James Mitchell Murphy v. State

NO. 07-04-0536-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

DECEMBER 19, 2006
______________________________

JAMES MITCHELL MURPHY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 46TH DISTRICT COURT OF HARDEMAN COUNTY;

NO. 3802; HONORABLE TOM NEELY, JUDGE
_______________________________

Before CAMPBELL and HANCOCK, JJ.1

OPINION

James Mitchell Murphy brings this appeal from his conviction for transporting

anhydrous ammonia with the intent to manufacture a controlled substance. The court

assessed punishment in accordance with the jury’s verdict at seven years confinement.

In ten issues appellant challenges the sufficiency of the evidence supporting his conviction,

the admission of testimony and the procedures used in selecting the jury. We affirm.

1
Don H. Reavis, Justice (Ret.) was on the panel that heard oral argument. He did
not participate in the decision. TEX . R. APP. P. 41.1(b).
 Quanah police chief Edward Urban, Jr. received a call from a resident about

suspicious activity at a nearby farm. While Urban was watching from the road, he saw two

trucks leave the farm. He recognized one as belonging to Lori Cheek, the wife of an

operator of the farm. As the second truck passed, Urban saw “tanks” in the bed and

smelled anhydrous ammonia. The manner in which the ammonia was being transported

made him suspect it could be linked to the manufacture of methamphetamine so he

stopped the vehicle. In the truck bed he found seven tanks, which he alternately described

as butane or propane tanks. One lacked any valve and several had brass valves. At least

one valve had a blue discoloration which he said was evidence it had been exposed to

anhydrous ammonia. He arrested the driver and appellant, who was the only passenger.

After being advised of his rights in accordance with Miranda v. Arizona2 appellant

gave a written statement in which he described driving to the farm with Cheek’s assistance

where they used a hose to fill the tanks. The statement continued, “We were to sell the

anhydrous ammonia and split the money with Lori.”

Appellant was charged with violating section 481.124 of the Health and Safety

Code, making the possession or transportation of anhydrous ammonia with the intent to

unlawfully manufacture a controlled substance a felony offense. Tex. Health & Safety Code

Ann. § 481.124(a) (Vernon Supp. 2006). The statute creates a presumption of intent to

manufacture methamphetamine if the actor possesses or transports anhydrous ammonia

in a container not designed or manufactured to lawfully be so used. Tex. Health & Safety

2
384 U.S. 436, 86 S.Ct.1602, 16 L.Ed.2d 694 (1966).

2
Code Ann. § 481.124(b)(1) (Vernon Supp. 2006). At the conclusion of a two-day trial the

jury found appellant guilty and assessed punishment as described.

We first address appellant’s challenges to the formation of the jury. By his ninth and

tenth issues, appellant assigns error to the trial court’s failure to require venire members

to complete juror questionnaires now mandated by statute. He argues that failure deprived

him of the right to effective assistance of counsel. Section 62.0132 of the Government

Code provides a written jury summons must include a copy of a standard juror

questionnaire requiring the information listed in the statute. Tex. Gov’t Code Ann. §

62.0132 (Vernon 2005). It also requires those summoned to submit the completed

questionnaire when reporting for jury service. Id. Information contained on a completed

questionnaire is confidential but “may be” disclosed to a judge hearing the case, other court

personnel, and a litigant and the litigant’s attorney. Tex. Gov’t Code Ann. § 62.0132 (f),

(g) (Vernon 2005). Prior to voir dire, defense counsel objected to the court’s failure to

provide any information on panel members other than their names. The defense argued

it was unable to properly decide whether to move to shuffle the jury without the information.

The trial court overruled the objection, noting simply “we don’t fill out jury information

cards.” Appellant now argues the absence of the information prejudiced the defense

because the prosecutor had practiced law in the county for a long period of time and,

based on his reference to some venire members by their first names, apparently knew

them personally.

The State offers two arguments in response. First, it contends use of the word

“may” in the statute’s list of permitted recipients of questionnaire responses shows the

3
disclosure is within the discretion of the trial court and it did not abuse that discretion.

Second, the State argues no harm was shown. The record does not support the State’s

view that the trial court exercised discretion not to disclose completed questionnaires. The

trial judge’s statement that “we don’t fill out jury information cards” indicates a failure to

comply with the mandatory provisions of section 62.0132 and that failure was error. The

error involved a statutory, rather than constitutional, right and is subject to harmless error

review under Rule of Appellate Procedure 44.2(b). We find the record shows the error did

not affect a substantial right and must be disregarded.

