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MEMORANDUM OPINION
Nos. 04-08-00716-CR, 04-08-00717-CR, & 04-08-00718-CR
Raul GALLEGOS, Jr., Appellant
v.
The STATE of Texas, Appellee
From the 216th Judicial District Court, Bandera County, Texas Trial Court Nos. 08-067, 08-068, & 08-069 Honorable Stephen B. Ables, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice
Delivered and Filed: February 10, 2010
AFFIRMED
A jury found Raul Gallegos, Jr. guilty of one count of manufacturing methamphetamine, see
TEX . HEALTH & SAFETY CODE ANN . § 481.112 (Vernon 2003), one count of possession of
immediate precursors of methamphetamine with the intent to manufacture methamphetamine, see
id. § 481.124 (Vernon 2003), and one count of possession of methamphetamine. See id. § 481.115
(Vernon 2003). The jury assessed Gallegos’s punishment at 60 years confinement for manufacturing 04-08-00716-CR, 04-08-00717-CR, & 04-08-00718-CR
methamphetamine, 10 years confinement for possession of immediate precursors of
methamphetamine, and 50 years confinement for possession of methamphetamine. After reviewing
the record, we conclude there is legally and factually sufficient evidence to support each of
Gallegos’s convictions. We affirm the trial court’s judgments.
BACKGROUND
Officers from the Bandera County Sheriff’s Department received information from an inmate
at the Bandera County Jail, Ronnie Morgan, about a clandestine methamphetamine laboratory
located at the residence of Russell Koch. Officers arranged for Morgan’s release from jail to assist
them with their investigation. They subsequently equipped Morgan with a body microphone and
sent him to Koch’s residence to purchase methamphetamine.1
Morgan testified at trial that Koch was working outside of his garage when he arrived at the
residence. Morgan greeted Koch upon his arrival and followed Koch into his garage. Upon entering
the garage, Morgan observed Gallegos reading a magazine. Morgan knew Gallegos because
Gallegos had helped Morgan and Koch prepare materials for the manufacture of methamphetamine
in the past. Koch began mixing ingredients for the manufacture of methamphetamine and then
heated the ingredients in an electric fryer.
The three men continued speaking with each other for more than twenty minutes. At one
point during their conversation, Koch asked someone to get him a clamp. Eventually, Morgan asked
Koch if he had any methamphetamine for sale. Koch told Morgan he did not have any
methamphetamine available at that time and instructed Morgan to return later that same day. Before
1 … A copy of the recorded conversation was introduced into evidence and played for the jury during trial.
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Morgan left Koch’s residence, Koch asked Morgan to get him some matches.2 Gallegos remained
in Koch’s garage as Morgan left.
Morgan met with police following his visit to Koch’s residence. Based on Morgan’s
observations and conversation with Koch, authorities immediately obtained a search warrant for
Koch’s premises. When the police executed the warrant later that day, they apprehended Koch trying
to leave his residence through a side door. Gallegos was found sitting in the bathroom on top of a
closed toilet. Officers detected a strong odor consistent with methamphetamine production
permeating the premises, and they quickly discovered evidence of a methamphetamine laboratory
in Koch’s garage. Officers found various items and materials consistent with a clandestine
methamphetamine operation inside a tool box in Koch’s garage as well as other items in plain view
that are commonly associated with the production of methamphetamine. The items and materials
seized by police included: glassware; a fryer; dropper containers; a bag of match books; HEET
bottles; red phosphorus; iodine; boxes of medicine containing pseudoephedrine; coffee filters; a
candy thermometer; clamps; plastic tubing; pH paper; and a glass laboratory rod.
Officers also seized methamphetamine in both liquid and powder form at the scene. A plastic
soda bottle containing liquid was found underneath a workbench in Koch’s garage approximately
five feet from the table saw where Koch had been “cooking.” Joel Budge, a lab analyst employed
by the Texas Department of Public Safety, testified the liquid contained methamphetamine, which,
along with adulterants and dilutants, weighed 420.25 grams. A dish containing 2.88 grams of
2 … Chemist Joel Budge told the jury that clandestine manufacturers of methamphetamine will process striker pads from matches to obtain phosphorus, an ingredient required for the production of methamphetamine when a certain formula is used.
