in Re: Stanley Graff

6-96-028-CV Long Trusts v. Dowd In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00075-CV ______________________________ IN RE: STANLEY V. GRAFF Writ of Injunction Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion Per Curiam MEMORANDUM OPINION Appellant, Stanley V. Graff, has filed an application for writ of injunction. This extraordinary writ asks this Court to "issue an order directing the Appellees to cease all work of any kind on Graff's property related to the construction of a road on Graff's property pending the final judgment of this Court in this appeal." Because this involves an application for extraordinary writ, we order these writ proceedings to be severed from Graff's underlying appeal against Vernon Berry, et al. We assign the application for writ of injunction to cause number 06-06-00075-CV. We deny the application for writ of injunction. PER CURIAM Date Submitted: July 10, 2006 Date Decided: July 11, 2006 his conviction for manufacture of a controlled substance, namely methamphetamine. During an investigation of a suspected methamphetamine laboratory, police discovered, in a motel room that Lowe was occupying, both equipment which could be used to manufacture methamphetamine and methamphetamine in the process of being produced. After the jury found Lowe guilty, Lowe pled true to two prior convictions enhancing the punishment range to not less than twenty-five years or more than ninety-nine years or life. The jury assessed punishment at ninety-nine years' imprisonment. We affirm the judgment of the trial court. Lowe raises four issues on appeal. Lowe contends that 1) the evidence is insufficient to corroborate the accomplice witness testimony, 2) he received ineffective assistance of counsel, 3) the evidence is legally insufficient to support the jury's verdict, and 4) the evidence is factually insufficient to support the jury's verdict. We conclude there is sufficient evidence which tends to connect Lowe to the offense to corroborate the accomplice witness testimony. Lowe has not shown that the performance of his attorney at trial was deficient. The evidence is both legally and factually sufficient to support the verdict. 1. Sufficient Corroboration of Accomplice Statement In his first point of error, Lowe contends the testimony of the accomplice, Tracy Thomas, is insufficiently corroborated by other evidence to sustain the conviction. Lowe argues there is no evidence that tends to connect him to the crime other than his presence at the scene. Accomplice witness testimony must be corroborated by other evidence which tends to connect the defendant to the offense. Article 38.14 provides that "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). The Texas Court of Criminal Appeals has held that corroboration of the accomplice witness testimony is a statutory requirement imposed by the Legislature and declined to "impose legal and factual sufficiency standards on a review of accomplice witness testimony under Article 38.14." Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). The accomplice witness rule only requires that there is some nonaccomplice evidence which "tends to connect" the accused to the commission of the offense alleged in the indictment. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). The test for determining the sufficiency of the corroboration is to eliminate the accomplice testimony from consideration and then determine if there is any other incriminating evidence which "tends to connect" the defendant with the crime. Id.; Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). The nonaccomplice evidence does not need to prove all the elements of the alleged offense. Hernandez, 939 S.W.2d at 176; Underwood v. State, 967 S.W.2d 925, 928 (Tex. App.—Beaumont 1998, pet. ref'd). Although Lowe was present at the scene of the crime, his presence alone is not enough to corroborate the accomplice testimony. Mere presence of a defendant at the scene of the crime is insufficient to corroborate accomplice testimony. Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992); Beathard v. State, 767 S.W.2d 423, 428 (Tex. Crim. App. 1989); Howard v. State, 972 S.W.2d 121, 128 (Tex. App.—Austin 1998, no pet.); see Rios v. State, 982 S.W.2d 558 (Tex. App.—San Antonio 1998, pet. ref'd). However, as the Texas Court of Criminal Appeals asserted in Brown, "[p]roof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction." Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984). Even apparently insignificant incriminating circumstances may sometimes prove to be sufficient corroboration. