In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-17-00036-CR
JEFFREY WAYNE HARPER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 276th District Court Marion County, Texas Trial Court No. F14743
Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Burgess MEMORANDUM OPINION A jury convicted Jeffrey Wayne Harper of possession of methamphetamine, a prohibited
substance, in a correctional facility. The jury further found true the State’s allegations that Harper
was twice previously convicted of felony offenses and assessed a sentence of seventy-five years’
imprisonment. The trial court entered judgment in accordance with the jury’s verdict and also
ordered Harper, who was indigent at the time of trial, to pay $400.00 in attorney’s fees for his
court-appointed counsel. Harper’s sole point of error on appeal argues that the jury charge was
erroneous because it failed to charge the jury on the lesser-included offense of possession of less
than one gram of methamphetamine.
Because the uncontested evidence established that Harper’s contraband was located inside
a correctional facility, we find that there was less than a scintilla of evidence that, if Harper was
guilty, he was guilty only of possession of a controlled substance. Accordingly, we conclude that
the trial court did not err in refusing Harper’s requested instruction and overrule Harper’s sole
point of error on appeal. However, because Harper is indigent, we modify the trial court’s
judgment to delete the assessment of attorney’s fees for Harper’s court-appointed counsel. We
further modify the trial court’s judgment to reflect that Harper pled not guilty to the offense. As
modified, we affirm the trial court’s judgment.
I. The Evidence at Trial
Kurt McKinney, a trooper with the Texas Department of Public Safety (TDPS), testified
that he arrested Harper on existing warrants after locating him in the parking lot of a local game
room. McKinney searched Harper incident to arrest, asked him if he had anything illegal on his
2 person, and warned him that carrying contraband into the jail could lead to prosecution for another
offense. In response to McKinney’s questions, Harper said that he had empty syringes and
cigarettes in his front pockets. When asked if he thought there might be something else on him,
he replied, “No, sir. I don’t think there’s anything else.”
McKinney clarified that no illegal substances were found on Harper’s person during the
search incident to arrest. On the way to the Marion County Jail, McKinney and another law
enforcement officer, Mike Williams, instructed Harper that he would be strip-searched at the jail
and provided him with another opportunity to relinquish any contraband before entering the
correctional facility. Harper did not take advantage of the opportunity. McKinney and Williams
transported Harper to the sally port of the jail, where he was met by Carl Beaty, a jailor at the
Marion County Sheriff’s Department.
Beaty testified that he asked Harper if he was carrying contraband while they were both in
the sally port. According to Beaty, Harper said he might have something, but did not disclose
what the item was or where it was located. Beaty testified that he again gave Harper the
opportunity to disclose the location of any contraband, but that Harper did not do so. Beaty brought
Harper into the jail, took off his handcuffs, and asked Harper to empty his pockets prior to the
search. According to Beaty, Harper did go through his pockets, but did not produce the
methamphetamine. Beaty then conducted a search of Harper’s person and informed McKinney
that a small bag of methamphetamine, which was wrapped up in a receipt, was located in the rear
left pocket of Harper’s overalls. Harper asked Beaty to flush the methamphetamine, to no avail.
3 Stephany Jackson, a forensic scientist with the TDPS Crime Laboratory in Tyler, Texas,
testified that the small bag contained .05 grams of methamphetamine. McKinney explained to the
jury that, if the contraband was located on Harper before he was transported to the jail, the charge
against him would have been a lesser charge of possession of less than one gram of
methamphetamine. Based on this evidence, along with arguments that Harper did not knowingly
and intentionally bring anything into the jail, Harper objected to the jury charge and asked that it
include a lesser-included offense instruction for possession of less than one gram of
methamphetamine. The trial court denied Harper’s request.
II. There Was No Jury Charge Error
We employ a two-step process in our review of alleged jury charge error. See Abdnor v.
State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether error
occurred and then evaluate whether sufficient harm resulted from the error to require reversal.”
Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871
S.W.2d at 731–32).
In order to be entitled to a lesser-included-offense instruction, the record must “contain
some affirmative evidence that would permit a jury rationally to find that, if a defendant is guilty,
he is guilty only of the lesser-included offense.” Nguyen v. State, 506 S.W.3d 69, 81 (Tex. App.—
Texarkana 2016, pet. ref’d) (citing Schmidt v. State, 278 S.W.3d 353, 362 (Tex. Crim. App. 2009)).
Thus, “[t]he evidence must establish the lesser-included offense as a valid rational alternative to
the charged offense.” Id. (citing Wesbrook v. State, 29 S.W.3d 103, 113–14 (Tex. Crim. App.
2000)). “Anything more than a scintilla of evidence is sufficient to entitle a defendant to an
4 instruction on the lesser charge.” Id. (citing Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App.
