                                 NO. 12-12-00243-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JEFFREY DALE CHAMBERLAIN,                       §      APPEAL FROM THE 420TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      NACOGDOCHES COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Appellant, Jeffrey Dale Chamberlain, was charged by indictment of possession of a
controlled substance with intent to deliver (count one) and possession of certain chemicals with
intent to manufacture methamphetamine (count two). In a bench trial, the trial court found
Appellant guilty of the offenses charged and assessed his punishment at imprisonment for thirty
years on each count. Appellant presents two issues. We affirm.


                                         BACKGROUND
       Through a confidential informant, Nacogdoches Deputy Sheriff Kenneth King received
word that there was going to be a methamphetamine “cook” at an unoccupied house and storage
building on the Koonce Road owned by the Commander family. Deputy King assembled a force
of two teams of constables and sheriff’s deputies to execute the search warrant obtained based on
the informant’s report. One group entered the house while the other team forced entry into the
large storage building located approximately forty feet behind the house. The officers found four
people in the house: Chris Commander, the son of the owners; Rebecca Middleton; an
unidentified woman, and Appellant.
       In the house, the officers found clear plastic baggies containing 1.97 grams of
methamphetamine, coffee filters containing 1.03 grams of methamphetamine, and small
quantities of the drug in Chris Commander’s pants pocket and in the bed headboard in the
bedroom. The police also found a container in a backpack in the kitchen containing 207.84
grams of liquid containing methamphetamine at some stage of production.
        The officers making a simultaneous entry into the large storage building encountered the
strong odor peculiar to methamphetamine production. They found a warm flask and two ecstasy
tablets. They also found empty blister packets used to package allergy or cold tablets containing
pseudoephedrine or ephedrine, chemicals used in the manufacture of methamphetamine. The
officers found no drugs or paraphernalia on Appellant’s person.
        Called by the State, Chris Commander told the court that he and Appellant had been
together for two or three days preparing to cook meth before the officers broke in on them.
Commander testified that Appellant brought red phosphorous and iodine and he provided the
pseudoephedrine. According to Commander, Appellant did his “cook” in the large storage
building while he made a batch in the house. They planned to divide their production equally.
        Appellant testified that although he had participated in making meth with Commander in
the past, he was not involved in the process in progress when the officers broke in on them. He
had come to the house only to buy drugs for his own use, he claimed. Appellant acknowledged
that, with a couple of interruptions, he had been at the house for six hours before the officers
came.    He was there, he insisted, waiting to buy one and one-half grams of meth from
Commander, but not to make it himself. He denied that he had supplied Commander with red
phosphorous and iodine.     He vigorously denied selling methamphetamine to anyone.          The
$140.00 he had when arrested approximated the normal price for the one and one-half grams of
methamphetamine he intended to buy from Commander.


                        CORROBORATION OF ACCOMPLICE TESTIMONY
        In his first issue, Appellant contends that there is no evidence tending to connect him
with the offenses that corroborates the testimony of the accomplice, Chris Commander.
Applicable Law
        A conviction may not be sustained solely on the testimony of an accomplice unless there
is corroborating evidence that tends to connect the defendant with the offense committed. TEX.
CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005). The corroboration is insufficient if it merely
shows the commission of the offense. Id. In order to determine if the accomplice witness



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testimony is corroborated, the reviewing court must eliminate from consideration the accomplice
testimony and determine whether the other inculpatory facts and circumstances in evidence tend
to connect the appellant to the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App.
1997). The nonaccomplice evidence does not have to directly connect the appellant to the crime,
nor, standing alone, does it have to establish his guilt beyond a reasonable doubt. Id. at 613.
The nonaccomplice evidence merely has to tend to connect the appellant to the offense. Id.
Mere presence at or near the scene of the offense is not sufficient corroboration. Badillo v. State,
963 S.W.2d 854, 858-60 (Tex. App.–San Antonio 1998, pet. ref’d). However, the appellant’s
presence in the company of the accomplice before, during, and after the commission of the
offense, coupled with other suspicious circumstances, may tend to connect the appellant to the
offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).
Discussion
       Chris Commander testified that he and Appellant agreed to do a methamphetamine
“cook” two or three days before their arrest on March 6, 2009. According to Commander,
Appellant brought red phosphorous and iodine. Commander already had 300 pills containing
pseudoephedrine, the other necessary ingredient. Commander told the court that he gave 200
tablets containing pseudoephedrine to Appellant. They intended to split the finished product
evenly between them. Appellant did his “cook” in the large storage building behind the house
while Commander did another inside the dwelling. Commander testified that Appellant sold at
least a part of his meth to the two or three people who came by the property before the officers
arrived on March 6, 2009.
       At the time of trial, Commander was serving an eight year prison sentence for the same
offense Appellant allegedly committed.
       Appellant testified in his own behalf.          According to Appellant, he arrived at
Commander’s house around 11:30 a.m. on March 6, 2009, with $140.00 intending only to buy
methamphetamine. He was there at 6:30 p.m. when the police arrived because he was still
waiting for Commander to have a finished product to sell.
       Appellant admitted that in the past he had participated in the manufacture of meth with
Commander. But he insisted he was not involved in any way with the production process
concluded on the day of their arrest. He denied Commander’s assertion that he had sold drugs
that day.    Appellant admitted being an intravenous drug user for thirty years.         Appellant



