                                     NUMBER 13-07-047-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


RODNEY CLINE,                                                                                 Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                            Appellee.


                        On appeal from the 411th District Court
                             of San Jacinto County, Texas


                               MEMORANDUM OPINION

                     Before Justices Yañez, Benavides, and Vela
                       Memorandum Opinion by Justice Vela

      Appellant, Rodney Cline, appeals his conviction for the manufacture of more than

400 grams of a controlled substance, methamphetamine.1 By two issues, Cline argues the

evidence was legally and factually insufficient to support the conviction. We affirm.



      1
          See T EX . H EALTH & S AFETY C OD E A N N . §§ 481.102(6), 481.112(f) (Vernon 2003 & Supp. 2007).
                                                   I. Background

         When Constable Charles Clack tried to serve a felony probation warrant on

Catherine Starling at a home near Coldspring, Texas on April 6, 2005, he and fellow

officers discovered two methamphetamine labs.2 Starling told officers she operated the

labs along with her boyfriend, John Cline, who was present, and his brother, Rodney Cline,

who was not present. Chris Martin, Starling’s sixteen-year-old son, told officers he lived

there and that the bedroom where one of the labs was located was where Rodney Cline

slept. John Cline, who was high on methamphetamine, claimed both labs belonged to

Rodney Cline. James Cline, John and Rodney’s father, and former owner of the house,3

said he knew nothing of the meth labs.

         The raid resulted in at least five indictments for manufacturing a controlled

substance. John Cline and Catherine Starling pleaded guilty to manufacturing a controlled

substance. John received a five-year prison sentence; Starling received five years’

community supervision in return for testifying against Rodney Cline. Rodney pleaded not

guilty. James Cline and his wife Lydia were also indicted.4

         At Rodney Cline’s trial, the only eye-witness connecting Rodney with manufacturing

meth was Catherine Starling. She testified Rodney stayed in the bedroom that contained

a meth lab and that she had seen him drying chemicals and cutting matches, but had not

personally watched him mix all of the chemicals into a final product. She explained that,


         2
             One was in a room inside the house; the second was in a shed in the back yard.

         3
          The house seem s to have been owned by Jam es Cline, Jr., who is otherwise uninvolved with this
case. At trial, Jam es Cline, Sr. testified that he and his wife were living in Hum ble at the tim e. Starling testified
that they were living in the Coldspring house. Various witnesses disagreed on how m any people lived at the
Coldspring house. Starling said that there were seven, Martin said six, John and Jam es Cline, Sr., and his
wife, Lydia Cline, said four.

         4
             As of Rodney’s trial, they had yet to be tried.
                                                           2
while Rodney was not at the home on April 6, 2005 (the date of the raid), he had been

there either one or two days earlier. She testified John and Rodney Cline aided each other

in producing meth and jointly sold it from the home.

        Starling’s son, Chris Martin, testified he had seen Rodney using the microwave in

a way that he associated with producing meth. He also said the bedroom where the meth

lab was found was Rodney’s.

        The prosecution also presented testimony from Constable Clack, from another

officer present during the April 6th raid, from a state meth task force officer, and from a

crime-lab chemist, though they gave no evidence directly linking Rodney to the crime.

        The defense presented testimony from four witnesses, testifying that Rodney Cline

did not live at the Coldspring house in the weeks preceding the raid.5 One of them, John,

specifically said that Rodney was not involved in meth production at the Coldspring house.

        The jury found Rodney guilty. At a sentencing hearing on November 30, 2006, the

trial court sentenced him to fifteen years in prison, the minimum sentence available for the

crime.6 He now appeals to this Court.

                                     II. Accomplice-Witness Testimony

        Rodney’s two issues claim the evidence was legally and factually insufficient to

support the jury’s verdict. A fundamental element of both issues is that there was

insufficient evidence to corroborate Catherine Starling’s testimony, and thus we should

exclude it from consideration under the accomplice-witness rule.

        Neither a judge nor a jury can convict a defendant based on the testimony of an


        5
        Defense witnesses did not agree on when, precisely, Rodney stopped living at the Coldspring house,
though all agreed he did not live there after April 1.

        6
            See T EX . H EALTH & S AFETY C OD E A N N . § 481.112(f) (Vernon 2003).
                                                          3
accomplice unless there is independent evidence "tending to connect" the defendant with

the crime. TEX . CODE CRIM . PROC . ANN . art. 38.14 (Vernon 2005); Druery v. State, 225

S.W.3d 491, 498 (Tex. Crim. App. 2007). To determine whether accomplice testimony is

sufficiently corroborated under the accomplice-witness rule, we must eliminate the

accomplice testimony from consideration and then examine the remaining portions of the

record to see if there is any evidence that tends to connect the accused with the

commission of the offense. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001).

       The non-accomplice evidence need not directly link the defendant to the crime, nor

must it be sufficient to establish guilt beyond a reasonable doubt; rather, the standard is

only that it have a tendency to connect the defendant to the crime. Dowthitt v. State, 931

S.W.2d 244, 249 (Tex. Crim. App. 1996). While the defendant’s mere presence at the

crime scene is not sufficient by itself to corroborate accomplice testimony, evidence of

such presence, coupled with other suspicious circumstances, may tend to connect the

accused to the offense. Trevino v. State, 991 S.W.2d 849, 851-52 (Tex. Crim. App. 1999)

(quoting Dowthitt, 931 S.W.2d at 249).

       Here, the non-accomplice evidence comes from Starling’s son, Chris Martin:7

       Q: Okay. Are you familiar with how methamphetamine is manufactured?

