Chancellor Fragoso v. the State of Texas

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

CHANCELLOR FRAGOSO, § No. 08-22-00182-CR

Appellant, § Appeal from the

v. § Criminal District Court No. 1

THE STATE OF TEXAS, § of El Paso County, Texas

Appellee. § (TC# 20160D01962)

MEMORANDUM OPINION

A jury found Appellant Chancellor Fragoso guilty of two counts of manufacture or delivery

of a controlled substance in penalty group one in an amount less than one gram, and one count of

manufacture or delivery of a controlled substance in penalty group one in an amount greater than

one gram but less than four grams. Appellant challenges his convictions in three issues, arguing:

(1) the trial court erred by denying Appellant’s motion for directed verdict; (2) the trial court erred

when it allowed the jury to consider a lesser-included offense that was unsupported by the evidence

presented at trial; and (3) Appellant’s right to a speedy trial was violated by the approximately

eight-year delay between his indictment and trial. For the following reasons, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

Detective Gerd Ramm of the El Paso Police Department (EPPD) was a narcotics section

undercover officer in 2014. On January 18, 2014, Ramm received a tip that a person named

“Brian” was selling narcotics using a certain phone number. Ramm called the phone number and

spoke to an individual he thought was Brian. Ramm agreed to meet Brian at a local fast-food

restaurant to buy $50 worth of narcotics from Brian. Ramm went to the restaurant and observed a

small sedan pull up near the restaurant. Ramm got inside the sedan, handed the man $50 of EPPD’s

designated funds for undercover narcotics purchases, and received three folded pieces of paper

containing a white powdery substance Ramm suspected to be cocaine. After the exchange, the man

asked Ramm who “Brian” was, and he told Ramm to call him “CJ.” The man and Ramm went

their separate ways. Ramm reported the transaction to his supervisor and submitted the folded

pieces of paper with the substances into police custody. At trial, Ramm identified Appellant as the

person from whom he purchased narcotics on January 18, 2014.

On January 29, 2014, Ramm contacted Appellant and arranged to purchase more narcotics

at a different restaurant. Ramm met with Appellant in Ramm’s truck and gave Appellant $40 in

EPPD funds. In exchange, Appellant gave Ramm two pieces of folded paper that contained a white

powdery substance Ramm believed to be cocaine. After Appellant left Ramm’s truck, Ramm drove

away, notified his supervisor that the transaction was completed, and submitted the pieces of

folded paper with the substances into police custody. Ramm identified Appellant as the person

from whom he purchased narcotics on January 29, 2014.

After having trouble contacting Appellant, Ramm reached Appellant on March 13, 2014,

and again arranged to purchase narcotics. Appellant asked Ramm to meet him at an intersection

2 near a residential neighborhood. Michael Lane, an undercover EPPD narcotics detective, was

working with Ramm and surveilling the transaction from another vehicle. Ramm again gave

Appellant $40 in EPPD funds, and Appellant gave Ramm two folded pieces of paper with a white

powdery substance Ramm believed to be cocaine. Ramm subsequently entered the folded pieces

of paper with the substances into police custody.

Immediately after the purchase was completed, Lane, who was in discreet contact with

Ramm via telephone during the buy, observed a person matching the description of the person

from whom Ramm bought narcotics go into the gate outside a residence located on Tularosa

Avenue. Ramm researched the address on Tularosa Avenue and learned that it was associated with

“Chancellor Joziah Fragoso.” Ramm wrote a complaint affidavit to acquire an arrest warrant for

Appellant. Ramm identified Appellant as the person from whom he purchased narcotics the third

time as well.

Kaitlin Williams, a forensic chemist, tested the substances and the results were positive for

cocaine. Williams testified to the following weight the cocaine (including adulterants and dilutants

but not packaging) from the separate purchases: (1) 1.06 grams from the January 18, 2014

transaction; (2) 0.73 grams from the January 29, 2014 transaction; and (3) 0.67 grams from the

March 13, 2014 transaction.

