John Paul Myers v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00489-CR
John Paul Myers, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
NO. 5753, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant John Paul Myers of three counts of possession and
manufacture of methamphetamine. See Tex. Health & Safety Code Ann. §§ 481.112(a), .115(a)
(West 2003). He was sentenced to serve thirty years in prison. In two issues, Myers contends
that the evidence was legally and factually insufficient to support a finding of guilt. We affirm the
district court’s judgment.
In 2005, the 33rd Judicial Narcotic Enforcement Team (NET) began
investigating Myers for possible narcotics activity. On April 1, 2005, the NET executed a search
warrant at Myers’s residence. Evidence was removed from Myers’s residence and sent to the
Texas Department of Public Safety Crime Lab for chemical analysis, where it was determined that
at least one of the samples seized contained more than 470 grams of methamphetamine, including
adulterants and dilutants. Myers’s written statement confirmed that the seized materials belonged
to him. In a three-count indictment, Myers was charged with possessing and manufacturing
methamphetamine. A jury found Myers guilty on all three counts, and Myers was sentenced to ten,
twenty, and thirty years in prison for counts one, two, and three, respectively, all to run concurrently.
Myers appeals, challenging the legal and factual sufficiency of the evidence to support the
jury’s verdict.
In a legal sufficiency review, we consider whether a rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State,
158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most
favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed
the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson
v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Shams v. State, 195 S.W.3d 346, 347
(Tex. App.—Austin 2006, pet. ref’d) (citing Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim.
App. 1981)).
In a factual sufficiency review, the evidence is reviewed in a neutral light. Roberts
v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). Evidence is factually insufficient (1) when
the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly
unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance
of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. An
appellate court must be appropriately deferential to the jury’s verdict, in order to avoid substituting
its own judgment for that of the fact-finder. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App.
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2002). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder.
King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
The jury found, as alleged in the indictment, that Myers possessed more than
400 grams of methamphetamine. Although Myers does not dispute that methamphetamine was
present in certain substances seized from his home, he does challenge the sufficiency of the evidence
to support the jury’s finding that at least one of the samples weighed more than 400 grams.
The term “controlled substance” describes various substances, including
methamphetamine, and includes “the aggregate weight of any mixture, solution, or other substance
containing a controlled substance.” Tex. Health & Safety Code Ann. § 481.002(5) (West Supp.
2008), § 481.102(6) (West 2003). An adulterant or dilutant is “any material that increases the bulk
or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled
substance.” Id. § 481.002(49).
The Texas Court of Criminal Appeals has interpreted the legislature’s definition of
“adulterant or dilutant” to include any substance that is added to the controlled substance at any time:
The literal meaning of the legislature’s adulterant and dilutant definition is that any
substance that is added to or mixed with a controlled substance, regardless of when,
how, or why that substance was added, may be added to the aggregate weight of the
controlled substance as an adulterant or dilutant.
Seals v. State, 187 S.W.3d 417, 420 (Tex. Crim. App. 2005).
Here, the record evidence includes the testimony of DPS chemist Joel Budge, who
tested the substances seized from Myers’s home. Budge testified that he tested the top layer of one
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of the samples and that the portion he tested contained methamphetamine and had an aggregate
weight of 470 grams.
Myers does not dispute the presence of methamphetamine in the sample, but
argues there is insufficient evidence of its weight. According to Myers, “Budge testified as to the
total weights he tested from the liquids which were leftovers from the chemical synthesis and not
part of any finished product.” Citing Cawthon v. State, 849 S.W.2d 346 (Tex. Crim. App. 1992),
Myers argues that, because the weight of the tested substance was not properly calculated, there was
no evidence to show that he manufactured or possessed methamphetamine in the amount alleged in
the indictment and submitted to the jury.
The definition of “adulterant or dilutant” set out in Cawthon and advanced by
Myers was superceded by the legislature’s later addition of an express definition for those terms.
See Tex. Health & Safety Code Ann. § 481.002(49); Seals, 187 S.W.3d at 420. The applicable
definition of the term allows for the inclusion of “any substance . . . , regardless of when, how, or
why that substance was added” to the aggregate weight of the controlled substance. Tex. Health &
Safety Code Ann. § 481.002(49); Seals, 187 S.W.3d at 420. Consequently, under the applicable
definition of the terms, whether the substance tested was a “finished product” or not, as Myers
contends, is irrelevant to our inquiry. The record evidence is both legally and factually sufficient to
support the jury’s finding that Myers was in possession of 400 grams or more of methamphetamine,
as alleged in the indictment. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509.
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Myers’s points of error are overruled, and the judgment of conviction is affirmed.
__________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Waldrop and Henson
Affirmed
Filed: February 27, 2009
Do Not Publish
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