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powdered methamphetamine was found on a desk in the main living area of the home.3 In a locked
box also found in the garage, deputies discovered three sealed boxes of medicine, a bottle labeled
sulphuric iodine (with contents that appeared to be iodine pellets), and coffee filters that appeared
to contain phosphorus. The medicine boxes indicated they contained pills containing
pseudoephedrine. Numerous firearms were also seized from the garage and home, including a rifle
found in the bathroom where Gallegos was located.
Koch and Gallegos were arrested following the execution of the search warrant. Gallegos
was subsequently charged in three separate indictments with manufacturing more than 400 grams
of methamphetamine, possession of immediate precursors (pseudoephedrine, red phosphorus, and
iodine) with the intent to manufacture methamphetamine, and possession of more than 400 grams
of methamphetamine. All three of Gallegos’s cases were consolidated for trial, and a jury convicted
Gallegos on all three counts. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
On appeal, Gallegos argues there is legally and factually insufficient evidence to support the
findings that he: (1) manufactured methamphetamine; (2) possessed immediate precursors of
methamphetamine with the intent to manufacture methamphetamine; (3) possessed
methamphetamine; and (4) possessed a deadly weapon. We review Gallegos’s sufficiency
challenges under well-established standards of review. See Lancon v. State, 253 S.W.3d 699, 705
(Tex. Crim. App. 2008) (factual sufficiency); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007) (legal sufficiency).
3 … Budge testified that a third exhibit containing .62 grams of powdered methamphetamine was also submitted to the DPS laboratory for analysis; however, the record does not disclose where this exhibit was discovered.
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A. Manufacture of Methamphetamine
To prove the offense of manufacturing methamphetamine, the State had to prove Gallegos
knowingly manufactured methamphetamine in an amount of more than 400 grams. See TEX .
HEALTH & SAFETY CODE ANN . § 481.112. “‘Manufacture’ means the production, preparation,
propagation, compounding, conversion, or processing of a controlled substance other than
marihuana, directly or indirectly by extraction from substances of natural origin, independently by
means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes
the packaging or repackaging of the substance or labeling or relabeling of its container. Id.
§ 481.002(25) (Vernon 2003). Evidence demonstrating any of the procedures listed in section
481.002(25) is sufficient to support a conviction for the manufacture of a controlled substance.
Green v. State, 930 S.W.2d 655, 657 (Tex. App.—Fort Worth 1996, pet. ref’d). The State could
establish an offense either by showing Gallegos acted on his own to manufacture methamphetamine
or by showing Gallegos, acting with intent to promote or assist with the commission of the offense,
solicited, encouraged, directed, aided, or attempted to aid Koch manufacture methamphetamine. See
TEX . PEN . CODE ANN . §§ 7.01, 7.02 (Vernon 2003).
To obtain a conviction for the manufacture of a controlled substance, the State must link
the defendant either to an interest in the place where the manufacturing was taking place or to the
actual act of manufacturing. Webb v. State, 275 S.W.3d 22, 27 (Tex. App.—San Antonio 2008, no
pet.); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. ref’d). This may occur
through circumstantial evidence. Webb, 275 S.W.3d at 27. “Although mere presence at a drug
laboratory is insufficient to support a conviction for manufacturing, it is a circumstance tending to
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prove guilt that, when combined with other facts, shows that the accused was a participant in the
manufacturing.” Id.
In a typical drug possession case, the State is required to link the defendant to the drug to
protect the innocent bystander from conviction based solely upon his or her proximity to someone
else’s drugs. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Gilmore v. State,
No. 2-06-302-CR, 2008 WL 706621, *2 (Tex. App.—Fort Worth 2008, no pet.) (mem. op., not
designated for publication). Factors commonly used to affirmatively link a defendant in a drug
possession case 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 was present; (11)
the accused owned or had the right to possess the place where the drugs were 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 v. State, 202 S.W.3d
158, 162 n.12 (Tex. Crim. App. 2006).
By contrast, in a drug manufacturing case, while the State must still provide a link, the
purpose of such a requirement is to protect the innocent bystander who merely inadvertently happens
onto a methamphetamine lab. Gilmore, 2008 WL 706621 at *2. “Although the analysis is basically
the same whether the offense is the possession of a controlled substance or the manufacture of a
controlled substance, the factors considered may be different.” Id. For example, the manufacture
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of methamphetamine occurs in the open, whereas possession may occur in a drawer or an envelope.
Id. When methamphetamine is manufactured, it typically generates a strong odor, not merely a
residual odor. Id. The paraphernalia used in methamphetamine manufacturing are relatively
cumbersome and typically are in plain view, and the quantity of contraband will be relatively high.
