Sloan v. State

738 S.W.2d 290, 1987 Tex. App. LEXIS 6635

• Court: Court of Appeals of Texas
• Decided: March 12, 1987
• Docket: No. 01-86-0116-CR
• Status: Published

Opinions

OPINION

DUGGAN, Justice.

A jury found the appellant guilty of possession of a controlled substance, methamphetamine. After the appellant pled true to two enhancement allegations, the trial court assessed his punishment at 45 years confinement. He asserts nine points of error.

On October 15, 1984, officers of the Houston Police Department, using a warrant obtained after surveillance of the property, searched the appellant’s house and a detached outbuilding and confiscated some 3,540.4 grams of substances containing a lesser amount of methamphetamine and one gram of methamphetamine in crys-talized form.

Police arrested the appellant’s co-defendant, Donald Wayne Engelking, in the detached building, as well as the appellant’s wife, who was in the house along with another person. Later, several miles away, officers arrested the appellant at a car dealership sales lot.

In three points of error, the appellant challenges the sufficiency of the evidence to support his conviction. We must review the evidence in the light most favorable to the verdict to determine if a rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Chambers v. State, 711 S.W.2d 240 (Tex.Crim.App.1986).

The State had the burden of proving that the appellant intentionally or knowingly possessed a controlled substance, namely methamphetamine, in an amount weighing at least 400 grams by aggregate weight, including any adulterants and dilutants. See Tex.Bev.Civ.Stat.Ann. art. 4476-15, secs. 4.04(a); 4.04(d)(2); 4.02(b)(6) (Vernon Supp.1987).

In his first point of error, the appellant asserts that the evidence is insufficient to show his possession. In order to show possession, the State must prove that the accused exercised care, control, and management over the contraband, and that he knew that the matter possessed was contraband. Rodriquez v. State, 635 S.W.2d 552 (Tex.Crim.App.1982); Wilkes v. State, 572 S.W.2d 538 (Tex.Crim.App.1978). The State’s burden is met by the introduction of additional facts and circumstances that affirmatively link the accused to the contraband and create a reasonable inference that he knew of the contraband’s existence and that he exercised control over it. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985). However, mere presence at a place prior to the commission of the alleged offense, or close proximity to the contraband itself, is insufficient absent additional independent facts and circumstances tending to show knowledge and control. Id.

The record reflects that Houston Police officers began surveillance of the appellant’s house and the outbuilding at around 2:00 a.m. At approximately 2:30 a.m., the appellant and his co-defendant were seen leaving the outbuilding and entering the house. The men returned to the outbuilding at approximately 6:00 a.m., and the appellant returned to the house sometime later. He was next seen leaving in his car around 7:30 a.m., and he was arrested shortly thereafter. During surveillance and while the appellant was inside the outbuilding, the officers heard noises and smelled an odor that they associated with methamphetamine production. The odor emanated from the outbuilding and reached them some 30 to 50 feet away. At about 10:30 a.m., the officers entered the outbuilding and arrested the co-defendant.

A subsequent search of the outbuilding produced containers of solutions containing methamphetamine and by-products of an intermediate stage in the manufacture of methamphetamines, as well as raw materials typically used for that purpose. The building appeared to be equipped and utilized as a laboratory.

The appellant’s neighbor testified that the appellant began occupying the house in August, and that he was seen there regularly until the time of the arrest. .The State also produced utility bills for electricity and gas for the residence in his name and offered a document, recovered from a table in the dwelling, bearing the appellant’s signature. There is no evidence that the outbuilding was supplied with separate utility connections or that it was a separate residence.

Officers positively identified the appellant as one of the two men seen leaving and reentering the outbuilding during the early morning hours at a time when the odor of methamphetamine production permeated the area, and they identified him again in the courtroom.

We conclude that the facts and circumstances “affirmatively link” the appellant to the controlled substance in such a manner to show sufficiently that he had knowledge of the contraband as well as control over it. McGoldrick v. State, 682 S.W.2d at 578, and to enable a rational factfinder to find him guilty of the alleged offense. The appellant’s first point of error is overruled.

In his second point of error, the appellant complains that the State’s proof is insufficient to show that he possessed 400 grams aggregate weight of a controlled substance. The appellant does not deny that the overall quantity of substances confiscated exceeds the amount alleged in the indictment, but claims that the other substances identified were neither an “adulterant” nor a “dilutant,” as defined by Tex.Rev.Civ.Stat.Ann. art. 4476-15, the Controlled Substances Act.

In addition to methamphetamine, the State’s chemist testified that he found phe-nyl-2-propanone (“P2P”), “meth oil,” and other components. A chemist for the defense found, in addition to P2P, a material “consistent with aluminum hydroxide,” as well as “wastewater from a clean-up of methamphetamine oil.”

Neither “adulterant” nor “dilutant” is defined in article 4476-15, and although some examples are listed under the definition of “drug paraphernalia,” Tex.Rev.Civ. Stat.Ann. art. 4476-15, sec. 1.02(14)(F), we do not find that the legislature intended this list to be all-inclusive. See McGlothin v. State, 705 S.W.2d 851 (Tex.App.—Fort Worth 1986, no pet.).

A “diluent” and a “dilutant” are functional equivalents. Webster’s New Collegiate Dictionary (1981). The chemist for the defense testified that a diluent is something added to a primary substance to increase its bulk, and the State’s chemist stated that a diluent would make a substance weaker. Under public health statutes, a drug is adulterated “if any substance has been (1) mixed or packed therewith so as to reduce its quality or strength; or (2) substituted wholly or in part therefor.” Tex.Rev.Civ.Stat.Ann. art. 4476-5, sec. 15(d) (Vernon Supp.1987).

