David Eric Kinder v. State

Opinion filed February 28, 2014
In The
Eleventh Court of Appeals
__________
No. 11-12-00061-CR
__________
DAVID ERIC KINDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 90th District Court
Stephens County, Texas
Trial Court Cause No. F32989
MEMORANDUM OPINION
The jury convicted Appellant, David Eric Kinder, of the offense of manu-
facturing a controlled substance, methamphetamine, of four grams or more but less
than two hundred grams. Upon Appellant’s plea of true to the enhancement
allegation, the jury assessed his punishment at confinement for fifty years and a
$10,000 fine, and the trial court sentenced him accordingly. In two issues,
Appellant challenges the sufficiency of the evidence and the trial court’s denial of
his motion for mistrial. We affirm.
Background Facts
Deputy Don R. Braly of the Stephens County Sheriff’s Office received a tip
from a citizen that a crime was being committed. Based on the tip, Deputy Braly
went to Hubbard Creek Reservoir, where he found a pickup with a boat trailer in
the parking lot near the boat ramp. Deputy Braly checked the license plate and
found that the pickup was registered to Appellant. The boat trailer did not have a
license plate. Deputy Braly moved his vehicle to a nearby park to watch the
pickup. He eventually spotted two people in a small boat enter the area without
any lights. The people loaded the boat onto the trailer, got in the pickup, and
began to drive away. Deputy Braly and another deputy drove toward the boat
ramp to conduct a traffic stop of the pickup.
Deputy Braly testified that he approached the pickup and activated his lights.
Initially, the driver of the pickup did not stop. Instead, the driver continued out of
the boat ramp area and turned right onto County Road 221. The driver then
stopped the pickup. As Deputy Braly approached the pickup to contact the driver,
he smelled a strong chemical odor that he did not associate with fishing or lake
activities. Deputy Braly identified Appellant as the driver of the pickup and Jesse
Dan Cates as the passenger. When Deputy Braly asked Appellant what they were
doing out on the lake at night without any lights on the boat, Appellant claimed
that they were “looking for lost goats.” When asked about the items that were in
the boat, Appellant explained that he had some junk in the boat, as well as some
items that he and Cates had picked up along the shore. Deputy Braly noticed that a
cooler in the boat had some frost around the bottom of it and that a gas can in the
boat did not have a lid. He also noticed a wooden spoon in the boat that had some
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sort of dried chemical on it. Deputy Braly saw what he believed was the gas can
lid, and it was attached to clear plastic tubing, which was taped to a blue stick.
Deputy Braly contacted Game Warden Ed Russell, who arrived and ticketed
Appellant for the offenses of operating a boat without proper lights and operating
an unregistered motorboat. At that time, Officer Russell smelled a strong odor of
ether, which he associated with “clandestine methamphetamine labs.” He
explained that, in his experience, “people throw things out of their vehicle that they
don’t want to get caught with,” so he walked down County Road 221 toward the
boat ramp. Officer Russell discovered some items in the grass near the roadway.
He found a plastic Wal-Mart bag with a receipt attached to the bag, clear plastic
tubing with black electrical tape on one end, and “a plastic bottle that was
blackened somehow.” The plastic bottle, which was identified as a Gatorade
bottle, was located about seventy-five or eighty yards away from where Appellant
stopped his pickup.
Officer Russell contacted George William Wade III, the chief deputy at that
time, and secured the scene until Deputy Wade arrived. Deputy Wade conducted a
field test of the substance inside the blackened bottle. Appellant and Cates were
arrested, and the evidence was seized. Deputy Braly took several items to the
Department of Public Safety laboratory for testing, including the wooden spoon
and the blackened bottle. Laboratory tests confirmed that the bottle contained
150.99 grams of methamphetamine.