       A: Not the whole thing, but I know you have got to dry it out.

       Q: Okay. And did you see Rodney Cline doing anything related to making
       methamphetamine?

       A: I seen him go to the microwave and use it a lot.

       Q: Okay. And do you see what he was taking to the microwave?



       7
         Though Martin seem s to have been present when m etham phetam ine was being produced at the
Coldspring house, there are no allegations that he participated in the crim inal enterprise.


                                                 4
       A: It was a plate-looking thing. It’s like what they made cornbread in, but it’s
       glass.

       Q: Okay. Was cornbread or some other food in that?

       A: No, sir.

       Q: Okay. What did it look like that was in there?

       A: It looked like the bottom was real foggy.

       Among the evidence found in the bedroom where Rodney slept was a round glass

pie plate coated in a residue of liquid and powder. It tested positive for methamphetamine.

Constable Clack testified meth producers often use microwaves to dry their product. Also

shown to the jury was a photograph taken of a microwave found in the bedroom. The

photograph showed a spoon and syringe inside the microwave, which Constable Clack told

the jury were tools often used in producing meth. This evidence tends to connect Rodney

to the manufacture of methamphetamine; thus Starling’s testimony could be used to

convict Rodney of the crime.

                              III. Legal and Factual Sufficiency

       In reviewing the legal sufficiency of the evidence to support a conviction, we view

all the evidence in the light most favorable to the verdict in order to 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, 319 (1979); Hampton v. State, 165

S.W.3d 691, 693 (Tex. Crim. App. 2005). This standard gives full play to the responsibility

of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. The

trier of fact is the sole judge of the weight and credibility of the evidence. TEX . CODE CRIM .

PROC . ANN . art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim.


                                               5
App. 2000). Thus, when performing a legal-sufficiency review, we may not re-evaluate the

weight and credibility of the evidence and substitute our judgment for that of the fact-finder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any

inconsistencies in the evidence in favor of the judgment. Curry v. State, 30 S.W.3d 394,

406 (Tex. Crim. App. 2000).

       When reviewing the factual sufficiency of the evidence, we view all the evidence in

a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim.

App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We will set

aside the verdict only if: (1) the evidence supporting the conviction, although legally

sufficient, is nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust; or (2) the verdict is against the great weight and preponderance of the

evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex.

Crim. App. 2000). We cannot conclude a conviction is “clearly wrong” or “manifestly

unjust” simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. In

other words, we may not simply substitute our judgment for the fact-finder’s judgment.

Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

To reverse for factual sufficiency, we must determine, with some objective basis in the

record, that the great weight and preponderance of the evidence contradicts the verdict.

Watson, 204 S.W.3d at 417. In examining a factual sufficiency challenge, we defer to the

fact-finder’s determination of the credibility of the evidence. Swearingen v. State, 101

S.W.3d 89, 97 (Tex. Crim. App. 2003).

                                  Elements of the Offense

       The essential elements of the crime Rodney Cline was charged with are that he (1)



                                              6
knowingly (2) manufactured (3) more than 400 grams (4) of a controlled substance listed

in Penalty Group 1.      See TEX . HEALTH & SAFETY CODE ANN . § 481.112(a), (f).

Methamphetamine is a controlled substance listed in Penalty Group 1. See TEX . HEALTH

& SAFETY CODE ANN . § 481.102(6) (Vernon 2003).

                                         Analysis

       Catherine Starling testified Rodney made meth in the bedroom of the Coldspring

house and that he traded ingredients with John, who made meth in the shed behind the

house. Chris Martin testified he had seen Rodney using the microwave in a way that he

associated with producing meth. He also said the bedroom where the meth lab was found

was Rodney’s. Though Chris was not completely familiar with how methamphetamine was

manufactured, he knew that “you have got to dry it out.” He saw Rodney using the

microwave “a lot” and said that Rodney would take to the microwave a “plate-looking thing”

“like what they made cornbread in, but it’s glass.” He testified there was no cornbread or

other food in that glass container.

       Among the evidence found in the bedroom where Rodney slept was a round glass

pie plate coated in a residue of liquid and powder. It tested positive for methamphetamine.

Constable Clack testified meth producers often use microwaves to dry their product. Also

shown to the jury was a photograph taken of a microwave found in the bedroom. The

photograph showed a spoon and syringe inside the microwave, which Constable Clack told

the jury were tools often used in producing meth.

       The crime lab determined that the amount of meth recovered from the joint

operation was greater than 400 grams. Accordingly, the evidence is legally sufficient to

support the verdict. We overrule Rodney’s first issue.



                                            7
       In addition to the extensive evidence that meth labs existed at the Coldspring house,

the evidence against Rodney consisted of one prosecution witness who said that Rodney

lived at the Coldspring house around the time of the raid and made meth there, and one

witness who said Rodney lived at the Coldspring house around the time of the raid and

performed activities associated with making meth. The defense presented one witness

who said Rodney did not make meth and did not live in the Coldspring house at the time,

and three witnesses who said Rodney did not live at the Coldspring house at the time.

From the evidence in the record, it is impossible to conclude that the verdict was manifestly

unjust or that it was against the great weight and preponderance of the evidence. Thus,

we defer to the fact-finder’s decision. We overrule Rodney’s second issue.

                                      IV. CONCLUSION

       We affirm the judgment of the trial court.



                                                    ROSE VELA
                                                    Justice


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

Memorandum Opinion delivered and
filed this 29th day of July, 2008.




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