Louis Leroy Kline v. State ( 2005 )

11th Court of Appeals

Eastland, Texas

Opinion

Louis Leroy Kline

            Appellant

Vs.                  No. 11-04-00076-CR -- Appeal from Palo Pinto County

State of Texas

            Appellee

            The jury convicted Louis Leroy Kline of manufacturing 200 grams or more but less than 400 grams of methamphetamine and assessed his punishment at confinement for 99 years and a $50,000 fine. We affirm.

            In two issues, appellant challenges both the legal and factual sufficiency to support the conviction. Specifically, appellant contends that the State failed to affirmatively link him to the contraband. We disagree.

            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.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229 (Tex.Cr.App. 2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr. App.1996).

            Gary Miller testified that he lived three miles south of Mineral Wells on Old Dog Pound Road. On the evening of June 6, 2003, he was outside his home visiting with some friends from Kansas when a pickup pulled into his driveway. Robert Dee Colston was driving the vehicle. Appellant was sitting by the passenger door, and a female was sitting between the two men. Someone in the pickup asked Miller if they could put something in the barrel where Miller burned his trash, and Miller said yes. Miller saw appellant walk over to the trash barrel and put something in it.

            Shortly thereafter, Palo Pinto County Sheriff Deputy Michael Lindbloom and his partner arrived and began to speak with Miller. Miller then saw appellant take a “jug” out of the back of the pickup and walk over to some brush on his property. The brush was in an area not visible to the deputies. The deputies were still there when appellant returned from the brush. Miller stated that appellant was not carrying anything when he walked back to the pickup.

            Miller was positive that it was appellant and not Colston who carried the item to his trash barrel and who carried the jug to the brush because Colston was in a wheelchair. Miller stated that he had no idea what appellant and Colston were doing.

            Deputy Lindbloom testified that he was on patrol when both he and his partner smelled the odor of ether on FM Road 2256, also known as Old Dog Pound Road. The officers followed the odor to Miller’s property. Deputy Lindbloom saw appellant walking from the brush and toward a pickup. The odor of ether was coming from the area behind appellant. In the bed of the pickup, Deputy Lindbloom saw a “pit bull kind of” dog, a one-gallon garden weed sprayer, an ice chest, a pink tub, and a plastic gallon container with some type of solution in it. Inside the pickup, officers found coffee filters, lithium batteries, three syringes, a piece of cotton, and a spoon.

            Deputy Lindbloom stated that the odor of ether was associated with methamphetamine labs and that garden weed sprayers could be made into hydrochloric acid gas pumps for use in the manufacturing of methamphetamine. The other items found in the pickup were consistent with what Deputy Lindbloom had found in methamphetamine labs.

            In appellant’s pocket’s, Deputy Lindbloom found a plastic bag containing smaller plastic baggies, a plastic tube from a pen with a burnt end, brass fittings, and a lighter. A piece of tin foil with burned residue was found near the rear bumper of the pickup. Deputy Lindbloom stated that the burnt plastic tube and the tin foil were consistent with smoking methamphetamine.

            While Colston was out of the pickup and sitting in his wheelchair, Deputy Lindbloom saw him drop a plastic bag containing 16 smaller plastic bags. The plastic bags were consistent with the types of bags used to distribute methamphetamine.

            In the area of the brush from where he had seen appellant walk to the truck, Deputy Lindbloom found a white gallon jar with a lid. Palo Pinto County Sheriff Deputy Terry McDaniel, who was serving as an assistant commander of the Cross Timbers Task Force, identified the liquid in the jar as being in the final stage of the manufacture of methamphetamine. The liquid had a strong odor of ether and only needed to be poured through a filter to separate the sediment. The sediment, after drying, would be the final product. The sediment tested to contain methamphetamine.             Deputy McDaniel stated that officers searched Miller’s residence, his barn, his outbuildings, the vehicle of his friends from Kansas, and his trash barrel. Except for the jar in the brush and the contents of Colston’s pickup, the only other item the officers found that was consistent with the manufacturing of methamphetamine was in the trash barrel. Everything in the trash barrel was burned except for a “pump-up type garden sprayer”that appeared to be an “improvised” HCL generator. Miller told the officers that the sprayer was not his. Deputy McDaniel testified that the trash in the barrel was still smoking and was still warm.

            The jar recovered from the brush and the jar found in the bed of the pickup contained a total of 265.87 grams of methamphetamine.

            Palo Pinto County Deputy Sheriff Cory McCurtain testified that it was not illegal to possess garden sprayers, coffee filters, lithium batteries, and small plastic baggies by themselves. However, when these items were found in combination as in the present case, Deputy McCurtain stated that it indicated the manufacturing of methamphetamine.

            At the punishment phase of the trial, appellant testified that no one asked to use Miller’s trash barrel, that he did not throw anything into the trash barrel, and that he used the garden sprayer in the pick-up for “herbicides for weed control.” Appellant stated that he had not walked out into the brush but that he had “stepped around” the pickup near Miller’s residence to use the bathroom. Appellant stated that, earlier that evening while they were leaving a convenience store, the woman had asked him to hold the small plastic baggies for her because her hands were full. Appellant stated that he had never been around methamphetamine labs; that he did not smell any ether that night; and that, while at one time in his life he used methamphetamine “quite often,” he had quit.

            The jury was the finder of fact and the sole judge of the weight and credibility of the witnesses’ testimony. TEX. CODE CRIM. PRO. ANN. art. 36.13 & 38.04 (Vernon 1979 & 1981). As such, the jury could have reasonably concluded that appellant committed the offense. After searching the entire area, the only items associated with the manufacture of methamphetamine were found in areas that appellant was seen exercising control over. It was undisputed that the other male was unable to walk. Appellant was the only person seen taking items out of the bed of the pickup, and he was seen carrying an item to the trash barrel. After the deputies arrived, he was seen carrying an item to the brush. The jar of methamphetamine found in the brush was discovered in the area where appellant had been seen. Items associated with the manufacture of methamphetamine were found in the pocket of appellant’s pants and in the trash barrel. The evidence affirmatively linked appellant to the methamphetamine. Brown v. State, 911 S.W.2d 744 (Tex.Cr.App.1995); Martin v. State, 753 S.W.2d 384 (Tex.Cr.App.1988); Pollan v. State, 612 S.W.2d 594 (Tex.Cr.App.1981); Wootton v. State, 132 S.W.3d 80 (Tex.App. - Houston [Dist. 14th] 2004, pet’n ref’d); Gant v. State, 116 S.W.3d 124 (Tex.App. - Tyler 2003, pet’n ref’d). The evidence is both legally and factually sufficient to support the conviction, and the issues are overruled.

            The judgment of the trial court is affirmed.

                                                                                    JIM R. WRIGHT

                                                                                    JUSTICE

February 17, 2005

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

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.