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). Cumulative evidence of "suspicious circumstances" can be sufficient evidence which "tends to connect" a defendant to the alleged offense, even if none of the circumstances would be sufficient individually. The State introduced several "suspicious circumstances," which tend to connect Lowe to the manufacture of methamphetamine. The State introduced evidence that Lowe had paid the rent for the motel room, knew how to manufacture methamphetamine, knew what compounds were being used in the motel room, and was in the company of the accomplice at the time of the raid. Although the motel room had been registered under the name Jerry or Larry Lowe, Eric Tceng, the owner of the motel, testified that Paul Lowe personally paid the rent for the week in question. Tceng did not register the original renter and did not know if Paul Lowe was the same individual who originally rented the room. While securing the crime scene and assessing the safety measures needed, Officer Randall Brooks, a D.E.A. cite-certified safety officer, asked Lowe if there was any sodium or lithium metal in the motel room. Lowe responded "no," and said that there was no anhydrous ammonia either. Officer Brooks testified that he did not ask Lowe whether the bathroom contained anhydrous ammonia and that his response indicated that he knew how to "cook" methamphetamine including multiple methods to manufacture methamphetamine. Lowe was also found in the company of the accomplice. Evidence that the defendant was in the company of the accomplice at or near the time or place of the offense is another corroborating circumstance. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). When the police knocked on the door of the motel room, they heard a female voice and observed a red-headed female peeking out of the window of the motel room. Shortly after the police knocked on the door, Lowe opened the front door to talk to the officers. The accomplice, Tracy Thomas, was apprehended while fleeing from the scene. William Casper, an officer with the Lufkin Police Department, testified that he observed Thomas exit the bathroom window of the motel room in question and attempt to flee while only partially dressed. Officer Casper testified that it is unusual for a person to exit a bathroom window and for a female to be outside without wearing a shirt. No other individuals were found inside the motel room. This evidence establishes that Lowe was in the company of the accomplice at or near the time of the offense. Texas does not require corroborating testimony to directly link the defendant to the crime or to prove each element of the offense. See Hernandez, 939 S.W.2d at 176; Underwood, 967 S.W.2d at 928. The cumulative effect of Lowe's presence at the scene and the suspicious circumstances that Lowe knew how to manufacture methamphetamine, knew the compounds being used in the motel room, had paid the rent for the motel room, and was found in the company of the accomplice is sufficient to tend to connect Lowe to the offense. 2. Trial Counsel's Assistance Has Not Been Shown To Be Ineffective Lowe asserts in his second point of error that his trial counsel was ineffective for failing to make a closing argument during the punishment phase. The State argued in its closing argument at punishment that Lowe had been convicted of eight prior felonies and had recently been convicted of misdemeanor theft. Lowe contends there are several arguments which could have been made. Lowe had not committed a felony in the past sixteen years. Lowe's longest sentence was eighteen years. All of Lowe's prior felonies had been committed before he turned forty, and at the age of fifty-three a lengthy sentence would result in his death before he could be released on parole. Lowe also contends his attorney could have made a plea for mercy. Despite the existence of possible arguments, Lowe has failed to prove that his trial attorney's performance was deficient. Both the United States and Texas Constitutions confer a right to effective representation by counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. If counsel's performance is ineffective, the conviction cannot stand. The Texas Court of Criminal Appeals has held that the Texas Constitution does not impose a higher standard than the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986). The Sixth Amendment standard, established by Strickland, requires a defendant alleging ineffective assistance of counsel to show that his or her counsel's performance at trial was deficient and that counsel's deficient performance prejudiced his or her defense. See Strickland v. Washington, 466 U.S. 668 (1984); see also Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To satisfy the deficiency prong of the test, Martin must prove by a preponderance of the evidence that his counsel's representation fell below the objective standard of professional norms. Bone, 77 S.W.3d at 833. There is a strong presumption that counsel's performance was adequate. Id. The reason for this presumption is that counsel at trial is better positioned to judge matters of strategy than an appellate court reviewing a cold record. An appellate court should not "conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Lowe argues that any attorney acting within professional norms would have attempted to advocate something favorable on behalf of his client. An ineffective assistance of counsel claim cannot be based on a difference of opinion concerning strategy. Ineffective assistance of counsel claims "must be firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999). "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). "[T]he defendant must prove, by a preponderance of the evidence, that there is . . . no plausible professional reason for a specific act or omission." Bone, 77 S.W.3d at 836. Waiving the final argument at the punishment phase has been held to be acceptable trial strategy. Salinas v. State, 773 S.W.2d 779, 783 (Tex. App.—San Antonio 1989, pet. ref'd); see Ortiz v. State, 866 S.W.2d 312, 315 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd) (short incoherent final argument at punishment not ineffective assistance of counsel). It is the trial strategy of some attorneys to waive final argument in an attempt to cut off the State's rebuttal. Salinas, 773 S.W.2d at 783. The record does not indicate why trial counsel failed to make a closing argument at punishment, and the waiver of a closing argument can be valid trial strategy. Lowe has not shown that no plausible professional reasons exist for his trial counsel's actions. Further, ineffective assistance of counsel claims must be based on the totality of the circumstances. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Although a defendant is entitled to effective assistance of counsel, the accused is not entitled to errorless or perfect counsel. Id. When considered in the totality of the circumstances, Lowe has not shown that his attorney's performance was deficient. 3. The Evidence is Legally Sufficient Lowe argues that the evidence is legally insufficient to support the jury's verdict of guilty. Lowe contends a rational juror could have concluded Lowe simply walked into a bad situation. Lowe argues that, based on all the evidence, a rational juror could not have found all the essential elements beyond a reasonable doubt. In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). A person commits an offense if he knowingly manufactures, delivers, or possesses with intent to manufacture or deliver a methamphetamine. Tex. Health & Safety Code Ann. §§ 481.102(6), 481.112(a) (Vernon 2003 & Supp. 2004). "Manufacture" is defined as "the production, preparation, propagation, compounding, conversion, or processing of a controlled substance . . . independently by means of chemical synthesis . . . ." Tex. Health & Safety Code Ann. §§ 481.002(25) (Vernon Supp. 2004). There is legally sufficient evidence that would allow a rational juror to find the essential elements of manufacture of methamphetamine beyond a reasonable doubt. When viewed in a light most favorable to the prosecution, a rational juror could have concluded beyond a reasonable doubt that Lowe knowingly manufactured methamphetamine beyond a reasonable doubt. Thomas testified that she and Lowe had maufactured the methamphetamine together. She testified that Lowe was the primary cook and that she just assisted him. As discussed previously, Lowe was present at the scene and demonstrated a knowledge of the methods used to make methamphetamine and what specific compounds were used. Shortly after the police knocked on the door, Lowe exited the motel room by the front door to talk to the officers. The room also contained a suitcase with Lowe's name on it, Lowe's high school diploma, several letters addressed to Lowe, and a certificate with Lowe's name on it. Officer Baker testified that, during the initial investigation of the motel room, the bathroom contained smoke and fumes. The smoke and fumes indicated that a chemical reaction was still occurring inside the motel room when the police arrived. The officers found freshly cooked methamphetamine drying in a Pyrex dish on the bed. While securing the crime scene and assessing the safety measures needed, Officer Randall Brooks, a D.E.A. cite-certified safety officer, asked Lowe if there were any sodium or lithium metal in the motel room. Lowe responded "no" and that there was no anhydrous ammonia either. Officer Brooks testified that he did not ask Lowe whether the bathroom contained anhydrous ammonia and that his response indicated that he knew how to "cook" methamphetamine including multiple methods to manufacture methamphetamine. The State established that methamphetamine was found at the scene and that the room contained materials that could be used in the manufacture of methamphetamine. Kevin Minor, a chemist with the Texas Department of Public Safety, testified that the samples taken from the motel tested positive for methamphetamine and exceeded four grams in aggregate weight. The motel room contained various apparatus which