Black v. State

739 S.W.2d 638

Opinions

ON REMAND FROM THE COURT OF CRIMINAL APPEALS

HECHT, Justice.

A jury convicted Morgan Earnest Black, Jr. of aggravated possession with intent to deliver a controlled substance — viz, over $1 million worth of phencyclidine — and assessed punishment at 12 years’ imprisonment. A panel of this court reversed Black’s conviction because the district court failed to apply the law of parties to the facts of the case in the jury charge. Black v. State, No. 05-83-00366-CR (Tex.App.—Dallas Dec. 12, 1984) (unpublished). The court of criminal appeals granted the State’s petition for discretionary review, vacated the judgment of this court, and remanded the case for us to “consider whether the charging error was harmless.” Black v. State, 723 S.W.2d 674, 676 (Tex.Crim.App.1986). We conclude that it was, and accordingly, affirm the judgment of the district court.

Scope of Remand

Ambiguity in the court of criminal appeals’ instructions to us necessitates that we first determine the scope of our responsibility on remand.

What is clear is that we must analyze whether the trial court’s erroneous failure to charge the jury on the application of the abstract law of parties to the facts of the case actually harmed Black. The panel of this court which first heard Black’s appeal did not perform this analysis, apparently believing that the error automatically required reversal whether harmless or not.³ After the panel decision issued and while the State’s petition for discretionary review was pending before the court of criminal appeals, that court ruled in other cases that only charging error which actually harms the defendant requires reversal. The court then held that this case must be re-examined in light of those rulings, stating:

Therefore, although the Court of Appeals’ holding that the trial court erroneously failed to apply the law of parties to the facts of the case is correct, the Court of Appeals must consider whether the charging error was harmless.

Black, 723 S.W.2d at 676.

What is not clear is whether we are to consider the entire record or only the evidence in assessing whether the charging error was harmless. The court of criminal appeals considered the identical error in Govan v. State, 682 S.W.2d 567, 570-571 (Tex.Crim.App.1985), and held that:

because the evidence in the instant case clearly supports the appellant’s guilt as a principal actor, the error of the trial court in charging on the law of parties was harmless error.

Citing Govan, the court held in Brown v. State, 716 S.W.2d 939, 945-946 (Tex.Crim.App.1986):

any error in charging on the law of parties is harmless if the evidence clearly supports appellant’s guilt as a primary actor.

The court remanded the instant case to us “for consideration in light of Govan, supra, and Brown, supra.” Black, 723 S.W.2d at 676. This would seem to indicate that we are to limit our review to the evidence in the case.

Beclouding the matter is the court of criminal appeals’ restatement of the harmless error rule in this case:

Where the evidence clearly supports a defendant’s guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless. Brown, supra; Govan, supra. Cf. Art. 36.19, V.A. C.C.P. (1981); Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (standard for reviewing charging error for harm).

Black, 723 S.W.2d at 675. In a footnote the court explains the standard established in Almanza, which was decided after Go-van and before Brown, but was not cited in Brown:

In Almanza supra, this Court recognized that Article 36.19, V.A.A.C.P. (1981), requires this Court to reverse convictions for charging error only if actual harm to a defendant occurred.... The presence or absence of actual harm is determined through an examination of the entire record. Thus, this Court abandoned the former rule of automatic reversal in favor of a practical standard requiring the demonstration of actual harm.

... In Almanza, supra, this Court made it clear that charging error must be reviewed in the context of the entire record....

Using Almanza, supra, in its proper context, Govan, supra, only requires reversal of preserved charging error on the law of parties if the law of parties was actually necessary for the jury to decide the case. If the evidence was sufficient to support a conviction of a defendant as a principal, then a jury would rationally convict the defendant as a principal rather than as a party.

Black, 723 S.W.2d at 676-676 n. 2. From this explanation it is difficult to tell whether any harm from a charging error on the law of parties must be determined from the entire record or only from the evidence.

This distinction determines the issue to be addressed. If harm is to be determined from the evidence only, then the issue is whether the evidence is sufficient to find guilt as a principal rather than as a party, as stated in Govan. Thus, the Govan test for harm from a charging error on the law of parties is simply sufficiency of the evidence. On the other hand, if harm is to be determined from the entire record, the issue is not simply sufficiency of the evidence but whether “the defendant has not had a fair and impartial trial”, as stated in Almanza and article 36.19, Texas Code of Criminal Procedure. The Almanza test is broader than Govan and requires an analysis of not only the evidence but the entire record.

We see no reason to apply a different standard in assessing harm from a charging error on the law of parties than applies to charging errors generally. Relevant in assessing the harm of a charging error is not only the evidence but the emphasis and interpretation of the evidence under the charge in closing argument, as well as the entire record. We therefore conclude that our instruction to analyze whether the error in this case is harmless includes the responsibility to consider the entire record.