B. Procedural history

The State of Texas charged Appellant with three counts of manufacture or delivery of a

controlled substance in penalty group one in an amount greater than one gram but less than four

grams, with Count I alleging a January 29, 2014 offense date; Count II alleging a March 13, 2014

offense date; and Count III alleging a January 18, 2014 offense date.

3 Following the State’s case-in-chief, Appellant moved for a directed verdict on Counts I

and II, asking the trial court to instruct the jury to find Appellant not guilty of those counts because

the evidence showed that Appellant only sold Ramm 0.73 grams of cocaine and 0.67 grams of

cocaine, respectively, on the alleged dates. Appellant also argued that the State should have

amended those two counts in the indictment to allege offenses for manufacture or delivery of a

controlled substance in penalty group one in an amount less than one gram. The State requested

that the trial court issue jury instructions on the lesser-included offense of manufacture or delivery

of a controlled substance in penalty group one in an amount less than one gram. Relying on Grey

v. State, 1 the trial court denied Appellant’s directed-verdict motion and added a paragraph to the

jury charge that instructed the jury on Counts I and II regarding the lesser-included offense of

manufacture or delivery of a controlled substance in penalty group one in an amount less than one

gram.

Regarding Counts I and II, the jury found Appellant guilty of the lesser-included offense

of manufacture or delivery of a controlled substance in penalty group one in an amount less than

one gram. Regarding Count III, the jury found Appellant guilty of the charged offense of

manufacture or delivery of a controlled substance in penalty group one in an amount greater than

one gram but less than four grams. The trial court assessed punishment of fifteen months’

imprisonment for Counts I and II and five years’ imprisonment for Count III, with the sentences

running concurrently. The trial court imposed these sentences in open court on August 23, 2022.

On September 21, 2022, Appellant filed a motion for new trial pro se. On September 30,

2022, the trial court denied the motion by written order because the “court no longer ha[d]

jurisdiction” to decide the motion. On December 16, 2022, Appellant, again acting pro se, filed an

1 298 S.W.3d 644 (Tex. Crim. App. 2009).

4 “Amended Motion for New Trial” in which he argued, among other things, that the eight-year

period the case had been pending violated his right to a speedy trial. No express ruling on

Appellant’s amended motion appears in the record. This appeal followed.

II. ISSUES ON APPEAL

Appellant challenges his convictions in three issues, arguing: (1) the trial court erred by

denying his motion for directed verdict on Counts I and II; (2) the trial court erred by instructing

the jury regarding the lesser-included offense that was not supported by the evidence; and (3) the

approximately eight-year delay between Appellant’s indictment for the charged offenses and the

trial violated his constitutional right to a speedy trial.

III. MOTION FOR DIRECTED VERDICT AND VARIANCE

In his first issue, Appellant argues that the trial court erred by denying his motion for

directed verdict on Counts I and II (which charged manufacture or delivery of one to four grams

of cocaine occurring on January 29, 2014, and March 13, 2014, respectively) because the evidence

showed Appellant only sold Ramm less than one gram of cocaine on those dates.

A. Standard of review and applicable law

We review a trial court’s ruling on a motion for directed verdict as a challenge to the legal

sufficiency of the evidence. Elias v. State, No. 08-15-00057-CR, 2016 WL 6473055, at *2

(Tex. App.—El Paso Nov. 2, 2016, no pet.) (not designated for publication) (citing Williams v.

State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996)). In a legal-sufficiency challenge, we focus

solely on whether the evidence, when viewed in the light most favorable to the verdict, would

permit any rational jury to find the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Brooks v. State, 323 S.W.3d 893, 912

5 (Tex. Crim. App. 2010) (establishing legal sufficiency under Jackson v. Virginia as the only

standard for review of the evidence).

Here, Appellant challenges the denial of his directed-verdict motion regarding Counts I

and II (manufacture or delivery of a controlled substance in penalty group one in an amount greater

than one gram but less than four grams). A person commits that offense “if the person knowingly

manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty

Group 1.” TEX. HEALTH & SAFETY CODE ANN. § 481.112(a). “An offense under Subsection (a) is

a felony of the second degree if the amount of the controlled substance to which the offense applies

is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four

grams.” Id. § 481.112(c). Likewise, an offense under Subsection (a) is a state jail felony if the

amount in question is less than one gram. Id. § 481.112(b). Cocaine is a Penalty Group 1 substance.