2001)). “However, if a defendant . . . presents no evidence and there is no affirmative evidence
otherwise showing he is guilty only of a lesser-included offense, then a charge on a lesser-included
offense is not required.” Id. (citing Bignall v. State, 887 S.W.2d 21, 22–24 (Tex. Crim. App.
1994); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985)). Additionally, “it is not
enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather,
there must be some evidence directly germane to the lesser-included offense for the finder of fact
to consider before an instruction on a lesser-included offense is warranted.” Hampton v. State,
109 S.W.3d 437, 441 (Tex. Crim. App. 2003), abrogated on other grounds by Grey v. State, 298
S.W.3d 644 (Tex. Crim. App. 2009).
To support Harper’s conviction for possession of a prohibited substance in a correctional
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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-17-00036-CR
JEFFREY WAYNE HARPER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 276th District Court Marion County, Texas Trial Court No. F14743
Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Burgess MEMORANDUM OPINION A jury convicted Jeffrey Wayne Harper of possession of methamphetamine, a prohibited
substance, in a correctional facility. The jury further found true the State’s allegations that Harper
was twice previously convicted of felony offenses and assessed a sentence of seventy-five years’
imprisonment. The trial court entered judgment in accordance with the jury’s verdict and also
ordered Harper, who was indigent at the time of trial, to pay $400.00 in attorney’s fees for his
court-appointed counsel. Harper’s sole point of error on appeal argues that the jury charge was
erroneous because it failed to charge the jury on the lesser-included offense of possession of less
than one gram of methamphetamine.
Because the uncontested evidence established that Harper’s contraband was located inside
a correctional facility, we find that there was less than a scintilla of evidence that, if Harper was
guilty, he was guilty only of possession of a controlled substance. Accordingly, we conclude that
the trial court did not err in refusing Harper’s requested instruction and overrule Harper’s sole
point of error on appeal. However, because Harper is indigent, we modify the trial court’s
judgment to delete the assessment of attorney’s fees for Harper’s court-appointed counsel. We
further modify the trial court’s judgment to reflect that Harper pled not guilty to the offense. As
modified, we affirm the trial court’s judgment.
I. The Evidence at Trial
Kurt McKinney, a trooper with the Texas Department of Public Safety (TDPS), testified
that he arrested Harper on existing warrants after locating him in the parking lot of a local game
room. McKinney searched Harper incident to arrest, asked him if he had anything illegal on his
2 person, and warned him that carrying contraband into the jail could lead to prosecution for another
offense. In response to McKinney’s questions, Harper said that he had empty syringes and
cigarettes in his front pockets. When asked if he thought there might be something else on him,
he replied, “No, sir. I don’t think there’s anything else.”
McKinney clarified that no illegal substances were found on Harper’s person during the
search incident to arrest. On the way to the Marion County Jail, McKinney and another law
enforcement officer, Mike Williams, instructed Harper that he would be strip-searched at the jail
and provided him with another opportunity to relinquish any contraband before entering the
correctional facility. Harper did not take advantage of the opportunity. McKinney and Williams
transported Harper to the sally port of the jail, where he was met by Carl Beaty, a jailor at the
Marion County Sheriff’s Department.
Beaty testified that he asked Harper if he was carrying contraband while they were both in
the sally port. According to Beaty, Harper said he might have something, but did not disclose
what the item was or where it was located. Beaty testified that he again gave Harper the
opportunity to disclose the location of any contraband, but that Harper did not do so. Beaty brought
Harper into the jail, took off his handcuffs, and asked Harper to empty his pockets prior to the
search. According to Beaty, Harper did go through his pockets, but did not produce the
methamphetamine. Beaty then conducted a search of Harper’s person and informed McKinney
that a small bag of methamphetamine, which was wrapped up in a receipt, was located in the rear
left pocket of Harper’s overalls. Harper asked Beaty to flush the methamphetamine, to no avail.
3 Stephany Jackson, a forensic scientist with the TDPS Crime Laboratory in Tyler, Texas,
testified that the small bag contained .05 grams of methamphetamine. McKinney explained to the
jury that, if the contraband was located on Harper before he was transported to the jail, the charge
against him would have been a lesser charge of possession of less than one gram of
methamphetamine. Based on this evidence, along with arguments that Harper did not knowingly
and intentionally bring anything into the jail, Harper objected to the jury charge and asked that it
include a lesser-included offense instruction for possession of less than one gram of
methamphetamine. The trial court denied Harper’s request.
II. There Was No Jury Charge Error
We employ a two-step process in our review of alleged jury charge error. See Abdnor v.