The Evidence

Acting on information available to him, Roy Wunderlich, a Los Angeles police officer assigned to investigate clandestine narcotics laboratories used to manufacture illicit drugs, began surveillance on the Los Angeles home of Frederick Gene Cooper.⁴ Cooper drove a motor home registered in his name to a repair shop, apparently to prepare the vehicle for a trip. From there Cooper drove the motor home to the Los Angeles home of Willie Sanford, also known as “Black Willie”, where he met Black and John Henry McCovery. Black and McCovery loaded luggage into the motor home while Cooper loaded two five-gallon black cans which appeared to be heavy and full. Cooper, Black and McCovery next drove to Sanford’s car wash, where Cooper picked up three white plastic five-gallon buckets and put them in the motor home. The three then began to circle around the area, stopping in the middle of streets and on corners for three to five minutes at a time, making U-turns, and watching traffic. Wunderlich concluded that the trio was attempting to ensure that they were not being followed. After 45 minutes the motor home drove onto the freeway and headed east out of Los Ange-les.

From his five years’ experience investigating 150 illicit drug laboratories, Wun-derlich knew that the manufacture of phen-cyclidine⁵ required, among other things, large amounts of ether, commonly packaged in black five-gallon cans, a scale to measure the chemical ingredients, and buckets in which to mix the chemicals. The manufacture of phencyclidine is a very odorous process and therefore conducted in isolated areas to avoid detection. At the time, Los Angeles police were cracking down on phencyclidine manufacturers and distributors. Knowing all this, and from the information he had received and what he had seen following the motor home around Los Angeles, Wunderlich was con vinced that Cooper, Black and McCovery intended to travel to Dallas, manufacture a large quantity of phencyclidine, and return to Los Angeles to sell it.

For 36 hours straight, Wunderlich, sometimes assisted by other police vehicles and aircraft, dogged the trio in the motor home across California, Arizona, New Mexico and Texas, stopping only briefly for gas and food, until they arrived at Cooper’s brother’s home in Dallas. About an hour after the motor home stopped at the house, it left to pick up a black male at an airline terminal at the Dallas/Fort Worth Airport, and then returned to the house.

Joined by Dallas police officers, Wunder-lich set up constant surveillance of the house and motor home.⁶ The house was located on a cul-de-sac, and behind the house was a large, open field. The night following the arrival of the motor home, Wunderlich walked across the field to the house. As far as a mile from the house he could smell the odor of phencyclidine being manufactured. Wunderlich testified:

[T]o describe it, would be a sweet, pungent odor. And it’s like anything else, when somebody’s making chocolate chip cookies, you know that they’re making chocolate chip cookies. When someone’s making PCP, I know they’re making PCP.

And I’ve never smelled anything else that smells like PCP when it’s being manufactured. Quaalude has its own odor, cocaine has its own odor, methamphetamine has its own odor. PCP smells exactly like PCP being manufactured.

For two hours he walked around behind the house, at times within fifty feet of it, until he was certain the odor was emanating from there.

Shortly before dawn, three men, including Black, left in a van to take the man that had been picked up at the airport the day before back to the airport. The three then drove to another residence, to where the motor home had been moved the day before, boosted it to start it, and returned to Cooper’s brother’s home about 8:10 a.m.

Three hours later the motor home left the residence and headed south on the expressway. Within ten minutes police stopped the vehicle on orders from the surveillance teams. As officers approached the motor home they smelled a strong odor, which was even stronger inside. Cooper was driving. Black was riding in the front passenger seat. McCovery was in the back of the motor home asleep. All three were arrested. A search of the vehicle revealed a professional set of scales, a sawed-off shotgun, the same luggage Wunderlich had seen Black and McCovery put in the vehicle in Los Angeles, and two trash bags, each containing one of the five-gallon black cans Wunderlich had seen loaded into the van at Sanford’s home in Los Angeles. The two cans contained 1,519 grams of pure phency-clidine.

Drug abusers ingest phencyclidine by smoking cigarettes which have been dipped in it, each carrying an average dose of 40 milligrams. The total amount of phencycli-dine found in the motor home could dope 37,900 cigarettes for sale on the street at $30 apiece. Thus, the street value of the phencyclidine found in the motor home was $1,137,000.

The Record

During the voir dire examination of the venire the prosecutor stated for the prospective jurors the elements it would be required to prove each defendant guilty as a principal actor rather than as a party. He then gave a rather routine summary of the law of parties using a bank robbery as an illustration, and asked if anyone disagreed with that law. However, the focus of the prosecutor’s remarks was on the defendants’ actions as co-principals, not as parties.

Likewise in his closing argument the prosecutor emphasized each defendant’s conduct as a principal. Although the prosecutor again referred to the law of parties and stated that the State need prove no more than that Black and McCovery were parties to Cooper’s conduct, the emphasis of the argument, particularly as it referred to the evidence, was on the actions of each defendant warranting conviction as a principal.⁷

Charging Error Harmless

The court of criminal appeals has only very recently restated the principles for proving possession of a controlled substance as a principal. Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App.1987). The State must prove beyond a reasonable doubt that a defendant intentionally or knowingly exercised actual care, control, custody or management over the contraband, knowing that it was contraband. Showing a defendant to have been in the vicinity of contraband is not enough. The State must prove an affirmative link between the defendant and the contraband showing both control and knowledge.

