showed that the conviction originated in the ―184th
District Court of Harris County‖); Thompson v. State, 563 S.W.2d 247, 251 (Tex.
Crim. App. [Panel Op.] 1978) (holding two-day variance between date of prior
conviction as alleged in indictment and as proved by evidence was immaterial);
Bray v. State, 531 S.W.2d 633, 635 (Tex. Crim. App. 1976) (noting that clerical
error in the number of the district court did not render proof of prior conviction at
variance with allegations in indictment).
Moreover, neither the indictment nor the charge must allege or recite the
dates of conviction as long as the allegations are specific enough to apprise the
defendant of the conviction being used against him and as long as the proof at
the trial shows the necessary succession of offenses and final convictions.
Hernandez v. State, 530 S.W.2d 563, 568 (Tex. Crim. App. 1975).
Here, the record indicates that the indictment correctly alleged the cause
number of the prior offense, the convicting court and its location, the name of the
offense, and the fact that the offense was a felony. Appellant does not contend
15 that he did not have actual pretrial notice of the conviction the State intended to
use, including the true date it was issued, or that he was surprised, misled,
unable to prepare his defense, or otherwise harmed.
Because the State was not required to allege the dates of the prior
punishment-enhancing conviction in the indictment, whether the State alleged the
date the conviction became final for enhancement purposes or the date the
original judgment was entered is immaterial. Thus, whatever variance existed
between the enhancement allegation and the proof was not fatal, and the
evidence is sufficient to support the finding of true. See Thompson, 563 S.W.2d
at 250–51; Benton v. State, 770 S.W.2d 946, 947–48 (Tex. App.—Houston [1st
Dist.] 1989, pet. ref’d). Accordingly, we overrule Appellant’s fifth point. And
because any variance between the date alleged in the indictment and the proof
at trial was immaterial, we further hold that Appellant’s counsel was not
ineffective for failing to object to it, and we overrule Appellant’s fourth point. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);
Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).
16 Conclusion
Having overruled all of Appellant’s points, we affirm the trial court’s
judgment.
LEE GABRIEL JUSTICE
PANEL: WALKER, McCOY, and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: March 1, 2012