Sufficiency of the Evidence
On two grounds, Appellant challenges the sufficiency of the evidence to
support his conviction for manufacturing methamphetamine. We review a suffi-
ciency of the evidence issue under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010,
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pet. ref’d). Under the Jackson standard, we 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 elements of the offense beyond a reasonable doubt. Jackson, 443
U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We
defer to the jury’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When
the record supports conflicting inferences, we presume that the factfinder resolved
the conflicts in favor of the prosecution and defer to that determination. Jackson,
443 U.S. at 326; Clayton, 235 S.W.3d at 778.
Appellant’s first complaint regarding the sufficiency of the evidence is
confined to the issue of identity: he argues that the evidence was insufficient to
support the jury’s finding that he was the one who manufactured the
methamphetamine that was found in the blackened plastic bottle. Appellant
challenges the links connecting him to the blackened bottle that was found on the
ground seventy-five to eighty yards away from where the traffic stop occurred.
The State argues that it sufficiently connected Appellant to the methamphetamine
due to the close proximity of the bottle, Appellant’s possession of other
contraband, and the strong odor of ammonia and ether coming from the boat.
A person who knowingly manufactures a controlled substance commits an
offense. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2010). When the
accused is not in exclusive possession of the place where the substance is found, it
cannot be concluded that the accused had knowledge of and control over the
contraband unless there are additional independent facts and circumstances that
link the accused to the contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex.
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Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.
2005). Courts have recognized a number of factors that may link an accused to
contraband, including, among others, whether (1) the accused was present where
the contraband was found; (2) the contraband was in plain view; (3) the accused
was in close proximity to and could access the contraband; (4) the accused
possessed other contraband; (5) the accused made incriminating statements,
attempted to flee, or made furtive gestures; (6) there was an odor of drugs; (7) the
accused had a right to possess the place where the contraband was found; (8) the
contraband was in an enclosed place; (9) the amount of drugs was significant;
(10) the accused possessed weapons or large amounts of cash; and (11) the conduct
of the accused indicated consciousness of guilt. See Evans, 202 S.W.3d at 162
n.12. The number of factors present is not as important as the logical force or the
degree to which the factors, alone or in combination, tend to link the accused to the
contraband. Isham v. State, 258 S.W.3d 244, 249 (Tex. App.—Eastland 2008, pet.
ref’d).
Appellant concedes that the wooden spoon found in his boat had a trace
amount of methamphetamine on it. However, the spoon was not the only evidence
that linked him to the blackened bottle. In addition to the wooden spoon, officers
found several other items in Appellant’s boat that were consistent with a mobile
methamphetamine laboratory: a five-gallon gas can without its lid that was
emitting a strong odor, an orange and white water cooler containing dry ice, two
plastic Gatorade bottles, a can of sewer line cleaner, a can of starter fluid, and a
blue stick with clear plastic tubing taped to it with black electrical tape.
Deputy Braly found the lid to the gas can, which had clear plastic tubing attached
to it. An orange cap was attached to the blue stick. Detective Wade testified that
the orange cap looked like a cap from a plastic Gatorade bottle. The tubing was
secured to the pole with black electrical tape.
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Although Appellant claimed that he picked up the items from the shore, the
evidence also supports a conclusion that the items were part of a “clandestine
methamphetamine lab.” To prove the offense of 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 manufacturing. Isham, 258
S.W.3d at 248; East v. State, 722 S.W.2d 170, 172 (Tex. App.—Fort Worth 1986,
pet. ref’d). This requirement is intended to protect an innocent bystander who
inadvertently happens onto a methamphetamine lab. Isham, 258 S.W.3d at 248.
Although mere presence at a drug laboratory is insufficient to support a conviction
for 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.
Webb v. State, 275 S.W.3d 22, 27 (Tex. App.—San Antonio 2008, no pet.).
When officers searched Appellant’s pickup, they found a sack of fertilizer
and a can of Prestone Starter Fluid. Testimony at trial showed that starter fluid is
one of the main components when making methamphetamine because it contains
ether and that fertilizer, lye or drain cleaner, and dry ice can be used to make
anhydrous ammonia. Officers found a roll of black electrical tape that was similar
to the tape securing the plastic tubing to the blue stick. Officers also found a roll
of black electrical tape on Appellant’s person when he was booked into jail.