As in any case, proof may be based upon circumstantial evidence which excludes every reasonable hypothesis other than guilt. Humason, 728 S.W.2d at 366.

The rules of circumstantial evidence do not require that circumstances should to a moral certainty actually exclude every hypothesis that the act may have been committed by another person, but that the hypothesis is a reasonable one consistent with the facts proved and the circumstances, and the supposition that the act may have been committed by another person must not be out of harmony with the evidence.

Moore v. State, 640 S.W.2d 300, 302 (Tex.Crim.App.1982).

The evidence was sufficient to convict Black as a principal. He made a 36-hour nonstop trip from Los Angeles to Dallas in a motor home conspicuously loaded with some of the unusual ingredients to manufacture phencyclidine. In Dallas he stayed at least part of the time at a home where the unique and pungent odor of phencyclidine being manufactured could be smelled a mile away. He was arrested in the motor home with more than a million dollars’ worth of the illegal drug that smelled so strong the police noticed it as they approached the vehicle.

Although much of the evidence is circumstantial, we conclude that it excludes every reasonable hypothesis for Black’s behavior alternative to guilt. It is not reasonable, contrary to Black’s suggestion, to conclude from the evidence that he was only along for the ride. One hardly expects to find a hitchhiker in a motor home with a million dollars’ worth of redolent contraband. This case is very different from Humason, in which the defendant was arrested driving a vehicle containing a duffle bag with an almost invisible amount of cocaine inside. Had there been so minute a quantity of controlled substance in the motor home, it might not be unreasonable to suppose that by merely sitting in the passenger seat Black did not exercise care, custody, management or control over the substance. But when the quantity and value of the controlled substance in the vehicle are as enormous as they are here, and the presence of the substance made so obvious by its overpowering smell, such supposition becomes most unreasonable. It is made more unreasonable still by the length of the trip and the fact that Black stayed with his traveling companions and the contraband while in Dallas. The evidence allows but one reasonable conclusion: Black knew what was going on and actively participated in its as a principal.

The evidence as to Cooper, Black and McCovery, individually, was not so different that the jury was likely to convict one or more of them as parties only. All that McCovery did, Cooper and Black joined in. The additional evidence as to Black was that he was seen riding in the front passenger seat of the motor home on two occasions, and was one of the three men on the second trip to the airport in Dallas. The additional evidence as to Cooper was that he loaded the black cans into the motor home in Los Angeles, he was seen driving the motor home which he owned, and his brother owned the house in Dallas where the phencyclidine was manufactured.

Neither the argument nor any other part of the trial so emphasized party culpability as to raise the likelihood that the jury convicted Black as a party rather than as a principal. Although the prosecutor did mention the law of parties, in argument and voir dire, the focus of the trial was on individual responsibility.

We therefore conclude from the record as a whole that Black received a fair and impartial trial, and that the evidence was sufficient to convict him as a principal. The trial court’s error in failing to apply the law of parties to the evidence in his instructions to the jury was therefore harmless. The judgment of the trial court is, accordingly, affirmed.

McCRAW, J., dissents.

Footnotes

3

. Presiding Judge Onion of the court of criminal appeals stated in his dissenting opinion that the court of appeals “held the error was harmful because of the penalty assessed, and said so on the very face of its brief opinion.” Black, 723 S.W.2d at 681. The prior unpublished panel opinion of this court reads in full:

This is an appeal from a conviction for possession with intent to deliver a controlled substance. For the reason below, we reverse and remand.

In his dispositive ground of error, appellant contends that the trial court erred in failing to apply the law of parties to the facts. While the court’s charge did contain the abstract definition of the law of parties, it did not instruct the jury as to the application of the law, e.g., that if appellant intended to promote or assist the commission of an offense, or encouraged another, he would be criminally responsible. Under the authority of McCuin v. State, 505 S.W.2d 827 (Tex.Crim.App.1974), we sustain this ground and reverse and remand for new trial.

We do not read this opinion to hold that the charging error was harmful either because of the penalty assessed or for any other reason.

4

. Cooper, along with John Henry McCovery, were tried as co-defendants with Black.

5

. Phencyclidine is a controlled substance, referred to in the vernacular of drug users as "PCP" or “angeldust".

6

. At times police kept out of sight of the house and motor home so as not to be spotted. Although they were not always able to see people entering and leaving the vehicle and house, they were able to monitor the motor home and other vehicles coming and going.

7

. Judge Teague of the court of criminal appeals stated in his dissenting opinion:

With specific regard to the jury argument, it is true that vicarious culpability was not strenuously urged by the State as a distinct theory upon which the jury might predicate a finding of guilt. In spite of my belief that the probable impact of argument by counsel on jury deliberations cannot fairly be gauged without rank speculation, I will concede that juries as a whole are probably somewhat less likely to convict upon a theory not urged by either party than upon a theory strenuously urged. However, without speculating, I am unable to say how much less likely, if at all, it was in this case. Accordingly, I am inclined to afford the circumstance of jury argument little weight in my harm analysis. Black, 723 S.W.2d at 684.