Weston Lloyd Carthen v. State ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Weston Lloyd Carthen

Appellant

Vs.                   No. 11-04-00151-CR -- Appeal from Palo Pinto County

State of Texas

Appellee

Weston Lloyd Carthen appeals his conviction by a jury of the offense of manufacturing a controlled substance, methamphetamine, in an amount of 400 grams or more.  The jury assessed his punishment at 65 years in the Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000.  In two issues, Carthen asserts that the evidence is legally and factually insufficient to support the determination that he engaged in the manufacture of a controlled substance and that the trial court=s actions during trial are indicative of bias resulting in the denial of his right to an impartial tribunal.  We affirm.

Carthen contends in Issue One that the evidence is legally and factually insufficient to support the determination that he engaged in the manufacture of a controlled substance. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a 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).  In a factual sufficiency review, we view all of the evidence in a neutral light; and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.  Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004).

Freddie Gonzales testified that he is a constable for Palo Pinto County.  He indicated that on April 3, 2003, having previously served an eviction notice on Carthen, he went to Carthen=s residence at 305 Tournament to see how far along he was to moving out.  He stated that it took Carthen about a couple of minutes to get to the door.  He said that he detected the smell of ether, which he knew to be a method of Acooking@ methamphetamine.

Constable Gonzales testified that, after stepping inside the residence, he noticed some containers against the east wall of the living room.  He indicated that there was a red water cooler in the living room floor. He said it appeared that no furniture had been moved out.  He stated that Carthen said, AWe=re moving, we=re putting our stuff out.@

Constable Gonzales related that, after he could not secure backup at that time, he left and returned to the residence with another officer about 45 minutes to one hour later.  He testified that, after calling the sheriff=s office for assistance, Deputy McCurtain came to the residence.  He stated that, when they tried to open one of the containers in the residence, it started spewing because it was under pressure.

Constable Gonzales testified that Carthen was at the residence and occupied the residence. He said that, based upon what he saw in the residence, he had no doubt that Carthen was manufacturing methamphetamine.

Doug Wood testified that he is a lieutenant in the Narcotics Service of the Texas Department of Public Safety.  He indicated that on April 3, 2003, he was involved in an investigation of the manufacture of methamphetamine at 305 Tournament.  He identified Carthen as the person who occupied the residence.  He related that, when he arrived at the residence on that evening, it appeared that there was an eviction going on because there was a lot of property in the front yard.  He said that he could mostly smell the odor of ether at that location. According to Lieutenant Wood, that odor meant that somebody had been manufacturing methamphetamine at that location.

Lieutenant Wood testified that pump-up sprayers found at the residence were an indication of the manufacturing process.  He asserted that they were used as a generator of hydrochloric gas.  He named the two ingredients that are put into such sprayers to produce the gas.  He also cited coffee filters, buckets, Drano (a drain opener), and a sprayer mask as further examples of items used in manufacturing methamphetamine.

Lieutenant Wood then elaborated on the ingredients and the process by which methamphetamine is manufactured.  While we feel that it would be imprudent to detail the manufacturing process here, it appears to involve a combination of extraction and chemical synthesis because it involves a combination of chemicals, from which certain resulting chemicals are extracted to produce the methamphetamine.  Lieutenant Wood testified that there was no doubt in his mind that the process of manufacturing methamphetamine by a combination of extraction and chemical synthesis had taken place at the residence. 

On cross-examination, Lieutenant Wood confirmed that a brown substance in the water cooler was found to contain methamphetamine.  Lieutenant Wood acknowledged that he did not see any ammonia or ammonia containers and that he could not remember if there were any lithium batteries.  Ammonia and lithium batteries were two of the ingredients he had earlier mentioned as those used in the manufacturing process.  Acknowledging that manufacturers of methamphetamine use starter fluid in the process, he stated that he did not find any containers of such fluid.  He also acknowledged that he did not see any Abones,@ a sludge-type substance that results at a certain stage of the manufacturing process.  He said that he did not see Carthen on this occasion.

Darla Dowell testified that she is employed in the Narcotics Service of the Texas Department of Public Safety.  She indicated that she became involved in the investigation at 305 Tournament in Mineral Wells on April 3, 2003.  She said that, when she arrived at the scene, she saw things consistent with a methamphetamine lab.  She identified several common items found at the scene and testified concerning their use in the process of manufacturing methamphetamine.  One of the items mentioned was pseudoephedrine tablets, which she identified as an ingredient in the manufacture of methamphetamine.  She testified that the liquid tested by the Department of Public Safety laboratory contained over three kilograms of methamphetamine.  Officer Dowell ac-knowledged that she found no evidence of lithium batteries or any evidence of ammonia.  She also said that she did not find any containers with ether or starter fluid in them. Officer Dowell also elaborated on the manufacturing process.

William Chandley testified that he is a forensic chemist with the Texas Department of Public Safety crime laboratory in Abilene.  He testified that the liquid provided to him from Officer Dowell that she identified as coming from the residence weighed 3.01 kilograms.  He said that he performed a litmus test that indicated Ait=s probably the anhydrous ammonia lithium process for reducing pseudoephedrine to methamphetamine.@ He indicated that, after testing the material, he formed an opinion that the substance contained methamphetamine. He confirmed that 3.01 kilograms weighs more than 400 grams.  He also confirmed that the contents of the liquid were consistent with being used in the process of manufacturing a controlled substance by a combination of extraction and chemical synthesis.