                                                 3
acknowledged that he had been at Commander’s two days before they were arrested but only to
buy a “fifty dollar bump of methamphetamine.”
       When the police arrived at 6:30 p.m., they discovered several grams of methamphetamine
already prepared. It is a reasonable assumption that an ordinary customer, there only to buy
drugs, would have bought the methamphetamine on hand and left. Appellant’s presence at the
place of manufacture for the better part of six hours belies his claim to have been only a
customer and is a strongly suspicious circumstance connecting him to the charged offense. His
drug addiction and confessed participation in previous methamphetamine making with
Commander are also suggestive of Appellant’s complicity. These circumstances, coupled with
Appellant’s presence at the scene with Commander during and after the methamphetamine
“cook,” tend to connect Appellant to the offenses charged. They are sufficient corroboration of
the accomplice’s testimony. Appellant’s first issue is overruled.


                                   POSSESSION OF CHEMICAL
       In count two of Appellant’s indictment, the State alleged Appellant possessed
pseudoephedrine or acetone with the intent to manufacture methamphetamine.              Appellant
maintains the evidence is factually insufficient to support his conviction for this offense. In
Brooks v. State, the court of criminal appeals held the Jackson v. Virginia standard to be the
only standard a reviewing court should apply in determining the sufficiency of the evidence. 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). In considering Appellant’s issue, we shall apply the
Jackson v. Virginia standard.
Standard of Review and Applicable Law
       Evidence is insufficient if, when viewing the evidence in a light most favorable to the
verdict, no rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979).
       A person commits an offense if, with intent to unlawfully manufacture a controlled
substance, the person possesses or transports an immediate precursor, a chemical precursor, or an
additional chemical substance named as a precursor by the director of the Texas Department of
Public Safety under Texas Health and Safety Code Section 481.077(b)(1). TEX. HEALTH &
SAFETY CODE ANN. § 481.124(a)(2)(3) (West 2010). The Texas Controlled Substances Act



                                                4
defines pseudoephedrine as a “chemical precursor.” Id. § 481.002(51)(O) (West 2010). The
indictment alleges that Appellant “with intent to unlawfully manufacture a controlled substance,
namely, methamphetamine, possess[ed] an immediate precursor, to-wit: pseudoephedrine or a
chemical precursor, to-wit: acetone[.]”
Discussion
         Deputy Kenneth King led the team that breached the door into the large storage shed
where the team encountered the strong, peculiar odor associated with methamphetamine making.
They also discovered a substantial quantity of empty blister packs in a trash can. Deputy King
testified that blister packs are typically used to package over the counter cold and allergy
medicines that contain pseudoephedrine or ephedrine, which are necessary precursors to the
manufacture of methamphetamine. The State did not introduce the blister packs into evidence,
nor was there any testimony describing their labeling.
         However, Chris Commander testified that he gave Appellant 200 pills containing
pseudoephedrine that Appellant needed in making his batch of meth in the storage building.
Commander also testified that “we had acetone.”
         We conclude the evidence is sufficient to sustain Appellant’s conviction on count two of
the indictment. Appellant’s second issue is overruled.


                                                   DISPOSITION
         Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.



                                                                                 BILL BASS
                                                                                  Justice

Opinion delivered September 4, 2013.
Panel consisted of Griffith, J., Hoyle, J. and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                              (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         SEPTEMBER 4, 2013


                                          NO. 12-12-00243-CR


                               JEFFREY DALE CHAMBERLAIN,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                 Appeal from the 420th District Court
                      of Nacogdoches County, Texas (Tr.Ct.No. F0916778)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below
for observance.

                    Bill Bass, Justice.
                    Panel consisted of Griffith, J., Hoyle, J. and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