Id. “As a consequence, the fact that a defendant has a prolonged presence on the premises weighs
more heavily against that defendant when methamphetamine is being manufactured on the premises
than it does in a mere possession case.” Id.
In this case, Gallegos contends he was nothing more than an innocent bystander at the
clandestine methamphetamine laboratory found at Koch’s residence. The record, however, refutes
this contention. The jury heard evidence linking Gallegos to the actual act of manufacturing
methamphetamine. First, the State introduced the audio recording of Morgan’s conversation with
Koch, from which the jury could infer Gallegos provided assistance to Koch in preparing the
clandestine methamphetamine lab for operation. The audio recording reveals an apparent exchange
between Koch and Gallegos wherein Koch asks Gallegos for a clamp and then directs Gallegos to
the location in the garage where the clamps are located. The record shows that when officers
executed their search warrant later that day, a clamp was discovered in the part of the laboratory
where the methamphetamine production had occurred. Second, the jury heard the testimony of
David Vaught, an officer from the Bandera County Sheriff’s Department, who stated Morgan had
indicated to him that Koch and Gallegos were in the process of manufacturing methamphetamine
while he was at the residence. According to Vaught, Morgan told him “they were right in the middle
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of . . . cooking [methamphetamine] or blowing off a cook.”4 In light of such evidence, we believe
the jury was free to conclude that Gallegos was an active participant in the manufacturing of
methamphetamine.
Alternatively, Gallegos asserts the record is devoid of any evidence demonstrating he knew
Koch’s unlawful intent when he purportedly handed Koch the clamp. Once again, the record does
not support Gallegos’s contention. The record shows Gallegos attempted to hide from police (in a
bathroom) when officers raided the suspected methamphetamine laboratory. The jury also heard
testimony indicating Gallegos had a prolonged presence at a place where a strong odor commonly
associated with the manufacturing of methamphetamine was detectable.5 Next, the jury heard that
officers discovered in plain view a variety of items and materials indicating methamphetamine
manufacturing. Finally, Morgan testified that it is uncommon for a person to stay around a
methamphetamine laboratory if he or she is not assisting with the manufacturing process in some
manner and that Gallegos had assisted him and Koch manufacture methamphetamine in the past by
“pulling matches.”6 Based upon such evidence, we conclude the record shows Gallegos was
cognizant of Koch’s unlawful intent and aided Koch’s unlawful manufacture of methamphetamine.
4 … See Poindexter, 153 S.W .3d at 406 (stating a jury is entitled to consider inadmissible hearsay admitted without objection). Although M organ testified at trial that he did not observe Gallegos assisting Koch manufacture methamphetamine, the jury was free to disbelieve such testimony in its role as factfinder. See Stogiera v. State, 191 S.W .3d 194, 196 (Tex. App.— San Antonio 2005, no pet.) (recognizing the jury evaluates the credibility and demeanor of witnesses and determines the weight afforded contradicting testimony).
5 … Gallegos was present at Koch’s residence at the start of the manufacturing process and was still there hours later when officers executed their search warrant.
6 … “Pulling matches” is a term used to describe the process where an individual separates matches from matchbooks for purposes of collecting the phosphorous off of the striker pads to use in the manufacture of methamphetamine. This process usually occurs before the actual “cooking” of methamphetamine.
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Lastly, Gallegos argues his conviction for manufacturing methamphetamine cannot stand
because there is no evidence any of the procedures listed in the statute’s definition of manufacturing
were occurring at the time of his arrest. See TEX . HEALTH & SAFETY CODE ANN . § 481.002(25)
(stating manufacture means the production, preparation, propagation, compounding, conversion, or
processing of a controlled substance other than marihuana, directly or indirectly by extraction from
substances of natural origin, independently by means of chemical synthesis, or by a combination of
extraction and chemical synthesis, and includes the packaging or repackaging of the substance or
labeling or relabeling of its container). Gallegos’s argument, however, ignores the fact that officers
discovered liquid containing methamphetamine when they searched the premises. This
methamphetamine, together with the cumulative force of all the other incriminating circumstances,
suggests methamphetamine processing was still ongoing at the time officers raided Koch’s residence.
We therefore reject Gallegos’s contention on appeal.
