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 
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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)