                          NUMBER 13-10-00113-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG

TRACE BRITTON ADAMS,                                                   Appellant,

                                        v.

THE STATE OF TEXAS,                                                     Appellee.


                   On appeal from the 24th District Court
                        of Calhoun County, Texas.


                      MEMORANDUM OPINION
           Before Justices Rodriguez, Benavides and Perkes
             Memorandum Opinion by Justice Benavides
      A Calhoun County jury convicted appellant Trace Britton Adams of possession of

pseudoephedrine designated as an immediate precursor, with intent to manufacture

methamphetamine.    See TEX. HEALTH & SAFETY CODE ANN. § 481.124 (West 2010).

The jury could not, however, reach a decision as to punishment, and the trial court
declared a mistrial. A new jury, selected solely for the punishment phase, sentenced

Adams to eleven years’ imprisonment with a $1,000 fine and court costs.            In three

issues, Adams appeals his conviction and sentence on the grounds that (1) insufficient

evidence connected Adams to any pseudoephedrine or other items seized on the

property; (2) indicted co-defendant Dawn McDonald’s testimony implicating Adams in

the crime was uncorroborated; and (3) the trial court violated Adams’s right to a jury trial

by retrying only the punishment phase of his case. We affirm.

                                   I.     BACKGROUND

       Adams was arrested, indicted, and charged with possession of pseudoephedrine

with intent to unlawfully manufacture methamphetamine. The charge—to which Adams

pleaded not guilty—stemmed from an October 27, 2008 law enforcement raid of a mobile

home property possessed by Adams’s then-girlfriend and co-defendant, McDonald.

Police obtained the search warrant based upon two separate tips provided by informant

Jimmy Colburn and McDonald that Adams was running a methamphetamine laboratory

on the property.   It appears that at the time of the raid, Adams lived on the property with

McDonald and her children.

       Law enforcement executed a search warrant and seized various items from the

mobile home and surrounding property including:      (1) chemicals and fluids identified as

part of the methamphetamine manufacturing process; (2) stripped lithium batteries; (3) a

laptop computer; (4) a digital scale; (5) dry ice; (6) handwritten chemical formulas and

calculations; (7) sales receipts from various stores evidencing the purchase of these

items; and (8) crushed-up pseudoephedrine in an unmarked pill bottle.

       During the guilt/innocence phase of the trial, the jury heard testimony from law


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enforcement officers who conducted the raid on the property. The officers testified about

the subsequent investigation about the items seized and the purpose they served.                 The

jury also heard testimony from McDonald, who testified about the items seized, how they

were procured, and how they were used by Adams to make methamphetamine.                      Adams

did not testify at trial, and prior to voir dire, elected to have the jury assess punishment, if

convicted.     See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 2(b)(2) (West Supp. 2010).

The first jury found Adams guilty of the charged offense, but could not reach a

consensus on punishment.           Consequently, on December 11, 2009, the trial court

declared a mistrial on punishment.

       On February 1, 2010, a new jury was impaneled1 and heard evidence related

solely to the issue of Adams’s punishment.             The second jury sentenced Adams to

eleven years’ imprisonment and assessed a $1,000 fine and court costs.                Following his

punishment, Adams filed a motion for new trial, which was denied by operation of law.

TEX. R. APP. P. 21.8. This appeal ensued.

             II.    ISSUE ONE: SUFFICIENCY OF “AFFIRMATIVE LINKS” EVIDENCE

       By his first issue, Adams argues that the evidence was insufficient to connect him

to any pseudoephedrine or other items to make methamphetamine that were seized by

police in the October 27, 2008 raid because he was only visiting McDonald’s property for

a few days.

       A. Standard of Review

       In assessing a challenge to the sufficiency of the evidence to support a criminal

conviction, we must determine whether the jury was rationally justified in finding guilt

       1
         The Honorable Judge Juergen ―Skipper‖ Koetter presided over the original proceedings, and the
Honorable Judge Joseph P. Kelly presided over the re-trial of punishment.

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beyond a reasonable doubt, considering all of the evidence in a light supporting the

verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d

839, 902 (Tex. Crim. App. 2010) (plurality op.). This standard of review preserves a

jury’s fact-finder and ―weigher of evidence‖ roles ―through a legal conclusion that upon

judicial review all of the evidence is to be considered in the light most favorable to the

prosecution.‖   Jackson, 443 U.S. at 319.       ―[S]ufficiency of the evidence should be

measured by the elements of the offense as defined by the hypothetically correct jury

charge for the case.‖ Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A

correct charge is one that does not increase the State’s burden or restrict the State’s

theories of liability, but rather one that ―adequately describes the particular offense for

which the defendant was tried.‖ Id.

