Hughitt v. State

539 S.W.3d 531
CourtCourt of Appeals of Texas
DecidedFebruary 8, 2018
DocketNos. 11-15-00277-CR & 11-15-00278-CR
StatusPublished
Cited by21 cases

This text of 539 S.W.3d 531 (Hughitt v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hughitt v. State, 539 S.W.3d 531 (Tex. Ct. App. 2018).

Opinion

JOHN M. BAILEY, JUSTICE

This court's former opinion and judgment dated October 31, 2017, are withdrawn. This court's opinion and judgment dated February 8, 2018, are substituted therefor. The State's motion for rehearing is denied.

The jury convicted Shanna Lynn Hughitt of two offenses: (1) engaging in organized criminal activity (Cause No. 11-15-00277-CR) and (2) possession with intent to deliver between four and 200 grams of methamphetamine in a drug-free zone (Cause No. 11-15-00278-CR). The trial court assessed Appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for eighteen years for the offense of engaging in organized criminal activity and ten years for the offense of possession with intent to deliver in a drug-free zone. The trial court ordered that the sentences run consecutively.

Appellant presents three issues on appeal. She asserts in her first issue that the trial court erred in denying her motion to quash the indictment and her motion for directed verdict on the charge of engaging in organized criminal activity. In her second issue, she challenges the sufficiency of the evidence supporting both convictions. In her third issue, Appellant contends that her trial counsel was ineffective.

Because the indictment in Cause No. 11-15-00277-CR failed to allege an offense, we vacate the judgment of conviction for engaging in organized criminal activity and dismiss the indictment. Further, we conclude that there is insufficient evidence to support a conviction for possession with intent to deliver methamphetamine in an amount between four and 200 grams in Cause No. 11-15-00278-CR. However, because we find that the evidence is sufficient to support the lesser included offense of possession with intent to deliver methamphetamine in an amount between one and four grams, we remand that cause to the trial court to reform the judgment and *535to conduct a new trial as to punishment only.

Background Facts

This case originated from an investigation called "Operation Tangled Web," which was undertaken by the Brown County Sheriff's Department over a period of several months The purpose of Operation Tangled Web was to conduct surveillance on a group of people involved in methamphetamine distribution in Brownwood. Investigator Carlyle Noe Gover, a narcotics investigator for the Brown County Sheriff's Department, conducted surveillance of Kevin Sliger. Sliger was a drug dealer. He brought methamphetamine into Brown County from the Dallas-Fort Worth Metroplex and participated in buying and selling methamphetamine with several other drug dealers in Brownwood. Appellant was Sliger's romantic partner.1

Appellant and Sliger used methamphetamine together. Appellant often drove Sliger around because Sliger did not have a driver's license. Appellant was present during a drug transaction between Sliger and another drug dealer named Butch Landon Spearman. Appellant and Sliger stayed together and moved from place to place until January 8, 2014, when Appellant and Sliger moved into a house on Eighth Street. Appellant paid the rent and utilities for the house. The house on Eighth Street was within 1,000 feet of a youth activity center.

On January 15, 2014, law enforcement executed a search warrant on the house on Eighth Street. Appellant and Sliger were both present in the house during the search. Sliger was in the dining room. On Sliger's person, police found approximately thirty-two grams of "cut" (an additive used by drug dealers to dilute drugs), over sixteen grams of methamphetamine, some cocaine, some morphine tablets, lottery tickets, and forty-four dollars in cash. Elsewhere in the dining room, police found marihuana residue and rolling paper.

Appellant was located in the back bedroom. On her person, police found a little over one gram of methamphetamine. On the mattress where Appellant was sitting, police found a broken methamphetamine pipe and a gallon ziplock bag with methamphetamine residue inside. In the bedroom closet, police found almost an ounce of marihuana. Inside the pocket of a pair of men's jeans, police found $786 in cash.

In the kitchen, police found a bean can containing two quarts of "cut." Throughout the house and in plain view, police found packaging, syringes, scales, and a police scanner. Additionally, police found a surveillance camera in the front bedroom window. The contents of the house indicated that both a male and a female lived there.

In addition to Sliger, Operation Tangled Web involved surveillance of several other individuals who were a part of a network of methamphetamine distributors in Brown County, including John Philip Couch, John Simon Armendarez, Butch Landon Spearman, Auston Welker, Chad Cooper, Carri Vickers, Charles Burt, and others. Together, these distributors moved well over 400 grams of methamphetamine into Brown County.

The trial court recognized Investigator Gover and Sergeant James Stroope as experts in narcotics. Investigator Gover and Sergeant Stroope both opined that it is common for a male drug dealer to use a female companion to transport narcotics because it is more difficult for male law *536enforcement officers to search a female. Sergeant Stroope opined that it is common for someone in a relationship with a drug dealer to benefit from that relationship by receiving houses, cars, phones, clothing, food, and money. Investigator Gover opined that the fact that the house on Eighth Street had drug paraphernalia, such as packaging, syringes, and scales, in plain view was an indication that there were no innocent parties residing in the house.

Analysis

Engaging in Organized Criminal Activity

In Appellant's first issue, she asserts that possession with intent to deliver is not one of the enumerated offenses that may form the basis of a conviction for engaging in organized criminal activity. She contends that the trial court erred in denying her motion to quash the indictment in Cause No. 11-15-00277-CR based upon this contention. We agree.

Sufficiency of an indictment is a question of law. State v. Moff , 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Accordingly, we review de novo a trial court's ruling on a motion to quash an indictment. See id. The indictment must state facts that, if proved, show a violation of the law; the indictment must be dismissed if such facts would not constitute a criminal offense. Posey v. State , 545 S.W.2d 162, 163 (Tex. Crim. App. 1977) ; Rotenberry v. State , 245 S.W.3d 583, 586 (Tex. App.-Fort Worth 2007, pet. ref'd).

The State sought to prosecute Appellant for engaging in organized criminal activity pursuant to Section 71.02 of the Texas Penal Code. TEX. PENAL CODE ANN. § 71.02 (West Supp. 2016).

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Bluebook (online)
539 S.W.3d 531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughitt-v-state-texapp-2018.