Id. § 481.102(3)(D).

B. Analysis

Appellant argues that his directed-verdict motion on Counts I and II should have been

granted because the evidence showed he sold Ramm less than one gram of cocaine during each

incident alleged in those counts. Appellant points to Williams’s testimony and the associated

laboratory reports showing Appellant only sold Ramm 0.73 grams of cocaine on January 29, 2014,

and 0.67 grams on March 13, 2014, both of which were below the amount necessary to support a

conviction for manufacture or delivery of one to four grams of a substance in penalty group one.

During the bench conference on Appellant’s motion, the parties agreed that the evidence showed

Appellant only sold Ramm less than one gram of cocaine during the incidents associated with

Counts I and II. Thus, the only question before us is whether the trial court should have granted

Appellant’s directed-verdict motion.

6 As the trial court noted, Grey v. State, 298 S.W.3d 644, 645 (Tex. Crim. App. 2009)

provides guidance on this issue. There, the Court of Criminal Appeals held that when the State

requests the submission of a lesser-included offense to the jury, submission of the lesser-included

offense does not require some evidence that would permit a jury to find the defendant guilty only

of the lesser-included offense. Id. at 650–51. In this situation, we have recognized that “[t]he State

could pursue the charged offense alone, or the State could also obtain instructions on a lesser-

included offense, or the State could abandon the charged offense altogether in favor of prosecuting

the lesser-included offense.” Brooks v. State, No. 08-15-00208-CR, 2017 WL 6350260, at *6

(Tex. App.—El Paso Dec. 13, 2017, pet. ref’d) (not designated for publication).

Here, Appellant does not dispute that the manufacture or delivery of a substance in penalty

group one in an amount less than one gram is a lesser-included offense of manufacture or delivery

of a substance in penalty group one in an amount greater than one gram but less than four grams.

Neither does he dispute that the evidence at trial was legally sufficient to have shown that

Appellant sold Ramm 0.73 grams of cocaine on January 29, 2014, and 0.67 grams of cocaine on

March 13, 2014. Because Grey allows the State to proceed on the lesser-included offense in the

absence of proof of the greater offense, and because the State requested an instruction as to the

lesser-included offense on Counts I and II, we hold that the trial court did not err by denying the

directed-verdict motion on this basis. See Grey, 298 S.W.3d at 645, 650–51.

Moreover, the jury did not find Appellant guilty of the charged offense of manufacture or

delivery of one to four grams of a substance in penalty group one, but instead found him guilty of

the lesser-included offense of manufacture or delivery of less than one gram of a substance in

penalty group one. Because Appellant moved for a directed verdict on the greater offense and was

found not guilty of that offense, he was not harmed by the trial court’s denial of his motion. For

7 these reasons, we conclude that the trial court did not err by denying Appellant’s motion for

directed verdict on this additional basis. See Villareal v. State, No. 02-19-00405-CR, 2021 WL

1323414, at *2 (Tex. App.—Fort Worth Apr. 8, 2021, pet. ref’d) (mem. op., not designated for

publication) (no showing of harm possible where the trial court denied a motion for directed verdict

on a murder charge and the jury found the defendant not guilty of that offense and only found him

guilty of the lesser-included offense of aggravated assault causing serious bodily injury).

Accordingly, we overrule Appellant’s first issue.

IV. VARIANCE BETWEEN INDICTMENT AND EVIDENCE

In his second issue, Appellant argues that because of the variance between the indictment

and the evidence at trial, the trial court erred by allowing the jury to consider the lesser-included

offense of manufacture or delivery of a controlled substance in penalty group one in an amount

less than one gram regarding Counts I and II. In particular, Appellant contends that a material

variance existed between the charged offenses of manufacture or delivery of one to four grams of

a substance in penalty group one and the proof at trial of Appellant’s commission of only the

lesser-included offenses of manufacture or delivery of less than one gram of a substance in penalty

group one, thus requiring acquittal.