Carthen testified that he formerly lived at the residence at 305 Tournament.  He said that he first lived there with his mother and little brother Ricky Lance Carthen.  He indicated that his mother was no longer there in November 2002.  He stated that he lived there until mid-March of 2003 but moved out because he wanted to change his lifestyle and straighten out his life.  He insisted that Ricky was using a little bit of drugs but was not involved in it like he was.  Carthen acknowledged giving statements to Officer Dowell and Officer John Waigt.

Carthen testified that, after moving out, he stayed at his ex-wife=s house and then at a friend=s house for a couple of days before moving in with his girlfriend Alethia.  He indicated that he had moved everything from the residence on Tournament that he wanted to keep.  He insisted that he had not lived in or been in the residence for two weeks.  He acknowledged that he had admitted to Officers Dowell and Waigt that he had manufactured drugs in the past, but he insisted that he did not manufacture the drugs that were found in the Tournament Lane residence.  He said that he had never seen the brown liquid that was identified in court as containing methamphetamine nor had he noticed the red cooler sitting in the house on the day in question.  He said that he was at the residence that day just picking up odds and ends, things he wanted to keep.  Based upon his experience in manufacturing methamphetamine, Carthen indicated that powdered-out methamphetamine could not be produced from the brown liquid.  He said that the house was unlocked most of the time and that a so-called friend or acquaintance had a key.  He said that his friend used to cook dope.

Carthen denied smelling any ether when Constable Gonzales came to the house.  He indicated that he did not remember seeing the canisters along the wall or the red one in the middle of the room.  He insisted that the pseudoephedrine tablets Officer Dowell had found were not usable for manufacturing methamphetamine because they contained acetaminophen and were not just pseudoephedrine hydrochloride.  He acknowledged, in a written statement he gave on May 28, 2003, that he said that the last cook he had done was Atwo weeks ago.@  He insisted that he should have said Atwo months.@

Brandy Brock, Carthen=s ex-wife, testified that Carthen came and stayed with her and her family in April 2003.  She said that he talked about changing his life.  She denied that Carthen went anywhere between April 1 and April 4, other than her house and a house at a location other than Tournament Lane.

Considering all of the evidence, we hold that the evidence is legally and factually sufficient to support Carthen=s conviction for manufacturing methamphetamine.  See Gish v. State, 606 S.W.2d 883, 886-87 (Tex.Cr.App.1980); Lindley v. State, 736 S.W.2d 267, 273 (Tex.App. - Fort Worth 1987, pet=n ref=d untimely filed).  Carthen argues that the evidence is insufficient to show that he manufactured the methamphetamine contained in the brown liquid found at his residence or that he manufactured it by extraction or chemical synthesis.  We note that on April 3, 2003, there was a smell of ether at Carthen=s residence, which witnesses indicated was part of the process of manufacturing methamphetamine.  Witnesses expressed their opinion that the manufacturing of methamphetamine was occurring at the residence.  At least two witnesses testified that the manufacturing of methamphetamine occurring was by a combination of extraction and chemical synthesis.  Carthen admitted to manufacturing methamphetamine numerous times, including one time after he had supposedly cleaned up his life.  Although Carthen denied that he manufactured the methamphetamine that was in his presence at his residence on April 3, 2003, or even that he was residing where the drug was found, the jury was free to disbelieve his testimony.

Carthen suggests that the evidence is insufficient because it merely shows his presence at a drug laboratory, citing the case of Green v. State, 930 S.W.2d 655, 657 (Tex.App. - Fort Worth 1996, pet=n ref=d).  As stated in Green, although an accused=s mere presence at the scene of a drug laboratory is insufficient to support a conviction for drug manufacturing, it is a circumstance tending to prove guilt that, when combined with other facts, shows that the accused was a participant in the manufacturing.  Id.  In this case, the fact that the drug laboratory was on Carthen=s premises and the fact that he was present there at a time when there was a smell of ether as well as the other facts noted above are sufficient to establish Carthen=s guilt.  We do not find Green to be inconsistent with our opinion.  While Carthen urges that the evidence is uncontroverted that he had not been to the property for a long time and had returned only briefly to gather his belongings and leave, the jury was not required to believe his testimony.  There was other evidence from which a reasonable juror could have determined that Carthen was in possession and control of the premises, that he still resided there, and that he was involved in the manufacture of the methamphetamine found at that location.  Carthen suggests that his possession of the water cooler containing the methamphetamine that had been manufactured was not sufficient by itself to support his conviction. He presents no authority for that suggestion.  Even if that were true, like his presence at a drug laboratory, it is certainly a circumstance that, when considered with the other evidence, is indicative of his guilt. We overrule Issue One.

Carthen urges in Issue Two that the trial court=s actions during trial are indicative of bias so that he has been denied his due process right to an impartial trial.  In view of the fact that he gives us no example of anything the trial court said or did that could be considered indicative of bias, we overrule Issue Two.

The judgment is affirmed.

PER CURIAM

August 18, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, J., and

McCall, J., and Hill, J.^[1]

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^[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.