                               NO. 12-10-00348-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

RANDY DAVID COX,                                §         APPEAL FROM THE 145TH
APPELLANT

V.                                              §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §         NACOGDOCHES COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Randy David Cox appeals his conviction for delivery of a controlled substance. In two
issues, Appellant argues that the trial court should have granted his motion to suppress evidence
and that the evidence was legally insufficient to support his conviction. We affirm.


                                         BACKGROUND
       In September 2010, law enforcement officers in Nacogdoches County obtained a search
warrant to search a property on the basis of an ongoing investigation and information gained from
a confidential informant. The confidential informant told the police that Appellant, along with
another individual, would be manufacturing methamphetamine that evening. Officers executed
the search warrant and found Appellant and Michael Fancher on the property. Officers also found
numerous chemicals that were used in the manufacture of methamphetamines along with a
container of liquid that contained methamphetamines and written materials detailing how to
manufacture methamphetamines.
       Appellant was charged by indictment with the felony offense of delivery of a controlled
substance. Specifically, the grand jury alleged that Appellant possessed, with intent to deliver,
methamphetamines in an amount of more than two hundred grams but less than four hundred
grams. Prior to trial, Appellant moved to suppress the evidence obtained as a result of the search
warrant. Appellant argued that the evidence should be suppressed because the return on the
warrant shows that it was signed on March 9, 2009. All of the other dates on the search warrant
paperwork, including when the warrant was issued and when the judge ordered the police officers
to maintain custody of the recovered items, are in early September 2009. The trial court found
that the March date was a typographical error and overruled Appellant’s motion.
       The case proceeded to trial, and the jury found Appellant guilty as charged. The jury
imposed a sentence of imprisonment for ten years. This appeal followed.


                                           MOTION TO SUPPRESS
       In his first issue, Appellant argues that the trial court erred in overruling his motion to
suppress. Specifically, he argues the evidence should have been suppressed because the return on
the warrant is dated approximately six months before the warrant was issued.
Standard of Review
       A search warrant is a written order, issued by a magistrate and directed to a peace officer,
commanding him to search for any property or thing and to seize the same and bring it before the
magistrate. TEX. CODE CRIM. PROC. ANN. art. § 18.01 (Vernon Supp. 2010). A search warrant
must be supported by probable cause, and the facts supporting probable cause must be included in
an affidavit that sets forth facts establishing that (1) a specific offense has been committed, (2) the
item to be seized constitutes evidence of the offense or evidence that a particular person committed
the offense, and (3) the item is located at or on the person, place, or thing to be searched. Id. at
§ 18.01(c). Probable cause for a search warrant exists if, under the totality of the circumstances
presented to the magistrate, there is at least a “fair probability” or “substantial chance” that
contraband or evidence of a crime will be found at the specified location. See Flores v. State, 319
S.W.3d 697, 702 (Tex. Crim. App. 2010) (citing Illinois v. Gates, 462 U.S. 213, 238, 243 n.13,
103 S. Ct. 2317, 2335 n.13, 76 L. Ed. 2d 527 (1983)).
       Generally, we review a trial court’s ruling on a motion to suppress for an abuse of
discretion. See Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000); see also Ramos v. State,
245 S.W.3d 410, 418 (Tex. Crim. App. 2008). An appellate court must view the evidence in the
light most favorable to the trial court’s ruling. See State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006). We afford almost total deference to a trial court’s determination of historical



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facts. See Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006). We do not engage
in our own factual review; we determine only whether the record supports the trial court’s ruling.
See Rocha, 16 S.W.3d at 12.
Analysis
       Appellant argues that the evidence should have been suppressed because the warrant return
is dated March 9, 2009 but the search warrant was issued in September 2009, the information in
the search warrant affidavit dated from September 2009, and the alleged offense date is in
September 2009. The same page that contains the March 9, 2009 notation also includes a
signature by the magistrate acknowledging that the “Peace Officer” delivered the return to the
court and reiterating an order that the “Peace Officer” maintain custody of the items seized. That
signature is dated September 4, 2009, which is the day after the search warrant was executed
       Texas law requires that an officer, “[u]pon returning the search warrant, [] shall state on the
back of the same, or on some paper attached to it, the manner in which it has been executed and
shall likewise deliver to the magistrate a copy of the inventory of the property taken into his
possession under the warrant.” TEX. CODE CRIM. PROC. ANN. art. 18.10 (Vernon 2005). The
failure to execute a return or the execution of an erroneous return does not serve to “vitiate the
warrant.” See Pecina v. State, 516 S.W.2d 401, 404 (Tex. Crim. App. 1974).
       Two possibilities are suggested by the dates on the search warrant and the return. One is
that the police officer prepared a list of seized items in March 2009, but officers did not seek or
execute the search warrant until September 2009. The other possibility is that the March 2009
notation is a typographical error. The trial court concluded that it was a typographical error.
This is a reasonable conclusion in light of all the other documents. Specifically, the early
September dates are repeated, counting file marks, at least twelve times throughout the search
warrant application, the search warrant affidavit, the search warrant itself, and the return. The
trial court concluded that the March date, which appears only once and was typographically set
rather than handwritten, was an error and that the other dates were correct. The trial court’s
overruling of the motion to suppress was reasonable under the circumstances. We overrule
Appellant’s first issue.