A. Standard of review

In cases involving a sufficiency claim based on a variance between the indictment and the

evidence, we consider the materiality of the variance rather than review the evidence under the

traditional sufficiency standards set forth in Jackson v. Virginia. See Fuller v. State, 73 S.W.3d

250, 253 (Tex. Crim. App. 2002) (en banc). Generally, a variance between the indictment and the

evidence at trial is fatal to a conviction and requires acquittal, but acquittal on this ground does not

bar re-prosecution on a new charge alleging the offense the State proved in the first trial. Bailey v.

8 State, 87 S.W.3d 122, 126–27 (Tex. Crim. App. 2002); Stevens v. State, 891 S.W.2d 649, 650

(Tex. Crim. App. 1995) (en banc). However, a variance between the wording of an indictment and

the evidence at trial only requires acquittal if the variance is material and prejudices the defendant’s

substantial rights. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). To determine if

a variance violates the defendant’s substantial rights, we determine: (1) whether the indictment

informed the defendant of the charge against him sufficiently to allow him to prepare an adequate

defense at trial; and (2) whether prosecution under the deficiently drafted indictment would subject

the defendant to the risk of being prosecuted later for the same crime. See id.

B. Analysis

Here, the indictment Counts I and II charged Appellant with manufacture or delivery of

one to four grams of a substance in penalty group one, and the jury convicted Appellant of the

lesser-included offense of delivery of less than one gram of a substance in penalty group one. The

dates alleged in the indictment regarding Counts I and II are January 29, 2014, and March 13,

2014, respectively. As such, the indictment provided Appellant notice that he was being prosecuted

for the specific acts of selling cocaine on those specific dates. Given the uniqueness of the events

associated with the charges, nothing indicates Appellant was unaware of the charges against him

or unable to adequately prepare a defense to those charges, notwithstanding the larger amount of

cocaine alleged in the indictment. In support of Appellant’s proper notice, the record indicates that

the State filed the certificate of analysis with the laboratory results from Williams’s analyses of

the substances Appellant sold (including the weights of the substances tested) approximately three

years before trial, giving Appellant ample time to prepare a defense to the charges.

Moreover, under the principles of double jeopardy, there is no risk that Appellant would

be subject to prosecution again for the same offenses because he cannot be tried or punished twice

9 for both the greater offenses and lesser-included offenses here. See Ex parte Chaddock, 369

S.W.3d 880, 883 (Tex. Crim. App. 2012) (under the prohibition against double jeopardy, a

defendant may not be tried or punished twice for a greater-inclusive and lesser-included offense).

For these reasons, we find that the variance was immaterial and that Appellant cannot show

he is entitled to acquittal on this basis. See Ramos v. State, 407 S.W.3d 265, 271 (Tex. Crim. App.

2013) (recognizing that a variance between an indictment alleging murder and evidence at trial

proving manslaughter was immaterial because (1) the defendant was on notice regarding

manslaughter because of the unique facts of the case giving rise to the murder charge, and (2) the

manslaughter offense concerned one victim for whose death the defendant could not be prosecuted

twice under double jeopardy because manslaughter is a lesser-included offense of murder).

Accordingly, we overrule Appellant’s second issue.

V. SPEEDY-TRIAL CLAIM

In his third issue, Appellant argues that the approximately eight-year delay between his

indictment and trial violated his federal constitutional right to a speedy trial under the Sixth

Amendment. See U.S. CONST. amend. VI. Prior to discussing the merits of Appellant’s argument,

we must consider the State’s contention that he has not preserved the speedy-trial issue for our

review. See Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (“[I]t [is] incumbent upon

[an appellate court] . . . to take up error preservation as a threshold issue.”). Appellant has not

responded to the State’s error-preservation argument.

To preserve an issue for appellate review, an appellant generally has the burden to make a

timely and specific objection in the trial court and obtain a ruling on the objection. TEX. R. APP.

P. 33.1(a); see Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020) (noting that the

appealing party has the burden to bring forth a record showing that error was preserved). This

10 error-preservation requirement applies to many claims implicating the violation of constitutional

rights, including speedy-trial claims. See Henson v. State, 407 S.W.3d 764, 768 (Tex. Crim. App.