Receipts found in Appellant’s pickup reflected the purchase of two rolls of
electrical tape and dry ice at an Abilene Wal-Mart five days before the offense.
Officers also found a receipt for a wooden spoon that was purchased on the date of
the offense.
Additionally, there was evidence showing that Appellant had recently
purchased an inordinate amount of cold medicine containing pseudoephedrine,
which is an ingredient used to manufacture methamphetamine. The record shows
that Appellant and his passenger, Cates, had purchased cold medicine from several
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local pharmacies in the months before Appellant’s arrest. Appellant purchased
twenty-nine boxes of cold medicine from Wal-Mart pharmacies in November 2009
and seventeen boxes in December 2009. On December 26, 2009, Appellant
purchased a box of cold medicine from the CVS in Breckenridge at 2:46 p.m., two
boxes from the Wal-Mart in Graham an hour later, and another box at the Wal-
Mart in Breckenridge at 5:22 p.m. That same day, Cates purchased two boxes of
cold medicine from the Wal-Mart in Breckenridge at 5:06 p.m. and another box
from the CVS in Breckenridge at 5:18 p.m. In January 2010, Appellant purchased
two boxes at the Wal-Mart in Abilene, two boxes from the Wal-Mart in Mineral
Wells, two boxes from the Wal-Mart in Breckenridge, two boxes at the Wal-Mart
in Graham on two separate occasions, and two boxes at the Wal-Mart in Eastland.
In addition to the evidence showing that Appellant had the equipment and
ingredients necessary to manufacture methamphetamine, officers linked the items
that were found near the blackened Gatorade bottle to Appellant. The Wal-Mart
bag that Officer Russell found was about forty or fifty yards from where the traffic
stop of Appellant occurred, and it contained a box of ammunition. Attached to the
bag was a receipt for that purchase. Officers obtained surveillance footage from
the store matching the date and time reflected on the receipt. The footage showed
that Appellant purchased the ammunition. About fifteen yards from the Wal-Mart
bag, Officer Russell discovered plastic tubing with black electrical tape on one
end. About fifteen yards further, Officer Russell discovered the blackened bottle.
There was testimony at trial that the black electrical tape and the plastic tubing
were similar to the tape and the tubing found on the boat and found in Appellant’s
pickup, and officers also found a roll of black electrical tape when Appellant was
booked into jail.
The evidence was sufficient to establish that Appellant was not merely an
innocent bystander who was stopped coincidentally near a bottle containing
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methamphetamine. See Isham, 258 S.W.3d at 248. The fact that Appellant and his
passenger had recently purchased the ingredients and possessed most of the
equipment necessary for manufacturing methamphetamine is inconsistent with the
notion that Appellant was merely in the wrong place at the wrong time. Appellant
urges us to consider that the bottle was found in a public area and “75 to 80 yards
away” from the location of the traffic stop. Despite the distance between
Appellant and the bottle, we hold that, when the evidence linking Appellant to the
bottle is viewed in the light most favorable to the verdict, a rational juror could
have found beyond a reasonable doubt that Appellant manufactured the
methamphetamine contained in the bottle.
In his second challenge to the sufficiency of the evidence, Appellant argues
that there was no evidence that he manufactured more than four grams of
methamphetamine. Appellant argues, “There was also a failure of proof in that
there was no proof that the contents of the black plastic bottle were the same
contents tested by the laboratory chemist.” We note that Appellant did not
challenge the admissibility of the test results at trial and said “[n]o objection” when
it was offered into evidence. He contends that this is not a “mere chain of custody
argument” and that the lack of proof that the substance tested was the substance
found in the blackened bottle “created a fatal variance.”
The State presented extensive testimony that established the chain of
custody of the substance found in the Gatorade bottle. Appellant does not explain
why he believes there was no proof that the chemicals tested were those found in
the blackened Gatorade bottle. Appellant apparently refers to the testimony of
Herman Carrell, the forensic scientist, who agreed on cross-examination that he
could not tie what he tested “to a specific piece of evidence submitted” through his
own personal knowledge because he was not the evidence technician who received
the evidence. When asked if, “for all you know[,] [the substance tested] could
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have come from, say, a bottle of -- an empty coke bottle that was filled with liquid
on the side of the road,” Carrell explained that he can only rely on the information
written “on the submission form that came from the officer at the date and time
that it was received into the laboratory.”