State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether error
occurred and then evaluate whether sufficient harm resulted from the error to require reversal.”
Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871
S.W.2d at 731–32).
In order to be entitled to a lesser-included-offense instruction, the record must “contain
some affirmative evidence that would permit a jury rationally to find that, if a defendant is guilty,
he is guilty only of the lesser-included offense.” Nguyen v. State, 506 S.W.3d 69, 81 (Tex. App.—
Texarkana 2016, pet. ref’d) (citing Schmidt v. State, 278 S.W.3d 353, 362 (Tex. Crim. App. 2009)).
Thus, “[t]he evidence must establish the lesser-included offense as a valid rational alternative to
the charged offense.” Id. (citing Wesbrook v. State, 29 S.W.3d 103, 113–14 (Tex. Crim. App.
2000)). “Anything more than a scintilla of evidence is sufficient to entitle a defendant to an
4 instruction on the lesser charge.” Id. (citing Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App.
2001)). “However, if a defendant . . . presents no evidence and there is no affirmative evidence
otherwise showing he is guilty only of a lesser-included offense, then a charge on a lesser-included
offense is not required.” Id. (citing Bignall v. State, 887 S.W.2d 21, 22–24 (Tex. Crim. App.
1994); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985)). Additionally, “it is not
enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather,
there must be some evidence directly germane to the lesser-included offense for the finder of fact
to consider before an instruction on a lesser-included offense is warranted.” Hampton v. State,
109 S.W.3d 437, 441 (Tex. Crim. App. 2003), abrogated on other grounds by Grey v. State, 298
S.W.3d 644 (Tex. Crim. App. 2009).
To support Harper’s conviction for possession of a prohibited substance in a correctional
facility as charged in the indictment, the State was required to prove that appellant possessed a
controlled substance, namely, methamphetamine, while in a correctional facility or on property
owned, used, or controlled by a correctional facility. See TEX. PENAL CODE ANN. § 38.11(d)(1)
(West 2016).
Harper does not dispute that he possessed methamphetamine in a correctional facility, and
the evidence was uncontested on this point. Rather, he argues that he “did not intentionally take
or possess, or knowingly take or possess a controlled substance while in a correctional facility.”
In other words, he challenges the mens rea element of the offense. However, Section 38.11(d)
does not require a culpable mental state. See Brown v. State, 89 S.W.3d 630, 632–33 (Tex. Crim.
App. 2002) (rejecting arguments similar to Harper’s in a case discussing sufficiency of the
5 evidence and concluding the possession of a controlled substance by a person brought to jail after
his arrest did not prevent prosecution under Section 38.11(b) on the basis that he was handcuffed
and his conduct was not voluntary).
At trial, the State conclusively established that Harper possessed methamphetamine in a
correctional facility, and no affirmative evidence showed that he was guilty only of a lesser-
included offense. Accordingly, we conclude that the trial court did not err in refusing Harper’s
lesser-included-offense instruction. Therefore, we overrule Harper’s sole point of error on appeal.
III. The Judgment Must be Modified
Because Harper was indigent, the trial court appointed counsel to represent him during trial
and on appeal. Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has
the authority to order the reimbursement of court-appointed attorney’s fees only if “the judge
determines that a defendant has financial resources that enable the defendant to offset in part or in
whole the costs of the legal services provided . . . , including any expenses and costs.” TEX. CODE
CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2016). “[T]he defendant’s financial resources and
ability to pay are explicit critical elements in the trial court’s determination of the propriety of
ordering reimbursement of costs and fees” of legal services provided. Armstrong v. State, 340
S.W.3d 759, 765–66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex.
Crim. App. 2010)). Since there was no finding that Harper was able to pay them, the assessment
of attorney’s fees was erroneous. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013);
see also Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d
944, 946–47 (Tex. App.—Texarkana 2013, no pet.).
6 This Court has the power to sua sponte correct and modify the judgment of the trial court
for accuracy when the necessary data and information are part of the record. See TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d
526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (“The authority of an appellate court to reform
incorrect judgments is not dependent upon the request of any party, nor does it turn on the question
of whether a party has or has not objected in the trial court.”). Therefore, we modify the trial
court’s judgment by deleting the assessment of attorney’s fees.
Additionally, the trial court’s judgment contains a notation that Harper pled guilty to this
offense. Because that notation is incorrect, we further modify the trial court’s judgment to reflect
Harper’s plea of not guilty.
IV. Conclusion
We modify the trial court’s judgment by deleting the assessment of attorney’s fees for
Harper’s court-appointed counsel and to reflect that Harper pled “not guilty” to the offense. As
Ralph K. Burgess Justice
Date Submitted: September 1, 2017 Date Decided: September 18, 2017
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