In two cases decided before section 62.0132 made standard juror questionnaires

mandatory the Court of Criminal Appeals found no right to review the information before

requesting a jury shuffle. In Davis v. State, 782 S.W.2d 211 (Tex.Crim.App. 1989), the

court held it was not error to require a party to decide to request a jury shuffle before

reviewing questionnaires. Id. at 214. It found the legislature did not intend article 35.11

of the Code of Criminal Procedure to require anything more than allowing a defendant to

view the venire members before requesting a shuffle. Id. at 214 (citing Alexander v. State,

523 S.W.2d 720, 721 (Tex.Crim.App. 1975)). In Garza v. State, 7 S.W.3d 164 (Tex.Crim.

App. 1999), the court reiterated the holding in Davis and went on to hold that permitting

review of juror questionnaires before requesting a shuffle was not prohibited by article

35.11 either. Id. at 166. Nothing in section 62.0132 alters these holdings. The purpose

of juror questionnaires is to save time by providing basic information which would otherwise

be obtained by oral questions. See Barajas v. State, 93 S.W.3d 36, 45 (Tex.Crim.App.

2002) (Womack, J., concurring) (questionnaire allows parties to obtain some information

4
“without asking questions.”); Cuellar v. State, 943 S.W.2d 487, 495 (Tex.App.--Corpus

Christi 1996, pet. ref’d) (Yanez, J., concurring). The Court of Criminal Appeals has also

held the use of juror questionnaires does not relieve counsel of the duty to elicit pertinent

information during voir dire. Gonzales v. State, 3 S.W.3d 915, 917 (Tex.Crim.App. 1999).

The record shows defense counsel was not denied the opportunity to inquire of the venire

on any matter that would have been included in a written questionnaire or limited in the

amount of time to conduct voir dire. The trial court’s failure to use juror questionnaires did

not deprive appellant of the effective assistance of counsel. We overrule appellant’s ninth

and tenth issues.

Appellant’s eighth issue also arises from jury selection. In it he assigns error to the

denial of two challenges for cause and refusal to grant an additional peremptory challenge.

The trial court has discretion in ruling on challenges for cause, and its rulings will not be

upset on appeal absent an abuse of that discretion. Ladd v. State, 3 S.W.3d 547, 559

(Tex.Crim.App. 1999). An appellate court must examine the record as a whole to

determine whether there is support for the trial court's rulings, and, in doing so, the

appellate court must give deference to the trial court judge, who was in a position to

actually see and hear the venire member. Id. The grounds on which challenges for cause

may be predicated are set out in article 35.16 of the Code of Criminal Procedure. Tex.

Code Crim. Proc. Ann. art. 35.16 (Vernon 2006). As relevant here, article 35.16(a)(9)

permits a challenge to a venire member for cause if she cannot impartially judge the

credibility of witnesses. Ladd, 3 S.W.3d at 560. Appellant properly preserved his

complaint of error from the denial of his challenges for cause. See Sells v. State, 121

5
S.W.3d 748, 758 (Tex.Crim.App. 2003), cert. denied, 540 U.S. 986, 124 S.Ct. 511, 157

L.Ed.2d 378 (2003) (setting out procedure for preservation of error).

Appellant first complains of the failure to grant his challenge for cause to venire

member Brenda Riggs. Riggs worked in the same building as the police chief who arrested

appellant and agreed she would “probably” tend to believe the testimony of police officers.

On further examination by the State, Riggs unequivocally answered she could follow an

oath to render a verdict based on the evidence presented “regardless of whether you know

the people testifying.”

Riggs’ answers indicating she would tend to believe police, but would consider all

the evidence presented are indistinguishable from those given in Ladd, where the court

held a venire member who would “tend to believe” police slightly more than others was not

subject to a challenge for cause. 3 S.W.3d at 560 (citing Smith v. State, 907 S.W.2d 522,

531 (Tex.Crim.App. 1995)). See also Gardner v. State, 730 S.W.2d 675, 692-93

(Tex.Crim.App. 1987); Turner v. State, 671 S.W.2d 679, 681 (Tex.App.–Dallas 1984, pet.

ref’d) (venire member’s acquaintance with witness through church and belief he was

credible did not establish challenge for cause). The trial court did not err in overruling

appellant’s challenge for cause to venire member Riggs.