       B. Discussion

       Adams was convicted of possession of pseudoephedrine, designated as an

immediate precursor, with intent to manufacture methamphetamine.         See TEX. HEALTH

& SAFETY CODE ANN. § 481.124 (West 2010).              Adams’s argument rests on the

possession element of the charged crime. To prove unlawful possession, the State

must prove that the defendant (1) exercised control, management, or care over the

substance; and (2) knew the matter possessed was contraband. Furthermore, ―[w]hen

a defendant is not in exclusive possession of the place where the controlled substance is

found, the State must prove additional independent facts and circumstances that

affirmatively link the defendant to the contraband in such a way that it can be concluded

that the defendant had knowledge of the contraband and exercised control over it.‖

Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2004, no pet.). ―An


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affirmative link generates a reasonable inference that the defendant knew of the

contraband’s existence and exercised control over it.‖          Id.   This connection must

establish that a defendant’s connection to the contraband found ―was more than just

fortuitous.‖   Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc).

The prevailing policy behind this so-called ―affirmative links rule‖ is to protect an innocent

bystander from conviction merely because he or she was in close proximity to someone

else’s contraband. Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006).

       Adams argues that several factors indicate a failure by the State to affirmatively

link him to the pseudoephedrine, including: (1) that Adams made no attempt to flee the

scene; (2) that police testimony at trial that could not identify who was driving the

suburban, where a laptop computer was found; (3) no evidence existed showing that

Adams knew where the contraband was located; (4) Adams made no incriminating

statements connecting him to the contraband; (5) Adams had no contraband on his

person at the time of arrest nor was there any indication that he was ―high‖; (6) others,

namely McDonald, were present at the time of the search; and (7) that a state law

enforcement witness described the searched property as a ―small‖ meth lab. While

some of the factors asserted by Adams are relevant to an affirmative-links analysis, they

are neither exclusive nor mandatory to our analysis because each case is examined on

its own facts. See Nhem, 129 S.W.3d at 699–700 (citing Roberson v. State, 80 S.W.3d

730, 736 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (noting that ―a factor that

contributes to the sufficiency of the evidence in one case may be of little or no value in a

different case.‖).

       Preliminarily, there is no question as to whether Adams lived on the property at


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the time of the October 27, 2008 raid.      By his own admission in his brief, Adams was

staying on McDonald’s property when police executed the search warrant and

discovered the contraband.      McDonald also testified that Adams moved back onto her

property beginning October 11, 2008. The evidence does not support, however, that

Adams exercised exclusive control of the place where the pseudoephedrine was found.

Therefore, we continue our analysis under the Nhem standard.

       On the issue of whether there are sufficient links to support the element of

possession, State’s witness, former Port Lavaca police officer, Donald Keil, testified that

during the raid, McDonald stated that an unmarked pill bottle in her bedroom—containing

a substance later tested to be crushed-up pseudoephedrine—belonged to Adams. This

identification of ownership, without more, is insufficient.     See Nhem, 123 S.W.3d at 699.

Accordingly,   the   trial   court   admitted   the   State’s    evidence   that   linked   the

pseudoephedrine and other items to Adams’s ownership, control, and knowledge of

existence including:         (1) purchase receipts of pseudoephedrine from various

pharmacies in and around Port Lavaca that were found in Adams’s wallet, which

documented various purchases of several grams of pseudoephedrine over a two-week

period; (2) business records and video captures of the individual pharmacies’ points of

sale that identified Adams as the buyer of the pseudoephedrine and corroborated the

purchase receipts; and (3) several research documents found on Adams’s laptop

computer that dealt with general information about the history and use of

methamphetamines, how to manufacture methamphetamines, and information on the

U.S. Drug Enforcement Agency’s efforts to regulate the sale of methamphetamines by

pharmacies.


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      Viewed in a light supporting the verdict, we hold that the State offered sufficient

evidence to link Adams to the pseudoephedrine found on the property that was

searched. We overrule Adams’s first issue.

            III.   ISSUE TWO:     SUFFICIENCY OF CORROBORATION EVIDENCE

      By his second issue, Adams argues that evidence, as required by article 38.14 of

the Texas Code of Criminal Procedure, insufficiently corroborated co-defendant

McDonald’s testimony, which implicated Adams in the crime charged.          See TEX. CRIM.

PROC. CODE ANN. art. 38.14 (West 2005).

      A. Standard of Review

      The Texas Court of Criminal Appeals laid out the standard of review for sufficiency

of non-accomplice evidence as follows:

      When reviewing the sufficiency of non-accomplice evidence under Article
      38.14, we decide whether the inculpatory evidence tends to connect the
      accused to the commission of the offense. The sufficiency of
      non-accomplice evidence is judged according to the particular facts and
      circumstances of each case. The direct or circumstantial non-accomplice
      evidence is sufficient corroboration if it shows that rational jurors could have
      found that it sufficiently tended to connect the accused to the offense. So
      when there are conflicting views of the evidence—one that tends to connect
      the accused to the offense and one that does not—we will defer to the
      factfinder's resolution of the evidence. Therefore, it is not appropriate for
      appellate courts to independently construe the non-accomplice evidence.

Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).               Furthermore, the

corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt,

but rather tends to connect the accused to the commission of the crime and show that

rational jurors would connect the defendant to the offense. See Malone v. State, 253

S.W.3d 253, 257 (Tex. Crim. App. 2008).