B. Possession of Immediate Precursors of Methamphetamine
To prove the offense of possession of an immediate precursor with the intent to manufacture
methamphetamine, the State must show a person, with the intent to unlawfully manufacture
methamphetamine, possessed an immediate precursor of methamphetamine. TEX . HEALTH &
SAFETY CODE ANN . § 481.124(a)(2). In this case, the State could establish an offense by showing
Gallegos either: (1) acted on his own; or (2) acted with the intent to promote or assist the offense by
soliciting, encouraging, directing, aiding, or attempting to aid another person in the commission of
the offense. See TEX . PEN . CODE ANN . §§ 7.01, 7.02.
Gallegos was charged with possessing the following precursor substances: pseudoephedrine;
red phosphorous; and iodine. Although Gallegos acknowledges that the possession of these
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substances is a violation of the law if possessed under the right set of circumstances, he believes
those circumstances are not present in this case because the State failed to introduce evidence
establishing the substances seized by police were actually pseudoephedrine, red phosphorous, and
iodine. We are unpersuaded by this contention because the State introduced sufficient evidence
establishing the substances authorities seized were, in fact, the precursors alleged in the indictment.
The record reveals the State presented the testimony of a laboratory chemist, Joel Budge, to
establish the identity of the red phosphorous and iodine confiscated by authorities. Budge testified
iodine is “very easy to recognize” due to its distinctive odor and appearance. He stated iodine is
known to cause staining and will stain “everything around it . . . brown.” Budge explained he
examined a plastic bottle of gray pellets and concluded, based upon his observations of the
substance, the substance could be nothing other than iodine. As for the red phosphorous, Budge
noted it is “real easy to recognize” because of its “characteristic appearance.” Budge testified he
examined a plastic bottle containing red powder and conducted a preliminary test on the substance,
which “turn[ed] positive” for red phosphorous. Based on his observations, Budge believed the red
powder analyzed was red phosphorous. The jury, as the factfinder, was free to believe Budge’s
testimony, determine what weight to give it, and draw any reasonable inferences in determining the
nature of the substances analyzed. See Stogiera v. State, 191 S.W.3d 194, 196 (Tex. App.—San
Antonio 2005, no pet.). The jury apparently believed Budge’s testimony as to the identity of the
iodine and red phosphorous seized by authorities, and we must defer to such findings on appeal.
As for the remaining substance at issue, the State introduced the sealed packages of medicine
containing pseudoephedrine confiscated from Koch’s premises. The labeling on the sealed packages
indicates each package held medicine containing pseudoephedrine. This labeling served as proof
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of the contents of the packaging and therefore established the identity of the substance for the jury.
See Shaffer v. State, 184 S.W.3d 353, 361 (Tex. App.—Fort Worth 2006, pet. ref’d) (holding
evidence was legally and factually sufficient to prove appellant was in possession of
pseudoephedrine where the sealed cold medicine packages introduced by the State included labeling
indicating its contents contained pseudoephedrine). Because the State was able to establish the
identity of the substances for the jury through the evidence it presented at trial, see generally
Manning v. State, 637 S.W.2d 941, 943 (Tex. Crim. App. 1982) (indicating State must present
chemical analysis or other evidence to establish the identity of a controlled substance), we must
overrule Gallegos’s contention.7
Gallegos further contends there is legally and factually insufficient evidence to support his
conviction because there is no evidence linking him to the pseudoephedrine, red phosphorous, or
iodine seized from Koch’s premises. Regardless of whether the evidence is direct or circumstantial,
it must establish the defendant’s connection with an illegal substance was more than fortuitous.
Evans, 202 S.W.3d at 161. When, as here, the defendant is not in exclusive possession of the place
where the illegal substances are found, the State must show additional links between the defendant
and the contraband. Poindexter, 153 S.W.3d at 406. The number of factors linking the defendant
to the contraband is less important than the logical force with which all the evidence, both direct and
circumstantial, connects the defendant to the contraband. Evans, 202 S.W.3d at 162.
Gallegos points our attention to various record excerpts suggesting that none of the
contraband items belonged to Gallegos. In deciding whether the evidence is sufficient to link the
7 … Having determined there is sufficient evidence establishing the substances seized were pseudoephedrine, red phosphorous, and iodine, we reject Gallegos’s alternative contention that the court’s “charge leaves open the strong possibility that the jury convicted [Gallegos] of committing an offense for which there is legally insufficient evidence.”
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accused to contraband, however, the trier of fact is the exclusive judge of the credibility of the
witnesses and the weight to be given to their testimony. Poindexter, 153 S.W.3d at 406. The jury
was thus free to disbelieve the testimony in question and we will not intrude upon the jury’s
evaluation of such testimony on appeal. See id.