                                     SUFFICIENCY OF THE EVIDENCE



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         In his second issue, Appellant argues that the evidence is legally insufficient to support the
verdict. Specifically, he argues that the evidence is insufficient to show that he possessed
methamphetamines.
Applicable Law
         The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S.
Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); See Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim.
App. 2010) (plurality opinion). Evidence is not legally sufficient 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. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; see also Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Under this
standard, a reviewing court does not sit as a thirteenth juror and may not substitute its judgment for
that of the fact finder by reevaluating the weight and credibility of the evidence. See Brooks, 323
S.W.3d at 899; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a
reviewing court defers to the fact finder’s resolution of conflicting evidence unless that resolution
is not rational in light of the burden of proof. See Brooks, 323 S.W.3d at 899-900. The duty of a
reviewing court is to ensure that the evidence presented actually supports a conclusion that the
defendant committed the crime. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007).
         The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which the defendant
is tried.” Id.
         As charged in the indictment, the State’s evidence had to show that Appellant knowingly
possessed, with intent to deliver, a controlled substance listed in penalty group 1 in an amount of
more than two hundred grams and less than four hundred grams. TEX. HEALTH & SAFETY CODE
ANN. § 481.112(e) (Vernon 2010). Methamphetamines are listed in penalty group 1. Id. §
481.102(6) (Vernon 2010).




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Analysis
        Appellant argues that the evidence does not show that he possessed methamphetamine.
He points out that he did not own the property where the methamphetamine lab was located, and he
argues that he was merely present when the police arrived.
        The confidential informant used by the police to obtain the warrant testified.                          His
testimony at trial differed in some respects from what the police reported in the affidavit submitted
in support of the search warrant. For example, the affidavit states that the confidential informant
saw Appellant in possession of hoses, Coleman fuel, glass ware, mason jars, red phosphorous,
Sudafed, coffee filters, and a liquid substance. The confidential informant testified that he saw
Appellant in possession of Coleman fuel and hoses, but not Sudafed. This suggests, Appellant
contends, that his testimony is not to be believed.
        The jury’s verdict did not rest entirely on the testimony of the confidential informant.
Appellant admitted that he had manufactured methamphetamine at the location where he was
arrested with two other individuals at another time. He also admitted to engaging, or beginning to
engage, in a transaction with the confidential informant for five hundred pills that were a raw
material for methamphetamines.
        Additionally, Michael Fancher, who was also arrested for the same offense, testified that
he and Appellant had “cooked” methamphetamines in the lab at his house a day or two before the
police raided the lab. He testified that the methamphetamines found by the police were the drugs
they had manufactured, and that Appellant had helped gather some of the pills and acetone that
was used in the manufacturing process. Fancher was not a disinterested witness. He stated that
the only reason he testified against Appellant is because Appellant had “slandered” Fancher’s
mother. Finally, Appellant was present in the vicinity of the drug lab when the police arrived.
        Appellant is correct that 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. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005).1 In order to
determine whether the accomplice witness testimony is corroborated, we must eliminate all
accomplice evidence and determine whether the other inculpatory facts and circumstances in


        1
           The accomplice witness rule is a statutorily imposed review and is not derived from federal or state
constitutional principles that define the legal sufficiency standards. See Malone v. State, 253 S.W.3d 253, 257 (Tex.
Crim. App. 2008). We address both the accomplice witness rule and the legal sufficiency of the evidence together
because Appellant does so in his brief.


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evidence tend to connect the appellant to the offense. See McDuff v. State, 939 S.W.2d 607, 612
(Tex. Crim. App. 1997). The nonaccomplice evidence does not have to directly link the appellant
to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt; but rather, the
nonaccomplice evidence merely has to tend to connect the appellant to the offense. Id. at 613.
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. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).
Moreover, evidence that the defendant was near or at the place of the offense around the time of its
occurrence is proper corroborating evidence. See Burks v. State, 876 S.W.2d 877, 888 (Tex.
Crim. App. 1994).
         Evidence of Appellant’s guilt is sufficiently corroborated, and the evidence is sufficient to
support the conviction.            Appellant’s version of events was that he did participate in
manufacturing methamphetamine with Fancher, but he was not involved in the particular
manufacturing process that had recently been concluded. Furthermore, his presence at the scene
was simply an unfortunate happenstance. The jury was entitled to disbelieve his version of events
and to conclude that he was, in fact, a participant in the manufacturing process of the
methamphetamines found at the lab and that he possessed the drugs found by the police. See
Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App. 2000); Sharp v. State, 707 S.W.2d
611, 614 (Tex. Crim. App. 1986). We hold that the evidence was sufficient to support the verdict
and the accomplice testimony was sufficiently corroborated. We overrule Appellant’s second
issue.


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


                                                                 SAM GRIFFITH
                                                                    Justice

Opinion delivered July 29, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



                                              (DO NOT PUBLISH)




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