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                                               OPINION

                                         No. 04-07-00220-CR

                                           Marvin WEBB,
                                             Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                     From the 81st Judicial District Court, Wilson County, Texas
                                  Trial Court No. 04-11-215-CRW
                            Honorable Donna S. Rayes, Judge Presiding

Opinion by:      Phylis J. Speedlin, Justice

Sitting:         Alma L. López, Chief Justice
                 Phylis J. Speedlin, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: June 4, 2008

AFFIRMED

           Marvin Webb was charged by way of a two-count indictment with the offenses of

manufacturing of a controlled substance and possession of precursor materials with intent to

manufacture a controlled substance. Webb waived his right to a jury trial and the trial court found

him guilty on both counts. On appeal, Webb argues that: 1) the trial court erred by proceeding to

trial on the second count without first securing a plea from him; 2) he received multiple punishments

for the same conduct in violation of the Double Jeopardy Clause; and 3) the evidence is factually
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insufficient to support his conviction for the offense of manufacturing a controlled substance. We

overrule Webb’s issues and affirm the judgment of the trial court.

       1. The indictment charged Webb with knowingly manufacturing methamphetamine in an

amount of four grams or more but less than 200 grams (Count I), and possessing an immediate

precursor, namely ephedrine or pseudoephedrine, iodine, acetone, lye, and charcoal lighter fluid, with

intent to manufacture methamphetamine (Count II). Webb first argues that the trial court erred in

proceeding to trial on Count II of the indictment—and subsequently entering a finding of guilty on

that count—because he never entered a plea on Count II, and hence the issue of his guilt on Count

II was never joined. The following exchange occurred after Webb waived his right to a jury trial:

       Trial court:    Calling Cause No. 04-11-00215, State of Texas v. Marvin Webb. Is
                       the State ready?
       Prosecution:    The State is ready.
       Trial court:    Defense ready?
       Defense:        Ready, Your Honor.
       Trial court:    [Defense counsel], does Mr. Webb wish to have the indictment read
                       or is he willing to waive the reading of the indictment?
       Defense:        We’ll waive the reading of the indictment, Your Honor. We’ve
                       reviewed it and waive the reading.
       Trial court:    All right. Mr. Webb, please stand. To the offense as alleged in the
                       indictment, manufacture of a controlled substance[,]
                       methamphetamine, how do you plead?
       Webb:           Not guilty.
       Trial court:    You may be seated.

       Without objection by Webb, the trial then proceeded through the evidentiary phase and

concluded with the trial court finding that the evidence supported Webb’s guilt as to the offense of

“manufacture of a controlled substance, methamphetamine.” At the conclusion of the punishment

phase, the trial court found Webb guilty of both counts as alleged in the indictment and sentenced

him to 30 years’ confinement on Count I and 20 years’ confinement on Count II, the sentences to run

concurrently.


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          For the first time, Webb now argues on appeal that the absence of a plea to Count II

constitutes a violation of articles 27.021 and 27.162 of the Texas Code of Criminal Procedure. See

TEX . CODE CRIM . PROC. ANN . art. 27.02(4) (Vernon 2006); art 27.16(a) (Vernon 2006). Webb relies

on Peltier v. State, 626 S.W.2d 30, 31 (Tex. Crim. App. 1981), to support his position that “[u]ntil

the indictment is read and a plea is entered the issue is not joined between the State and the accused

before the jury.” However, in Peltier, the defendant’s conviction was reversed because at the

guilt/innocence phase, the indictment was not read and the defendant did not enter his plea in the

presence of the jury, in violation of article 36.01, and the defendant brought the error to the trial

court’s attention in a motion for new trial. Peltier, 626 S.W.2d at 30-31; TEX . CODE CRIM . PROC.

ANN . art. 36.01(a)(1), (2) (Vernon 2007) (requiring that indictment be read and plea entered in jury’s

presence). The rationale for the rule requiring the reading of the indictment and entry of a plea

before the jury is to inform the defendant and the jury of the charges at issue, and to allow the jury

to hear the defendant admit or refute the charges. See Martinez v. State, 155 S.W.3d 491, 495 (Tex.

App.—San Antonio 2004, no pet.) (“Without the reading of the indictment and the entering of a plea,

no issue is joined upon which to try.”). A timely objection to afford the trial court an opportunity

to cure the defect is required to preserve error. Id.; Cantu v. State, 939 S.W.2d 627, 646 (Tex. Crim.