2013). The rationale therefor is that a long delay in the trial can often benefit a defendant, such as

through dismissal of the charge during the delay. Id. at 769. “The requirement of preservation

forces the defendant to pick one strategy. He can either fail to insist upon a speedy trial and

possibly reap benefits caused by delay, or he can insist on a prompt trial, and if it is not granted,

argue for a dismissal. He may not do both.” Id. Moreover, at least two of the Barker v. Wingo

factors utilized in a speedy-trial analysis are “fact-specific inquiries and may not be apparent from

the trial record,” which require further development of the record through a hearing so that

reviewing courts may accurately analyze the claim. Id.; see Barker v. Wingo, 407 U.S. 514, 530–

32 (1972) (setting forth the factors used to analyze a speedy-trial claim).

The record indicates that at no point prior to trial did Appellant file a motion for speedy

trial or otherwise take action to indicate that he was seeking a speedy trial. 2 See Henson, 407

S.W.3d at 769 (recognizing that “[a] speedy-trial demand should be, at the very least,

unambiguous”). On the contrary, the record shows that Appellant himself filed multiple pre-trial

motions for continuance. Additionally, there is nothing in the record suggesting that Appellant

2 Appellant first raised the speedy-trial issue in his amended motion for new trial filed on December 16, 2022, more than thirty days past the imposition of sentence on August 23, 2022. The record does not indicate that Appellant received leave of court to file an untimely amended motion for new trial. Because Appellant did not file his amended motion for new trial within thirty days of the imposition of sentence or receive leave of court to file the amended motion, the motion is not timely, and we disregard the arguments within the motion. See TEX. R. APP. P. 21.4(a) (“The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.”); see also Rubio v. State, 638 S.W.3d 693, 699 (Tex. Crim. App. 2022) (recognizing that TEX. R. APP. P. 21.4 “absolutely and explicitly prohibits a defendant from filing a motion for new trial beyond 30 days after sentencing” and that an amended motion for new trial must be filed with leave of court and within the 30-day period for filing a motion for new trial).

11 objected to the State’s motions for continuance. In fact, one motion expressly stated that

Appellant did not oppose the motion.

For these reasons, we conclude that Appellant has not preserved his speedy-trial claim for

our review, and it is waived. See id. (defendant waived appellate review of his speedy-trial claim

where he made “no effort to demand a speedy trial[,]” which was shown through the lack of a

speedy-trial motion, the absence of a request of a hearing on the delays, and the defendant’s

agreement to each reset of the trial date); Flores v. State, No. 07-16-00071-CR, 2018 WL 1055872,

at *6–7 (Tex. App.—Amarillo Feb. 26, 2018, pet. ref’d) (mem. op., not designated for publication)

(defendant failed to preserve his speedy-trial claim despite filing a speedy-trial motion because the

defendant did not take additional steps to pursue a speedy-trial claim and there was no evidence of

prejudice to his defense due to the lack of both a hearing on the claim and evidence to support the

claim).

Accordingly, we overrule Appellant’s third issue.

VI. CERTIFICATION OF RIGHT TO APPEAL

We note that the trial court has certified Appellant’s right to appeal in this case, but the

certification does not bear Appellant’s signature or that of his attorney indicating that he has been

informed of his rights to appeal and to file a pro se petition for discretionary review with the Texas

Court of Criminal Appeals. See TEX. R. APP. P. 25.2(d). We thus find that the certification is

defective and that neither Appellant’s attorney nor the trial court has corrected the defect.

The Court ORDERS Appellant’s attorney, pursuant to Rule 48.4, to send Appellant a copy

of this opinion and this Court’s judgment, to notify Appellant of his right to file a pro se petition

for discretionary review, and to inform Appellant of the applicable deadlines. See TEX. R. APP. P.

12 48.4, 68. The Court further ORDERS Appellant’s attorney to comply with all the requirements of

Rule 48.4. See TEX. R. APP. P. 48.4.

VII. CONCLUSION

We affirm the judgments supporting Appellant’s convictions.

LISA J. SOTO, Justice

June 30, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

(Do Not Publish)