Although Gallegos did not own the residence where the precursors and other contraband
items were discovered, he nevertheless had a prolonged presence at the location despite the strong
odor of methamphetamine production and the open and obvious presence of weapons, drugs, and
other items needed to manufacture methamphetamine. Gallegos was found in close proximity to the
area where the precursors and other items were discovered by police. Further, the record shows
Gallegos actively participated in the manufacturing operation at Koch’s residence and even
attempted to hide from authorities when officers arrived to execute their warrant. We believe the
logical force of these factors is sufficient to link Gallegos to the precursors.
C. Possession of Methamphetamine
Besides convicting Gallegos of manufacturing more than 400 grams of methamphetamine,
the jury also found Gallegos guilty of possession of more than 400 grams of methamphetamine. To
prove unlawful possession of methamphetamine, the State must show a person knowingly or
intentionally possessed the controlled substance. TEX . HEALTH & SAFETY CODE ANN . § 481.115.
In the case at bar, the State could establish an offense either by showing Gallegos acted on his own
or by showing Gallegos acted with the intent to promote or assist the offense by soliciting,
encouraging, directing, aiding, or attempting to aid another person in the commission of the offense.
TEX . PEN . CODE ANN . §§ 7.01, 7.02. “The mere presence at a place where contraband is being used
or possessed by others does not justify finding that a person is in joint possession or is a party to
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an offense.” Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet
ref’d).
Gallegos argues there is insufficient evidence to support his conviction for possession of
methamphetamine because there is no evidence linking him to the controlled substance seized from
Koch’s premises. This argument is essentially the same argument he raised to challenge his
conviction for possession of immediate precursors of methamphetamine. As discussed in our
disposition of Gallegos’s sufficiency complaint above, the record contains ample evidence linking
Gallegos to the contraband and other items seized by authorities. We therefore overrule Gallegos’s
sufficiency complaint for the same reasons discussed in our disposition of his complaint concerning
the sufficiency of the evidence linking him to the precursors of methamphetamine.
D. Possession of a Deadly Weapon
Gallegos contends the evidence is insufficient to support the finding that he used or exhibited
a deadly weapon during each offense. Evidence the appellant personally used or exhibited a deadly
weapon is not necessarily required when he is a party. Torres v. State, 233 S.W.3d 26, 30 (Tex.
App.—Houston [1st Dist.] 2007, no pet.). When, as here, the appellant is a party, evidence
demonstrating the appellant knew a deadly weapon would be used or exhibited is sufficient to support
a deadly weapon finding. Id.
In this case, the jury could conclude Gallegos was aware a deadly weapon would be used in
the commission of the offenses. The record shows Koch and Gallegos were engaged in
manufacturing and possessing contraband and that multiple firearms were located at the scene of the
illegal activities. Many of the weapons seized by police during the raid on Koch’s premises were
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visible to anyone entering the premises. The record further reveals Gallegos was in close proximity
to the weapons during his participation in the illegal activities, and that he was apprehended by police
in a bathroom where a rifle was located. Based on these circumstances, a trier of fact could rationally
conclude Gallegos knew of Koch’s intent to use the firearms to facilitate the commission of the
alleged offenses. Accordingly, we reject Gallegos’s sufficiency complaint.
DOUBLE JEOPARDY
At the conclusion of oral argument, we invited Gallegos to submit a post-submission brief
regarding a double jeopardy issue not raised below or in his original appellate briefing. Gallegos’s
post-submission brief asserted his convictions for manufacturing and possessing the same
methamphetamine violates double jeopardy principles. “[A] double jeopardy claim may be raised for
the first time on appeal . . . when the undisputed facts show the double jeopardy violation is clearly
apparent on the face of the record and when enforcement of usual rules of procedural default serves
no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). Any
double jeopardy violation in this case is not clearly apparent on the face of the record. As a result,
we decline to address Gallegos’s double jeopardy complaint on appeal.
CONCLUSION
Having considered the evidence in the light most favorable to the verdicts, we conclude a
rational trier of fact could have found Gallegos guilty of each of the offenses alleged in the
indictments. See Clayton, 235 S.W.3d at 778. Further, after reviewing the evidence in a neutral light,
we cannot say the evidence supporting these convictions is so obviously weak as to undermine
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confidence in the factfinder’s determination or is greatly outweighed by contrary proof. See Lancon
v. State, 253 S.W.3d at 705. Accordingly, the trial court’s judgments are affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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