could be used to manufacture methamphetamine. There was a plastic tube containing ice and water. Electrical cords were running all over the room which were taped down. The microwave had been sealed with tape to prevent the gases from escaping. In the bathroom, the police found a methamphetamine reaction vessel consisting of a jug with tubing running out of it sealed with tape. Police also found containers of Red Devil Lye, a compound with a red phosphorous color, and other compounds used in the manufacture of methamphetamine. When viewed in a light most favorable to the verdict, legally sufficient evidence exits. The accomplice testified that Lowe was the primary "cook." Lowe was present at the scene and demonstrated a knowledge of the specific materials used. Apparatus and compounds which can be used in the manufacture of methamphetamine were found in the motel room. A rational juror could have found that all the essential elements of the offense were proved beyond a reasonable doubt. 4. The Evidence is Factually Sufficient Lowe contends the evidence is factually insufficient. Lowe argues that the evidence is factually insufficient because he did not flee, that he had arrived shortly before the police, that he was upset at Thomas for manufacturing methamphetamine, and that the police did not fingerprint any of the seized evidence. However, the evidence is not too weak to support the jury's finding of guilt beyond a reasonable doubt, and the contrary evidence is not strong enough that the State could not have met its burden of proof. When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, slip op. at 8, 2004 Tex. Crim. App. LEXIS 668, *20 (Tex. Crim. App. Apr. 21, 2004). There are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if—when we weigh the evidence supporting and contravening the conviction—we conclude the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Lowe contends he was simply in the wrong place at the wrong time. Travis Roberts testified that he visited the motel room in question twice that day. According to Roberts, Eric Kent and Thomas were cooking methamphetamine during the first visit. The first visit lasted around twenty minutes, sometime between one o'clock and three o'clock in the afternoon. Roberts testified that his second visit occurred around five o'clock that afternoon to get a flask. According to Roberts, Lowe arrived while Kent was cleaning the flask. Roberts testified that Lowe was upset that Thomas and Kent had been "cooking" methamphetamine, and Roberts left shortly after Lowe arrived. The police arrived shortly after Roberts left the motel room. Lowe argues that Thomas, an admitted drug addict, had confused him with Kent in her statement to the police. Lowe wrote Thomas a letter in which he stated that she had confused him and Kent in her statement. Thomas wrote a letter to Lowe in which she stated that Lowe was "in the wrong place at the wrong time." The State argues that Lowe was attempting to get Thomas to change her testimony and stated in his letter "I got there after 5:00 fell asleep on the bed and woke up to the police knocking on the door. If you get this over, I walk. O.K.?" Thomas testified that Kent was at the apartment that day but left before the police arrived. According to Thomas, Kent only watched them cook the methamphetamine but did aid in the drying process. She testified that Roberts was not in the room when they cooked the methamphetamine. Thomas claims that Roberts came before starting the cook and then came afterwards to borrow a flask. According to Thomas, Roberts left a few minutes before the police arrived. Thomas was an admitted drug user and was required as a condition of her community supervision to testify against him. As discussed previously, Thomas testified that Lowe participated in the synthesis of the methamphetamine. Further, Lowe was found at the scene and demonstrated knowledge of the compounds being used. When viewed in a neutral light, the evidence is factually sufficient. The credibility of the witnesses is within the province of the jury. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The jury was entitled to believe Thomas' testimony at trial over Roberts'. The evidence supporting the verdict, considered alone, is not too weak to support the jury's finding of guilt beyond a reasonable doubt. After weighing the evidence supporting and contravening the conviction, we conclude the contrary evidence is not strong enough that the State could not have met its burden of proof. Lowe's conviction for manufacture of methamphetamine is supported by legally and factually sufficient evidence. Lowe has not demonstrated that he received ineffective assistance of counsel, and the accomplice witness testimony was sufficiently corroborated. We affirm the judgment of the trial court. Jack Carter Justice Date Submitted: May 24, 2004 Date Decided: July 23, 2004 Do Not Publish