We note as well that “ ‘controlled substance’ means a drug, substance, or its immediate precursor_” Tex.Rev.Civ. Stat.Ann. art. 4476-15, sec. 1.02(4) (emphasis added). “Immediate precursor” is defined as “a substance ... which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance ...” Tex.Rev.Civ. Stat.Ann. art. 4476-15, sec. 1.02(18). Both chemists testified that P2P was used to manufacture methamphetamine.

We conclude that the evidence was such that a rational jury could find the requisite methamphetamine in 400 grams aggregate weight, including adulterants and dilutants, and we overrule the appellant’s second point of error.

The appellant’s fifth point of error asserts that the State’s proof was insufficient to show an intent to possess or to adulterate or dilute. The State’s indictment alleged that the appellant intentionally and knowingly possessed a controlled substance of 400 grams in aggregate weight including adulterants and dilutants. It did not allege that the appellant intentionally and knowingly adulterated or diluted the controlled substance; thus the State is not required to prove such conduct.

A significant quantity of substances was confiscated during a search of an outbuilding at the appellant’s residence. Chemists for the State and the defense testified that these solutions contained methamphetamine and other substances that are by-products from the manufacture of methamphetamine. In addition, raw materials and lab equipment typically used for that purpose were found in the outbuilding. The work occurred in the early morning hours and in secrecy. The odor of that production was distinctive. The appellant was seen leaving and returning to the outbuilding at a time when this work was being carried out.

We find that the evidence was sufficient to show that the appellant knew that a controlled substance was being produced at his residence and that he had the requisite intent to possess the same. Accordingly, the appellant’s fifth point of error is overruled.

In his third point of error, the appellant maintains that the trial court erred in failing to charge the jury on his definition of “adulterants” and “dilutants” or “dilu-ents.”

The appellant sought a charge derived from the definition of “drug paraphernalia,” which defines a diluent or an adulterant as “quinine hydrochloride, man-nitol, mannite, dextrose, or lactose, used or intended for use in cutting a controlled substance.” Tex.Rev.Civ.Stat.Ann. art. 4476-15, sec. 1.02(14)(F). Expert witnesses testified that the particular chemicals listed in sec. 1.02 and in the appellant’s requested charge, were not identified in the confiscated contraband. The requested definition, therefore, would not aid the jury in deciding the fact issues. Guerrero v. State, 487 S.W.2d 729 (Tex.Crim.App.1972). This is also not a case where either the evidence of an affirmative defense or a direct statutory definition required the court to submit the appellant’s definition. Sanders v. State, 707 S.W.2d 78 (Tex.Crim.App.1986); Penny v. State, 691 S.W.2d 636, 653-654 (Tex.Crim.App.1985). The trial court properly refused the requested charge, and the appellant’s third point of error is overruled.

In his fourth point of error, the appellant urges that Tex.Rev.Civ.Stat.Ann. art. 4476-15, the Controlled Substances Act, is unconstitutionally void for vagueness due to its failure to define and/or mention adulterants and dilutants or dilu-ents in the schedules for penalty groups.¹

Statutes are vested with a presumption of validity, and we must construe them in such a way as to uphold their constitutionality. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979). In the absence of special definitions, statutory language under attack as vague can be measured by common understanding and practices, or construed in a sense generally understood. Id. To be unconstitutionally void for vagueness, a statute must either forbid or require the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its applications, Ely, 582 S.W.2d at 419; Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), or it must allow the possibility of arbitrary and discriminatory enforcement. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).

We find that the statute gives ample notice of the conduct forbidden in the alleged offense, viz., possession of a controlled substance, methamphetamine. The appellant’s fourth point of error is overruled.

In points of error six through nine, the appellant complains that the trial court erred in overruling his objections to the prosecutor’s improper arguments, which he asserts urged the jury to ignore its oath and find the appellant guilty of criminal conduct not alleged in the indictment. The complained of remarks referred to the presence of a methamphetamine lab, the manufacture of methamphetamine, which was not alleged as an offense, and the prosecutor’s congratulations to officers for doing a good job in closing down a methamphetamine lab.

Proper jury argument is confined to four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to argument of opposing counsel; and (4) a plea for law enforcement. Todd v. State, 598 S.W.2d 286, 296-97 (Tex.Crim.App.1980). To constitute reversible error, improper argument must, in light of the record as a whole, be either extreme or manifestly improper, violate a mandatory statute, or inject new facts that are harmful to the accused. Dickinson v. State, 685 S.W.2d 320, 322 (Tex. Crim.App.1984).

In each instance, we find that the arguments violated no statute, injected no new facts, and were neither extreme nor manifestly improper, but fell within the parameters of permitted argument as reasonable deductions from the evidence. Denison v. State, 651 S.W.2d 754 (Tex.Crim.App.1983).

The appellant’s points of error six through nine are overruled.

The judgment is affirmed.

LEVY, J., dissents.

1 . Article 4476-15, sec. 4.04 provides in relevant part that if:

(a) ... a person commits an offense if he knowingly or intentionally possesses a controlled substance in Penalty Group 1 ...

(c) ... and the amount of the controlled substance possessed is by aggregate weight, including any adulterants or dilulants 28 grams or more ... [the offense would be] (d)(2) punishable by confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than ten years, and a fine not to exceed $100,000, if the amount of the controlled substance possessed is, by aggregate weight, including any adulterants or dilutants, 400 grams or more.