App. 1997). When the error is discovered after trial, error may be preserved through a motion for

new trial, bill of exception, or motion to arrest judgment. Warren v. State, 693 S.W.2d 414, 416



          1
           “The pleadings and motions of the defendant shall be: (4) a plea of not guilty.” T EX . C O D E C RIM . P RO C . A N N .
art. 27.02(4) (Vernon 2006).

          2
            “The plea of not guilty may be made orally by the defendant or by his counsel in open court. If the defendant
refuses to plead, the plea of not guilty shall be entered for him by the court.” T EX . C O D E C RIM . P RO C . A N N . art 27.16(a)
(Vernon 2006).

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(Tex. Crim. App. 1985); Martinez, 155 S.W.3d at 495. Here, Webb did not object during trial to the

trial court’s failure to secure his plea to Count II, and did not raise the issue in a post-trial motion;

therefore, error was not preserved. See Lee v. State, 239 S.W.3d 873, 876 (Tex. App.—Waco 2007,

pet. ref’d) (holding that an objection is required to preserve an article 36.01 complaint).

Accordingly, Webb’s first issue is overruled.

        2. Next, Webb contends he was assessed multiple punishments for the same offense in

violation of the Double Jeopardy Clause of the Fifth Amendment. See North Carolina v. Pearce,

395 U.S. 711, 717 (1969) (the Fifth Amendment guarantee against double jeopardy protects against

multiple punishments for the “same offense”). The indictment charged Webb with two counts as

follows:

                                             Count I
        Knowingly manufacture, by the production, preparation, propagation, compounding,
        conversion, or processing of a controlled substance, directly or indirectly by
        extraction from substances of natural origin, independently by means of chemical
        synthesis, or by a combination of extraction and chemical synthesis, a controlled
        substance, namely methamphetamine, in an amount of four grams or more but less
        than 200 grams;

                                             Count II
        With intent to unlawfully manufacture a controlled substance, namely
        methamphetamine, possess an immediate precursor, to wit: ephedrine or
        pseudoephedrine, iodine, acetone, lye, and charcoal lighter fluid; . . .

Webb argues that the precursor chemicals that formed the basis for his conviction under Count II

were possessed as part of a course of action engaged in to manufacture methamphetamine, which

resulted in his conviction under Count I; thus, the conviction under Count II was a second conviction

for the same conduct. In support, Webb relies on Lopez v. State, in which the court held that double

jeopardy barred the defendant’s convictions for both delivery of cocaine and possession of the same



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quantity of cocaine with intent to deliver. See Lopez v. State, 108 S.W.3d 293, 299 (Tex. Crim. App.

2003).

         We find Lopez distinguishable and disagree that Webb received multiple punishments for

the same offense in violation of double jeopardy. In Lopez, the defendant was punished for distinct

steps in a single drug transaction that flowed from one “original impulse.” Id. at 297-301 (holding

that defendant charged with violation of section 481.112 of the Health and Safety Code cannot be

punished more than once for manufacturing, possessing, and delivering the same single cache of

drugs) (emphasis ours). Here, however, two different “impulses” were involved. Offense one,

manufacturing of methamphetamine, was completed when methamphetamine was manufactured on

the premises controlled by Webb, as evidenced by the cache of drugs seized during the search of

Webb’s shop.      Offense two, possession of precursor materials with intent to manufacture

methamphetamine, was completed when precursor materials were seized at Webb’s shop, indicating

Webb’s ability to subsequently manufacture a separate batch of methamphetamine. See United

States v. Anderson, 987 F.2d 251, 255 (5th Cir.), cert. denied, 510 U.S. 853 (1993) (affirming

separate convictions for the offenses of manufacturing methamphetamine and attempting to

manufacture methamphetamine where evidence showed offenses were factually distinct because they

were based on different batches of methamphetamine); see also Toro v. State, 780 S.W.2d 510, 512

(Tex. App.—San Antonio 1989, no pet.) (holding double jeopardy does not bar prosecution for

distinct possession and delivery offenses where separate drug quantities are identified for each

offense). Because possession of the precursor materials gave Webb the ability to manufacture a new

batch of methamphetamine, a “new bargain” existed for which he could be punished. See Lopez, 108

S.W.3d at 301. We conclude that Webb engaged in two individual, separate acts that the Legislature

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has made subject to separate prosecutions and separate punishments. Accordingly, Webb did not

receive multiple punishments for the same offense and his second issue is overruled.

