James David Keyser v. State ( 2006 )

Opinion filed February 2, 2006

Opinion filed February 2, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00219-CR

                                                    __________

                                  JAMES DAVID KEYSER, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 91st District Court

                                                        Eastland County, Texas

                                                   Trial Court Cause No. 19,887

                                                                   O P I N I O N

The jury convicted James David Keyser of manufacturing four or more grams but less than 200 grams of methamphetamine.  The jury sentenced appellant to eighty years confinement and a $2,500 fine.  We affirm.

In his first point of error, appellant argues that the evidence is legally insufficient to support his conviction.  In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).

Deputy Robert Rains, with the Eastland County Sheriff=s Office, testified that on September 14, 2001, he was assigned as a narcotics investigator to the drug task force.  On that day, the Cisco Police Department called Deputy Rains to assist in investigating a strong smell of ether coming from a residence.  Deputy Rains noted that ether is used in the manufacture of methamphetamine.   Deputy Rains explained in detail to the jury the process of manufacturing methamphetamine.  Deputy Rains testified that, when ephedrine or pseudoephedrine is combined with anhydrous ammonia and lithium, it instantly becomes methamphetamine, although it is not the finished product.  Deputy Rains described the  process of getting the methamphetamine to the finished product.

Deputy Rains stated that, when he and the officer arrived at the residence, he could smell ether. Deputy Rains received permission to look around the residence, and he found appellant underneath a pickup. Deputy Rains testified that several items were found at the residence that were consistent with the manufacture of methamphetamine, including camp fuel, starting fluid cans, a blender, muriatic acid, and parts of lithium batteries.   Deputy Rains also testified that he found a mason jar containing some liquid at the residence.  The liquid in the jar was determined to contain methamphetamine.

Chief Larry Weikel, with the Cisco Police Department, testified that appellant gave a written statement at the police station.  Chief Weikel read the statement to the jury.  In the statement, appellant admitted that he had tried on three occasions to make methamphetamine.  Appellant stated that he was in the process of making methamphetamine when the police arrived on September 14, 2001.  Appellant described the process he was using to make the methamphetamine.

Appellant specifically argues that the evidence is legally insufficient to show that the amount of methamphetamine manufactured was in an amount greater than one gram. Appellant contends that the State was required to prove that any adulterants or dilutants were intended to add to the bulk  or quantity of the final product citing Cawthon v. State, 849 S.W.2d 346 (Tex. Crim. App. 1992), as authority.  In Cawthon, the court held that, when adulterants and dilutants constitute a part of the weight utilized to increase punishment, the State must prove beyond a reasonable doubt (1) the identity of the named illegal substance, (2) that the added remainder (adulterants and/or dilutants) has not affected the chemical activity of the named illegal substance, (3) that the remainder (adulterants and/or dilutants) was added to the named illegal substance with the intent to increase the bulk or quantity of the final product, and (4) the weight of the illegal substance including any adulterants and/or dilutants.  Cawthon, 849 S.W.2d at 348-49.

Appellant acknowledges that, after the court=s decision in Cawthon, the legislature amended the definition of Acontrolled substance@ and added the definition of Aadulterant or dilutant.@  Tex. Health & Safety Code Ann. ' 481.002(5) (Vernon Supp. 2005) currently defines A[c]ontrolled substance@ as:

[A] substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Groups 1, 1‑A, or 2 through 4.  The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.

Tex. Health & Safety Code Ann. ' 481.002(49) (Vernon Supp. 2005) defines an A[a]dulterant or dilutant@ as any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance.  Appellant argues that not-withstanding the current definitions, the State was still required to prove that any adulterants or dilutants were intended to add to the bulk or quantity of the final product.  We disagree.

Under the new Health and Safety Code definition, the State is no longer required to determine the amount of controlled substance and the amount of adulterant and dilutant that constitute the mixture.  Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003).  The State has to prove only that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equals the alleged minimum weight.  Melton, 120 S.W.3d at 344.  William L. Todson, a criminalist with the Department of Public Safety, testified that the total weight of liquid in the jar recovered from the scene weighed 13.11 grams.  Todson stated that the liquid contained methamphetamine.  The evidence is legally sufficient to support appellant=s conviction.  Appellant=s first point of error is overruled.

In his second point of error, appellant argues that the trial court erred in its charge to the jury.  Appellant was charged with the offense of manufacturing methamphetamine.  The trial court=s proposed charge included a charge on the offense of possession of methamphetamine.  The State objected to including the lesser offense of possession of methamphetamine, and the trial court sustained the State=s objection.  Appellant argues that Ait is impossible to prove manufacture of the controlled substance without showing possession.@

            A trial court must submit a jury instruction on a lesser included offense if the offense is included within the proof necessary to establish the offense charged and if there is some evidence in the record Athat would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.@ Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997);  Rousseau v. State, 855 S.W.2d 666, 672‑73 (Tex. Crim. App. 1993).  Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981) provides that an offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

In Hardie v. State, 79 S.W.3d 625 (Tex. App.CWaco 2002, pet. ref=d), the court compared the elements of possession of methamphetamine to those of manufacturing methamphetamine and found that the offenses do not share any common elements.  The court found, therefore, that possession of methamphetamine is not a lesser included offense of manufacturing methamphetamine.  Hardie, 79 S.W.3d at 631.

The court stated that the elements of possession of methamphetamine are:  (1) the exercise of actual care, control, or custody of the substance; (2) a conscious connection to the substance; and (3) knowingly or intentionally possessing the substance.   Hardie, 79 S.W.3d at 631.  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.  Tex. Health & Safety Code Ann. ' 481.002(25) (Vernon Supp. 2005).  In Hardie, the court stated that, to support a conviction for manufacturing methamphetamine, the State must show (1) manufacturing methamphetamine at the time of arrest and (2) the aggregate weight of the controlled substance including adulterants and dilutants.  Hardie, 79 S.W.3d at 631.

We agree that the offenses of possession of methamphetamine and manufacturing methamphetamine do not share any common elements.  Therefore, the trial court did not err in sustaining the State=s objection to the charge on the lesser included offense.  Appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

February 2, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.