Appellant’s second challenge for cause was to venire member Schatte who initially

stated she did not think she could consider probation. After the same question was put to

other venire members, Schatte changed her view and answered that she could give

probation if justified by the evidence. A trial court's decision to dismiss a member of the

6
venire for cause is entitled to "considerable deference." King, 29 S.W.3d 556, 568

(Tex.Crim.App. 2000). That deference is particularly important when the venire member's

responses are vacillating, unclear or contradictory. Id.; see Howard, 941 S.W.2d 102, 107-

08 (Tex.Crim.App. 1996) (also discussing the "vacillating veniremember"). A reviewing

court considers whether the totality of the voir dire testimony supports the trial court's

finding on whether the prospective juror is able to follow the law as instructed, and reverses

only if a clear abuse of discretion is evident. Id. We see no abuse of the trial court’s

discretion in its apparent acceptance of Schatte’s response that she could consider

probation in an appropriate set of facts. We overrule appellant’s eighth issue.

By his first and third issues, appellant challenges the legal and factual sufficiency

of the evidence supporting a finding the containers used were not designed or

manufactured to lawfully hold or transport anhydrous ammonia. His second and fourth

issues challenge the legal and factual sufficiency of the evidence he transported anhydrous

ammonia with intent to manufacture a controlled substance.

Section 481.124(b)(1) creates a permissive 3 presumption of intent to manufacture

methamphetamine on evidence the actor transported anhydrous ammonia in a container

not made for that purpose. A legal presumption permits the fact finder to infer the

presumed fact from proof of the predicate fact. Willis, 790 S.W.2d at 310. It relieves the

State of separately establishing the presumed fact or element. Id.; Tex. Pen. Code Ann.

§ 2.05(a)(2)(B) (Vernon Supp. 2006). Here the intent to manufacture methamphetamine

3
Mandatory presumptions violate the federal constitution. Willis v. State, 790
S.W.2d 307, 309 (Tex.Crim.App.1990).

7
may be inferred from the use of unlawful containers. For this reason appellant’s challenge

to the legal sufficiency of evidence of his intent to manufacture methamphetamine must

necessarily be subsumed within his challenge to the legal sufficiency of the evidence

supporting the predicate fact, the transportation of anhydrous ammonia in containers not

designed or manufactured for lawful use for that purpose.

Appellant’s brief correctly states the standards by which we must review challenges

to the legal sufficiency of the evidence and recitation of those standards here is

unnecessary. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979). After the parties filed their briefs in this case the Court of Criminal Appeals offered

further guidance to appellate courts concerning reviews of the factual sufficiency of

evidence. See Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006). Before reversing

based on factual insufficiency an appellate court must first be able to say, with some

objective basis in the record, that the great weight and preponderance of the evidence

contradicts the jury's verdict. Watson, at 417. When conducting a sufficiency review, we

consider all the evidence admitted, whether proper or improper. Conner v. State, 67

S.W.3d 192, 197 (Tex.Crim.App. 2001).

The evidence offered to prove the containers found in the bed of the truck in which

appellant was riding were not designed or manufactured to transport anhydrous ammonia

included the testimony of Chief Ed Urban, Department of Public Safety crime lab chemist

William L. Todsen and volunteer firefighter Frank Walden, who participated in disposing

of the tanks’ contents.

8
 Urban testified he had received training through several seminars and schools on

dealing with “clandestine labs,” and how to deal with them safely. Officers were instructed

that ammonia will “eat” brass valves causing them to fail. He learned to look for blue

discoloration on valves as a sign of corrosion from anhydrous ammonia. He was

personally involved in a case in which the valve on a similar tank had failed, causing injury

to an officer.

During voir dire of Todsen, he testified that, in addition to having two college

degrees in chemistry, he had received training from the “DEA” on anhydrous ammonia.

He received instruction on containers used for storing and transporting anhydrous

ammonia, specifically that containers must use stainless steel valves because those made

of brass, copper or bronze will corrode, leading to leaks of the toxic chemical. The

corrosion would often result in a blue discoloration. He also made reference to the need

for approval of anhydrous ammonia containers by the Department of Transportation.

Based on this training and examination of the tanks, Todsen testified they were not

approved to hold anhydrous ammonia.

As a volunteer firefighter Walden had received training on hazardous materials,

including anhydrous ammonia and the containers used for storing and transporting it.