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       B. Discussion

       Adams asserts that the State relied almost exclusively on co-defendant

McDonald’s testimony to link Adams to the crime.             We disagree.       In addition to

McDonald’s testimony, the State relied upon (1) the research documents on Adams’s

laptop computer; (2) receipts evidencing purchases of pseudoephedrine and various

other items linked to the manufacture of methamphetamines found in Adams’s wallet;

and (3) corroboration video and business record evidence of Adams’s purchases

reflected on the receipts.    In our sufficiency review, we cannot supplant the jury’s verdict

with our own view of the evidence.       See Smith, 332 S.W.3d at 442.       Instead, we give

deference to the jury’s resolution of the facts and conclude that the evidence was

sufficient to connect Adams to the crime charged and did not rest exclusively on

McDonald’s testimony.        See id. We overrule Adams’s second issue.

                    IV.      ISSUE THREE: RETRIAL ON PUNISHMENT ONLY

       By his third issue, Adams argues that the trial court violated his right to trial by jury

under article 1.12 of the code of criminal procedure when it ordered a retrial only on the

issue of punishment and not also on the issue of guilt and innocence.          Adams argues

this violation requires a new trial on both phases.    See TEX. CRIM. PROC. CODE ANN. art.

1.12 (West 2005).

       A. Standard of Review and Applicable Law

       A defendant is entitled to a new trial if the trial court has misdirected the jury about

the law or has committed some other material error likely to injure the defendant’s rights.

TEX. R. APP. P. 21.3(b).       The decision to grant or deny a new trial lies within the

discretion of the trial court and will not be disturbed unless the trial court’s decision was


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arbitrary or unreasonable.    See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)

(en banc) (citing State v. Gonzalez, 855 S.W.2d 692, 695 n. 4 (Tex. Crim. App. 1993) (en

banc)). Therefore, our review on this issue is limited to whether the trial court’s decision

to deny a new guilt-innocence trial in this case was arbitrary or unreasonable.

       The right to trial by jury as to guilt or innocence is both constitutional and statutory

in Texas.   See U.S. CONST. amend. VI; TEX. CONST. art. I, § 15; TEX. CODE CRIM. PROC.

ANN. art. 1.12 (West 2005). However, the right to have a jury assess punishment is

purely statutory.   See TEX. CODE CRIM. PROC. ANN. art. 37.07 §2 (b) (West Supp. 2010);

Allen v. State, 552 S.W.2d 843, 847 (Tex. Crim. App. 1977) (recognizing that ―an

accused has no constitutional right to have a jury assess punishment.‖).                  When

interpreting statutes, we must effectuate legislative intent or purpose by giving effect to

the plain meaning of the statute.       See Luna v. State, 70 S.W.3d 354, 361 (Tex.

App.—Corpus Christi 2002, pet. ref’d).

       The Texas Code of Criminal Procedure states that punishment shall be assessed

by the same jury, except as provided by section 3(c) of the same article. TEX. CODE CRIM.

PROC. ANN. art. 37.07 § 2(b). Section 3(c) states, in part:

       In the event the jury shall fail to agree on the issue of punishment, a mistrial
       shall be declared only in the punishment phase of the trial, the jury shall be
       discharged, and no jeopardy shall attach. The court shall impanel another
       jury as soon as practicable to determine the issue of punishment.

Id. § 3(c) (West Supp. 2010).

       B. Discussion

       We read article 37.07 of the code of criminal procedure as an intention on the part

of the legislature to bifurcate criminal trials into two phases—first, as to guilt/innocence

and second, as to punishment.        See TEX. CRIM. PROC. CODE ANN. art. 37.07 (West.

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Supp. 2010); Luna, 70 S.W.3d at 361.                  Adams argues that a stand-alone,

punishment-phase jury that did not hear his full case denies him a fact-finder who had

seen the ―whole picture‖ before assessing punishment.              We disagree.     Adopting

Adams’s interpretation of the statute would ―negate the system of bifurcation clearly

intended by the Legislature, and would in effect transform the determination of guilt and

punishment into a single proceeding.‖ See id.         Through article 37.07, section 3(c), the

Texas legislature provided a clear safeguard of a defendant’s rights and mechanism for

retrial when a jury cannot agree on punishment.          First, to ensure that a defendant’s

constitutional rights are not violated, the statute is clear that ―no jeopardy shall attach,‖

upon the declaration of a mistrial as to the punishment phase. TEX. CODE CRIM. PROC.

ANN. art. 37.07 § 3 (c).    Second, the statute admonishes the trial court to impanel

another jury to ―determine the issue of punishment,‖ as soon as practicable.               Id.

Because we conclude that the trial court’s decision was not arbitrary or unreasonable

and, thus, did not abuse its discretion in declaring a mistrial on punishment only and

ordering a retrial solely as to that phase, we overrule Adams’s third issue.

                                    V.     CONCLUSION

       The judgment of the trial court is affirmed.




                                                           ________________________
                                                           GINA M. BENAVIDES,
                                                           Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
15th day of December, 2011.

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