As stated above, we 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
elements of the offense beyond a reasonable doubt. Isassi, 330 S.W.3d at 638. As
a condition precedent to admissibility, there must be “evidence sufficient to
support a finding that the matter in question is what its proponent claims” it to be.
TEX. R. EVID. 901(a). Testimony that establishes “the beginning and the end of the
chain of custody, particularly when the chain ends at a laboratory,” sufficiently
authenticates the item for purposes of admissibility. Martinez v. State, 186 S.W.3d
59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). A trial court does not
abuse its discretion in admitting evidence when it “reasonably believes that a
reasonable juror could find that the evidence has been authenticated or identified.”
Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). Unless someone
alleges tampering or fraud, the gaps in the chain of custody affect the weight to be
given the evidence. Id. at 503–04.
Officer Russell walked down County Road 221 toward the boat ramp, and
when he found the blackened Gatorade bottle and other items, he contacted Deputy
Wade and secured the scene. Deputy Wade testified that he seized the blackened
Gatorade bottle, and he identified the bottle from a picture at trial. Deputy Wade
conducted a field test of the substance inside the blackened bottle. Deputy Wade
testified that, after securing the seized evidence, he transported it to the Stephens
County Sheriff’s Office, where he and Deputy Braly placed it into the evidence
vault.
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Deputy Braly later removed the exhibits, completed a laboratory submission
form, and took the items to the DPS laboratory for testing. The form reflected four
itemized exhibits: (1) the wooden spoon, (2) the gas can, (3) the orange and white
water cooler, and (4) a “[c]ontainer with liquid and substance” that was found
“[o]n the ground off of CR 221.” Because he did not submit the gas can for
analysis, Deputy Braly drew a line through that item. Detective Braly told the jury
that the laboratory technician took the substance out of the water cooler and placed
it into a plastic bag.
Carrell testified that the laboratory technician assigns a unique number when
the evidence is received. In this case, the evidence was marked with the number
L4A-68702. Carrell testified that, before he tested the evidence, he conducted an
inventory of the exhibits and compared it to the items listed on the submission
form “to make sure that what’s listed on the submission form is actually what [he
has] to analyze.” Carrell testified that he labeled the three items he tested as 1A,
1B, and 1C. Exhibit 1C corresponded to the last item listed on the submission
form. When Carrell tested the substance contained in Exhibit 1C, it was in a
laboratory bottle that was marked as “Ex. 1C” and identified as L4A-68702. He
told the jury that Exhibit 1C contained 150.99 grams of methamphetamine.
Although Carrell could not say, based on his own personal knowledge, that
the substance contained in the laboratory bottle was the same substance that had
been contained in the blackened Gatorade bottle, he testified that it was consistent
for the lab tech to put certain types of substances into laboratory containers instead
of the container in which it arrived. Carrell explained that, when “certain items are
brought to [the lab] and they are not safe or they are not properly put into
containers that would keep [accidents from] happening, they will put them in
laboratory containers at that time.” Carrell explained that “[t]here are corrosive
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substances in the use of manufacturing methamphetamine” and that the
laboratory’s “Nalgene bottles will hold solvents, acid-based, without degrading.”
Any problems with respect to gaps in the chain of custody go to the weight
to be given the evidence, and we do not invade the province of the jury. See
Martinez, 186 S.W.3d at 62. Viewing all of the evidence in the light most
favorable to the verdict and properly deferring to the jury, we hold that a rational
jury could have found that the substance tested by Carrell was the substance that
was found in the blackened Gatorade bottle. Therefore, we conclude that a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Appellant’s second issue is overruled.
Denial of Motion for Mistrial
Appellant contends in his first issue that the trial court erred when it denied
his motion for mistrial because the prosecutor improperly commented on his
failure to testify. We review the trial court’s denial of a motion for mistrial for an
abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).