       3. Finally, Webb maintains the evidence is factually insufficient to support his conviction

for the offense of manufacturing methamphetamine under Count I of the indictment. In evaluating

factual sufficiency, we review all of the evidence in a neutral light, and set aside the jury’s verdict

only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the

verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d

1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We must

remain mindful that the jury is the sole judge of the credibility of the witnesses, and may choose to

believe all, some, or none of a witness’s testimony. Cain, 958 S.W.2d at 407 n.5. Under the first

prong, we may not conclude the verdict is “clearly wrong” or “manifestly unjust” simply because,

based on the quantum of evidence admitted, we would have rendered a different verdict. Watson v.

State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Similarly, under the second prong, we may not

conclude that a conflict in the evidence requires a new trial simply because we disagree with the

jury’s resolution of the conflict—the great weight and preponderance of the evidence must contradict

the jury’s verdict before we may reverse on that basis. Id. When addressing factual sufficiency, we

must include a discussion of the most important and relevant evidence that supports the appellant’s

complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Mullins v. State,

173 S.W.3d 167, 173-74 (Tex. App.—Fort Worth 2005, no pet.).

       To obtain a conviction on Count I, the State was required to prove that Webb knowingly

manufactured methamphetamine in an amount of four grams or more but less than 200 grams. See

TEX . HEALTH & SAFETY CODE ANN . § 481.112(a), (d) (Vernon 2003). To obtain a conviction for

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the 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 act of manufacturing. Brown

v. State, No. 07-06-0087-CR, 2007 WL 1245842, at *3 (Tex. App.—Amarillo Apr. 30, 2007, pet.

ref’d) (mem. op.) (not designated for publication); East v. State, 722 S.W.2d 170, 172 (Tex.

App.—Fort Worth 1986, pet. ref’d).

        Manufacturing can be established through circumstantial evidence. See McGoldrick v. State,

682 S.W.2d 573, 578 (Tex. Crim. App. 1985). 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. See

Green v. State, 930 S.W.2d 655, 657 (Tex. App.—Fort Worth 1996, pet. ref’d). A link to

manufacturing exists when there is “evidence of possession of a drug lab on one’s premises

combined with evidence that the lab has been used on the premises to manufacture the drug alleged,

and in circumstances where the presence of the lab, because of its open location or odor or both, is

shown to have been known to the defendant.” East, 722 S.W.2d at 171-72.

        At trial, two witnesses testified on behalf of the State and four witnesses, including Webb,

testified for the defense. Sandra Noll, a narcotics investigator, testified that an anonymous tip that

“somebody had been cooking meth all night at a motorcycle shop” led her to Webb’s business in

Wilson County. Upon arriving at the shop on a Sunday morning, Noll encountered Webb, Robert

Bishop, David Kozekwa, and Valerie Egert. Webb was at the back of the shop in an enclosed room.

Webb, the owner of the motorcycle shop, signed a consent to search form. During the search of the

premises, the following drug and non-drug evidence was photographed and collected from the back

of the shop: a bottle of Red Devil Lye; a coffee pot; coffee filters containing large white pills; a

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Pyrex dish with white powder residue; razor blades; a metal screen filter; a light bulb converted into

a smoking pipe; a syringe; a metal pan containing matchsticks and coffee filters; and a coffee pot

containing sludge. Noll stated the coffee pot sludge was common when making methamphetamine.

       In a Ford Bronco parked at the shop, Noll found a box containing a coffee pot, coffee filters,

hydrogen peroxide, Red Devil Lye, razor blades, a funnel, acetone, charcoal lighter fluid, a postal

scale, a glass skillet, and duct tape. In the work area of the shop, Noll seized a syringe and a beer

can that looked like it had been used to heat methamphetamine. In the grassy area about fifteen feet

from the back of the shop, Noll uncovered a digital scale and modified water hoses—segments of

rubber hose modified with tape and bottle tops—which Noll stated was commonly used to

manufacture methamphetamine. In a pickup truck located at the rear of the shop, Noll recovered a

bottle of Red Devil Lye and coffee filters. In the bedroom area, she recovered two bottles of Red

Devil Lye, a bottle of acetone, a 55-gallon barrel containing hundreds of matchbooks, a microwave

with a large amount of white residue splattered on the inside, and a hotplate. Prior to the search,

Bishop was arrested for possession of methamphetamine. After the search, Webb, Kozekwa, and

Egert were also arrested. Fingerprint evidence was not collected at the shop.