Walden testified the primary focus of the training concerned the valves used on anhydrous

ammonia tanks. He was taught they must be made of stainless steel because “the

anhydrous ammonia deteriorates the copper valve.” He concluded the tanks at issue were

not designed or manufactured to contain anhydrous ammonia.

9
 Appellant argues the State’s failure to present testimony from an engineer or an

expert from the fertilizer industry rendered the evidence on the adequacy of the containers

to hold anhydrous ammonia legally insufficient. He cites Pollock v. State, 145 S.W.3d 786

(Tex.App.–Eastland 2004, pet. ref’d), in support. In Pollock, the court considered a statute

with virtually identical language. Id. at 787. The evidence showed the defendant

possessed anhydrous ammonia in tanks stamped “LP GAS” and included an officer’s

testimony that the tank “was not sufficiently engineered to hold anhydrous ammonia

because the tank was stamped ‘LP GAS.’” The court of appeals reversed, finding there

was no evidence that a tank stamped “LP GAS” is not or cannot be designed and

manufactured to hold anhydrous ammonia. It cited applicable federal regulations which

were not introduced at trial, concluding the prosecution failed to meet its burden to show

the containers did not meet those regulations. The court commented the State could meet

its burden by presenting evidence from witnesses qualified to testify about the applicable

regulations, including experts in the fertilizer industry and engineers. Id. at 789. The

opinion went on to distinguish the facts and holding of Wootton v. State, 132 S.W.3d 80

(Tex.App.–Houston [14th Dist.] 2004, pet. ref’d), where prosecution was based on the same

statute we consider here. In Wootton, an officer testified anhydrous ammonia containers

are “typically” stamped “anhydrous ammonia only,” as required by the Department of

Transportation,4 and they would not have brass in contact with anhydrous ammonia. 132

S.W.3d at 89. The officer also testified the blue discoloration of the brass valves indicated

4
There is no indication the officer cited a specific regulation.

10
the presence of anhydrous ammonia. The testimony of the officers in Wootton was

adequate because it showed the container did not meet an applicable requirement.

The evidence here rises to the level of that presented in Wootten. Three different

witnesses testified they had received training on the characteristics of containers which

may be used to hold anhydrous ammonia under applicable regulations. They consistently

testified to the requirement that stainless steel valves be used, and testified the valves

appearing on the tanks at issue were not stainless steel.

Appellant’s argument that the evidence was insufficient because of the possibility

that a placard could have been removed from the tanks5 is irrelevant. The regulatory

nonconformity on which the testimony of each witness focused was the absence of

stainless steel valves. It is similarly unavailing to point to a conflict between descriptions

of the valves used as brass or copper, and to the absence of expert testimony from a

metallurgist. The fact finder did not need to determine whether the valves were made of

brass or copper. The witnesses each explained the discoloration was the result of

corrosion resulting from the material not being stainless steel. Moreover, the tanks were

in evidence, and the jury was able to observe their markings and valves. The evidence was

sufficient to permit a rational fact finder to find beyond a reasonable doubt the containers

were not designed or manufactured to lawfully hold or transport anhydrous ammonia. We

overrule appellant’s first issue. By virtue of the presumption created by section 481.124(b)

5
There was evidence that approved anhydrous ammonia containers will bear an
identifying sticker or placard, which none of the tanks in evidence bore, but the placards
could have been removed.

11
of the Health and Safety Code, the evidence was legally sufficient to support the inference

of appellant’s intent to manufacture methamphetamine. We overrule appellant’s second

issue.

Appellant’s third and fourth issues challenge the factual sufficiency of evidence

supporting the same elements of the offense as his first two issues. Reversal for factual

insufficiency requires us to determine whether the great weight and preponderance of the

evidence contradicts the jury’s verdict. Watson, at 417. The gist of appellant’s argument

is that his written statement to police controverts the presumption that his possession or

transportation of anhydrous ammonia was with the intent to manufacture

methamphetamine. In that statement appellant represented it was his intent to sell the

anhydrous ammonia and split the proceeds. Urban agreed it was “entirely possible

[appellant’s] only intent was to make a few dollars off helping get this stuff[.]”6

The statement on which appellant now seeks to rely was both unsworn and made

without the maker being subject to cross-examination. It is well established the fact finder

is the exclusive judge of the credibility of the witnesses and the weight to be given their

testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). As such, the

fact finder may choose to believe or disbelieve all or any part of any witness's testimony.

Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). Appellant’s statement did not

rise to the level of testimony and the jury was not compelled to believe any specific part of

6
The jury charge did not include an instruction on the law of parties.

12
the statement. The jury’s verdict did not contradict the great weight and preponderance

of the evidence and we overrule appellant’s third and fourth issues.

Appellant’s fifth, sixth and seventh issues assign error to the admission of testimony

from Urban, Todsen and Walden. His specific complaints are that the trial court failed to

fulfill its “gatekeeper” function with regard to the admission of expert testimony (issue five);

admission of testimony on the lawfulness of the containers used was improper because

the reliability of the testimony was not established (issue six); and the trial court erred in

refusing to hold “[Rule] 702, 703 and 705 hearings outside the presence of the jury” (issue

seven).

Rule of Evidence 702 allows a witness qualified as an expert by “knowledge, skill,

experience, training, or education” to testify in the form of an opinion. In criminal cases

Rule 705(b) entitles a party to request and conduct voir dire “directed to the underlying

facts or data upon which the opinion is based” outside the presence of the jury. If the trial

judge determines the underlying facts or data do not provide a sufficient basis for the

expert’s opinion, the opinion is inadmissible. Tex. R. Evid. 705(c). A proponent’s

obligation to establish reliability is not limited to scientific evidence. Jackson v. State, 17

S.W.3d 664, 670 (Tex.Crim.App. 2000) (citing Kumho Tire Co., v. Carmichael, 526 U.S.

137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). The considerations used to assess

the reliability of expert testimony will vary with the nature of the testimony. Ter-Vartanyan

v. R & R Freight, Inc., 111 S.W.3d 779, 782 (Tex.App.–Dallas 2003, pet. denied). The

record shows the trial court did conduct hearings outside the presence of the jury before

13
allowing each witness to testify concerning the requirements for anhydrous ammonia

containers and whether the containers seized from appellant met those requirements. We

overrule appellant’s seventh issue.

Appellant cites Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992), and

Sexton v. State, 93 S.W.3d 96, 100 (Tex.Crim.App. 2002), as establishing what a

proponent of “scientific evidence” must show to establish reliability. But the testimony at

issue was not scientific in nature. It was, at most, technical. The disputed fact was

whether the containers were designed and manufactured to lawfully be used to transport

anhydrous ammonia. Establishing that fact did not require proof of the scientific or

engineering basis underlying the applicable regulations. 7

Each of the three witnesses testified to his training concerning the regulatory

requirement that anhydrous ammonia containers be fitted with stainless steel valves. That

testimony was subject to cross-examination by the defense to expose any inaccuracies.

Each of the three acknowledged his ignorance of other regulatory requirements for such

containers,8 but such admitted lack of knowledge did not make them incompetent to testify

to a requirement of which they were aware and the containers in evidence did not meet.

7
The DPS chemist Todsen did explain the corrosion of brass, copper and bronze
resulted from ammonia being a “base.” Although that portion of his testimony was not
necessary to any element the State was required to establish, Todsen’s expertise on that
subject was shown by evidence he had two college degrees in chemistry and several years
experience in the field of chemistry.
8
Federal and state agency regulations may be judicially noticed. Tex. R. Evid. 202,
204; Southwestern Bell Tel. Co. v. Nash, 586 S.W.2d 647, 648 (Tex.Civ.App.--Austin 1979,
no writ).

14
 On appeal, appellant points out that one of the three witnesses identified the valve

on at least one of the tanks as brass and another referred to the valves as being made of

copper.9 Again, however, the witnesses consistently testified that the tanks in evidence

were not fitted with stainless steel valves. Appellant’s objections at trial to the witnesses’

testimony did not include an objection to their qualifications to distinguish between

stainless steel valves and those made of substances such as brass. We may not review

an appellate objection to testimony that does not comport with the objection made at trial.

Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App. 1996). Moreover, appellant did not

object when the witnesses described the construction material of the valves. When the

challenged evidence is admitted elsewhere in a trial without objection, no complaint over

admission of the evidence is preserved for review. Lane v. State, 151 S.W.3d 188, 192-93

(Tex.Crim.App. 2004).

The trial court did not abuse its discretion by overruling appellant’s objections

pursuant to Rule 702. We overrule appellant’s fifth and sixth issues.

Finding no support for appellant’s issues, we affirm the judgment of the trial court.

James T. Campbell
Justice

Publish.

9
The evidence also showed one tank had a valve made of plastic.

15