
NO. 07-06-0263-CR
NO. 07-06-0264-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 17, 2007
__________________________________


RICKY LYNN MARSH, 

									Appellant

v.

THE STATE OF TEXAS, 

									Appellee
_________________________________

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

NOS. 6919 & 6920; HON. LEE WATERS, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
	Ricky Lynn Marsh (appellant) appeals his convictions for possessing a controlled
substance with intent to deliver and possessing certain chemicals (anhydrous ammonia)
with intent to manufacture controlled substances.  Via three issues, he contends that 1) the
trial court erred by failing to suppress evidence that was obtained unlawfully and 2)
§481.124 of the Texas Health and Safety Code violates his constitutional rights to due
process and a fair trial.  We affirm.
Background
	On April 4, 2004, a search warrant was issued authorizing the search of appellant's
residence.  The warrant was founded upon the affidavit of Officer Vincent Marasco
(Marasco).  In his affidavit, Marasco stated that 1) appellant's premises contained
methamphetamine and the components of methamphetamine, i.e. anhydrous ammonia,
ether and Sudafed, 2) appellant was a known methamphetamine user, 3) Pampa police
officer Jarrett Parsons smelled anhydrous ammonia and ether coming from appellant's
home on March 26, 2004, and March 28, 2004, 4) Deputy Scott Larue (Larue) observed
Michael Craig Knutson (Knutson), a known methamphetamine user leave appellant's
premises on April 4, 2004, 5) due to Knutson's erratic driving as he left appellant's home,
Larue began to follow him, 6) Knutson continued to drive erratically, which conduct led
Larue to believe Knutson was attempting to evade him, 7) Larue observed Knutson throw
a Pepsi bottle out of the car which resulted in Larue stopping and arresting Knutson for
littering, 8) Larue stated that he had lost Knutson while following him on Atchison Street
and later returned to the street only to find methamphetamine on the ground, 9) Knutson
later admitted to owning the methamphetamine and having obtained it from appellant, and
10) Knutson also disclosed that appellant not only had more methamphetamine at his
residence but also was manufacturing it there.
	Based on Marasco's affidavit, the trial court issued the warrant in question.  And,
upon its execution both methamphetamine and anhydrous ammonia were discovered at
the location searched.  This resulted in appellant's indictment for the crimes of which he
was later found guilty by a jury.
Issue One - False Statements in the Affidavit Supporting Search Warrant
	In his first issue, appellant attacks the search warrant and the affidavit in support of
it by contending that various statements in the affidavit were false.  This ground was not
asserted below, however.  Rather, appellant thought the warrant defective solely on the
basis that it omitted information regarding Knutson's reliability and trustworthiness. 
Consequently, the issue before us was not preserved, is waived, and is overruled.  See
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that the grounds
for objection raised on appeal must comport with those raised at trial, otherwise they are
waived).
Issue Two - Affidavit Fails to Show Informant Reliable and Trustworthy
	Next, appellant contends that Larue's affidavit was fatally defective because it failed
to "establish the credibility of [Knutson] necessary to establish probable cause."  We
disagree and overrule the issue.
	It is beyond dispute that a search warrant may not be issued unless sufficient facts
are presented to a magistrate which permit him to conclude that probable cause exists
supporting the warrant's issuance. Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon
2005); Taylor v. State, 54 S.W.3d 21, 24 (Tex.App.-Amarillo 2001, no pet.).  Furthermore,
these facts must not only be contained in a "sworn affidavit" accompanying the application
for the warrant but also illustrate that 1) a specific offense was committed, 2) the
specifically described property or items to be sought and seized constitute evidence of that
offense or evidence that a particular person committed the offense, and 3) the property or
items in question are located at or on the particular person, place or thing to be searched. 
Tex. Code Crim. Proc. Ann. art. 18.01(c); Taylor v. State, 54 S.W.3d at 24.   Whether the
facts mentioned in an affidavit are adequate to establish probable cause depends on the
totality of the circumstances.  Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim.
App.1996); Taylor v. State, 54 S.W.3d at 24.  They do so when they permit one to
reasonably conclude that the object of the search is probably on the premises.  Id.  In other
words, the magistrate must have before him sufficient facts upon which to reasonably
conclude that "there is a fair probability that contraband or evidence of a crime will be
found in a particular place."  Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76
L.Ed.2d 527 (1983); Taylor v. State, 54 S.W.3d at 24.  And, it is our duty to insure that the
magistrate had a "'substantial basis'" for so concluding.  Illinois v. Gates, 462 U.S. at
238-39, 103 S.Ct. at 2332, 76 L.Ed.2d 527; Taylor v. State, 54 S.W.3d at 24.  Finally, in
reaching his decision, the magistrate may draw reasonable inferences from facts and
circumstances alleged in the affidavit.  Ramos v. State, 934 S.W.2d at 363; Taylor v. State,
54 S.W.3d at 24.
	  Whether or not information from an unnamed informant alone may establish
probable cause, we have more than that here.  First, appellant was a known drug user. 
Second, Knutson inculpated himself when admitting that the methamphetamine found was
his and that he bought it from appellant.  See Montgomery v. State, No. 02-03-425-CR,
2005 Tex. App. LEXIS 3467 (Tex. App.-Fort Worth May 5, 2005, pet. ref'd) (not designated
for publication) (stating that a statement against penal interest is inherently credible and
may be sufficient, in and of itself, to establish probable cause); Cornealius v. State, 870
S.W.2d 169, 172 (Tex. App.-Houston [14th Dist.] 1994) aff'd, 900 S.W.2d 731 (Tex. Crim.
App. 1995) (stating the same).  Third, Knutson was actually seen by the police leaving
appellant's house, and he exhibited a consciousness of guilt in attempting to evade
apprehension as he drove from that house.  Fourth, the smell of anhydrous ammonia and
ether (precursors of methamphetamine) had been detected emanating from appellant's
home days earlier.  These indicia were enough to independently verify the reliability and
bolster the substance of Knutson's information.  See Abercrombie v. State, 528 S.W.2d
578, 583-85 (Tex. Crim. App. 1974) (holding that the absence of an allegation of prior
reliability is not ipso facto a fatal defect in the affidavit and other factors may be considered
in determining reliability including a statement against penal interest).  Therefore, the
contents of the affidavit sufficed to show probable cause that methamphetamine would be
found on appellant's premises.
Issue Three - Burden of Proof for Possession of Chemicals
	Via his final issue, appellant attacks his conviction for possessing anhydrous
ammonia.  The conviction was allegedly unconstitutional because §481.124 of the Texas
Health and Safety Code created a presumption favoring the State and lessening its burden
of proof.  We disagree and overrule the issue.
	Mandatory presumptions are a cause of concern and may improperly lessen the
State's burden of proof by either removing the presumed element from the case entirely
or impermissibly shifting the burden to the defendant.  See, e.g., Sandstrom v. Montana,
442 U.S. 510, 523-24, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (finding a jury instruction
violated due process when it included a presumption that lessened the State's burden to
prove the essential elements of the case beyond a reasonable doubt).  Moreover, phrases
such as "are presumed" or "the law presumes" evince mandatory presumptions.  Webber
v. State, 29 S.W.3d 226, 230-31 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd).
	By contrast, permissive presumptions are generally constitutional.  See Willis v.
State, 790 S.W.2d 307, 310 (Tex. Crim. App. 1990) (en banc).  They allow, but do not
require, the jury to infer an element of the offense from predicate facts established by the
State.  Id.  More importantly, to transform a mandatory presumption into a permissive one
so it can pass constitutional muster, the legislature enacted §2.05 of Texas Penal Code. 
Id.; Garrett v. State, 159 S.W.3d 717, 720 (Tex. App.-Fort Worth 2005, no pet.).  That
provision obligates the trial court to include the following in its jury instruction:
	if the existence of the presumed fact is submitted to the jury, the court shall
charge the jury, in terms of the presumption and the specific element to
which it applies, as follows:

		(A) that the facts giving rise to the presumption must be proven
beyond a reasonable doubt;

		(B) that if such facts are proven beyond a reasonable doubt the jury
may find that the element of the offense sought to be presumed exists, but
it is not bound to so find;

		(C) that even though the jury may find the existence of such element,
the state must prove beyond a reasonable doubt each of the other elements
of the offense charged;  and

		(D) if the jury has a reasonable doubt as to the existence of a fact or
facts giving rise to the presumption, the presumption fails and the jury shall
not consider the presumption for any purpose.

Tex. Penal Code Ann. §2.05(a)(2) (Vernon Supp. 2006).	

	Next, the presumption involved here arises from §481.124(c)(2) of the Health and
Safety Code.  According to that provision,
	. . . a substance is presumed to be anhydrous ammonia if the substance is
in a container or receptacle that is:  (1) designed and manufactured to
lawfully hold or transport anhydrous ammonia; or (2) not designed and
manufactured to lawfully hold or transport anhydrous ammonia if:  (A) a
properly administered field test of the substance using a testing device or
instrument designed and manufactured for that purpose produces a positive
result for anhydrous ammonia; or (B) a laboratory test of a water solution of
the substance produces a positive result for ammonia.

Tex. Health & Safety Code Ann. §481.124(c)(2) (Vernon Supp. 2006).  And, this was told
to the jury.  Yet, the statutory language of §2.05(a)(2) was also included in the instruction. 
Given that circumstance, we cannot say the instruction crossed into the zone of
unconstitutionality.
	Having overruled all issues, we affirm both judgments of the trial court.

							Brian Quinn
						          Chief Justice

Do not publish.