       Joel Budge, a drug analyst for the Texas Department of Public Safety, testified that the

evidence taken from Webb’s shop indicated a methamphetamine manufacturing process called the

“red phosphorus iodine method.”         Budge elaborated on the process used to manufacture

methamphetamine from ephedrine or pseudoephedrine, and noted that certain products are routinely

used in the process, including iodine, lye, segmented water hoses, razor blades, acetone, coffee

filters, hydrogen peroxide, charcoal lighter fluid, and red phosphorus from matchbooks. In relation

to the evidence seized at Webb’s shop, Budge stated that his tests revealed varying amounts of

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methamphetamine on several items. Budge testified that in his expert opinion, the exhibits he

analyzed pertinent to this case were evidence of manufacturing methamphetamine. Budge further

opined that it was reasonably probable for a person working alone to complete the entire processing

and manufacturing of the amount of methamphetamine found at Webb’s shop in four to eight hours.

       Webb testified that he began repairing motorcycles as a hobby, which then progressed to a

full-time repair job, along with fixing lawnmowers, building fences, and other odd jobs. He lived

with his sister, Scarlet Carpenter, who grew tired of the junk pile he had accumulated and stored at

her home. Carpenter found an old building down a back country road for Webb to rent and he used

it as a shop out of which to operate his repair business. Webb leased the shop for about a year before

he was arrested.

       Webb testified that he met Robert Bishop a long time ago, but had been out of touch until

Bishop contacted him after Bishop was released from jail. Webb testified that he attempted to help

Bishop, who drank a lot, by allowing him to stay at the shop in a make-shift bedroom, rent-free.

There was not a bathroom or running water in the shop. Bishop avoided Webb during the day, and

Webb suspected that Bishop had parties at the shop during the night because the neighbors told him

that Bishop was loud and left behind messes. Webb stated that the day before the arrest, he had

decided that Bishop could no longer stay at the shop and had locked up the shop so that Bishop could

not enter. Just as Webb was about to leave with his sister, however, Bishop arrived, drunk, and

demanded his clothes. Webb decided to give Bishop one more chance and allowed him to enter to

get his clothing, but told him to stay no longer than five minutes. The next morning, Webb arrived

at the shop to find Bishop was still there, and it appeared that he had been drinking all night.




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       Webb testified that the lye seized during the search came from Bishop’s Bronco, which he

had assumed Bishop used to clean drains when working with his father on plumbing systems. Webb

stated that the acetone was used to clean motorcycles and that the charcoal lighter fluid was used to

light fires in the fireplace. Webb stated that he had no knowledge that methamphetamine was

manufactured at his business and that Bishop must have done it the day before the search while he

was gone.

       David Kozekwa worked on motorcycles in the shop with Webb. Kozekwa testified that on

the day of the search, Bishop was at the shop before either he or Webb arrived, and he believed that

Bishop had been at the shop the entire night before the search. He stated that acetone was commonly

used in motorcycle repairs, and that he had not noticed any lye around the shop. Kozekwa stated that

he did not like the things Bishop was involved in, and that people often came to the shop looking

for Bishop. Amica Jo Chapa, custodian of records at the Wilson County jail, testified that Webb had

seventy cents on his person when processed into the jail on the day he was arrested. Chapa testified

that Bishop had $309.58 in cash on him the day he was arrested. Finally, Carpenter testified

regarding her dislike and distrust of Bishop.

       Webb contends that the evidence does not prove that he manufactured methamphetamine;

rather, he posits that the evidence shows “the possibility of manufacturing by someone” at the shop,

“in all likelihood, Bishop.” We disagree and hold that the evidence is factually sufficient to support

Webb’s conviction under Count I of the indictment. The record contains sufficient evidence to

affirmatively link Webb to the manufacturing of methamphetamine inside his business. Webb

controlled the premises where the methamphetamine lab was discovered. See East, 722 S.W.2d at

171-72. He was the owner of the motorcycle shop and the lessee of the building. At the time of the

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officers’ arrival, Webb was in the enclosed back room, where the methamphetamine lab was located.

The trial court, as fact finder, could have chosen to disbelieve Webb’s testimony that he was unaware

of the lab.

        Moreover, the testimony regarding Bishop’s unsavory character does not mitigate Webb’s

guilt. The trial court could have discounted Webb’s theory that Bishop was the only participant in

the manufacturing, and instead relied on the testimony regarding the open location of the lab and

readily apparent materials in the shop to reach its verdict. Although there was no direct evidence

showing Webb was present during the manufacturing or that he knew there was methamphetamine

in his shop, we conclude that the trial court, as the trier of fact, could rationally infer and find beyond

a reasonable doubt that Webb manufactured methamphetamine. The verdict is not so against the

great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Webb’s third issue is overruled.

        The judgment of the trial court is affirmed.



                                                          Phylis J. Speedlin, Justice

PUBLISH




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