A comment on a defendant’s failure to testify offends both the United States and
Texas Constitutions and violates Texas statutory law. U.S. CONST. amend. V; TEX.
CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08 (West 2005). We
consider the prosecutor’s language from the jury’s standpoint, and it must be clear
that the comment was a reference to the defendant’s failure to testify.
Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). We must
consider the context in which the comment was made and determine “whether the
language used was manifestly intended or was of such a character that the jury
would necessarily and naturally take it as a comment on the defendant’s failure to
testify.” Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (quoting
Bustamante, 48 S.W.3d at 765).
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Specifically, Appellant complains of the following statement made during
closing arguments:
So when Deputy Braly goes up and he asks Mr. Kinder “what
were you doing on the lake” Mr. Kinder says “looking for lost goats.”
Deputy Braly had already smelled the strong chemical smell that’s not
associated with fishing, anything on the lake, an outboard motor, so he
says, “What’s that stuff in your boat?” And what did Mr. Kinder say
to Deputy Braly at that time? “Some junk. Some junk that we found
on the shoreline.” Does that make sense to you?
You know, you look at the orange cooler and, if you found it on
the shoreline, do you think the person who may have found it on the
shoreline, if that’s what happened, didn’t open it? It had something in
it. It was heavy. So you got to know that anybody who would have
found it on the shoreline would have opened it, and when they opened
it they would have had that chemical smell. So why wouldn’t you tell
the deputy let me show you what we found. We found an orange and
white cooler and it was frosted up the side. And, man, when we
opened it, it had dry ice in it. Why would anybody have dry ice in
February? What do we do with it? Oh, man, it stunk horrible. Oh,
Deputy, we also found this red gas can and it didn’t have a stop on it
and there’s something in it. And we smelled of it. Oh, strong
chemical smell. And, Deputy, you’re not going to believe this blue
pole that we found. Man, it’s crazy. It’s special. I wonder what
somebody was doing with that. Don’t you know that somebody who
had not been manufacturing methamphetamine may have said
something like that?
Appellant objected to the statement as a “reference to defendant’s failure to
testify,” and the trial court sustained the objection, instructed the jury to disregard,
but denied the motion for mistrial. The State argues that the jury would not have
understood the prosecutor’s statement to be a reference to Appellant’s failure to
testify. Appellant contends that the prosecutor’s argument was an “improper
reference to [Appellant’s] invocation of his fifth-amendment privilege” because
“[o]nly appellant could deny that the items were not used to manufacture
methamphetamine.”
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We conclude that the prosecutor’s statement was not a comment on
Appellant’s failure to testify at trial. When we view it in context, the complained-
of statement does not relate to Appellant’s failure to testify but, rather, relates to
the plausibility of Appellant’s pre-arrest explanation for the mobile
methamphetamine lab found in his boat. See Keith v. State, 384 S.W.3d 452, 462
(Tex. App.—Eastland 2012, pet. ref’d) (“[T]he complained-of statement by the
prosecutor relates to appellant’s concealment efforts prior to being arrested, rather
than his failure to testify.”). As such, the prosecutor’s argument was not an
impermissible comment on Appellant’s failure to testify.
To the extent that Appellant’s argument can be construed as a complaint
about post-Miranda 1 silence, we again disagree because Appellant had not invoked
the privilege and had not been placed under arrest. See Salinas v. State, 369
S.W.3d 176, 179 (Tex. Crim. App. 2012) (“We hold that pre-arrest, pre-Miranda
silence is not protected by the Fifth Amendment . . . and that prosecutors may
comment on such silence regardless of whether a defendant testifies.”). Moreover,
the State did not refer to Appellant’s silence but, rather, argued that the explanation
Appellant gave was inconsistent with innocent conduct.
The trial court did not abuse its discretion when it denied Appellant’s motion
for mistrial. Appellant’s first issue is overruled.
This Court’s Ruling
We affirm the judgment of the trial court.
February 28, 2014 JOHN M. BAILEY
Do not publish. See TEX. R. APP. P. 47.2(b). JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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