Kevin Lawson Blaydes v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 30, 2021
• Docket: 07-20-00188-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00188-CR

KEVIN LAWSON BLAYDES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Hall County, Texas Trial Court No. 3957, Honorable Stuart Messer, Presiding

June 30, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Kevin Lawson Blaydes, appeals from a judgment adjudicating his guilt

and sentencing him to forty years in prison for engaging in criminal activity. He raises

three issues attacking the sufficiency of the predicate offense (possession with intent to

deliver) to support a conviction for engaging in organized criminal activity.1 We reverse

and remand.

1Appellant’s original counsel filed an Anders brief, contending that no arguable grounds warranting an appeal could be found. Upon conducting our own analysis as mandated by pertinent authority, we found arguable issues and abated the cause for the appointment of new counsel. Background

Appellant was indicted for “knowingly possess[ing] with intent to deliver, a

controlled substance, namely methamphetamine, in an amount of one gram or more, but

less than four grams.” The State further alleged that he “did then and there commit[ted]

said offense with the intent to establish, maintain, or participate in a combination or in the

profits of a combination who collaborated in carrying on said criminal activity.” Appellant

pled guilty per a plea bargain and signed a judicial confession supporting his plea. The

confession contained the following statement: “I have read the indictment or information

filed in this case and that I committed each, and every allegation it contains. I am guilty

of the offense alleged as well as all lesser included offenses.” Per the agreement,

appellant was placed on seven years’ deferred adjudication (probation) and fined $7,000.

The State subsequently moved to adjudicate his guilt based on his violation of several

conditions of probation. The trial court heard the motion, found that appellant violated his

probation, adjudicated appellant guilty of the charged offense, and sentenced him to forty

years in prison.

The Law

The issues before us are controlled by the opinions in Walker v. State, 594 S.W.3d

330 (Tex. Crim. App. 2020) and Hughitt v. State, 583 S.W.3d 623 (Tex. Crim. App. 2019).

We apply them here. In Walker, the State had charged Walker with “engaging in

organized criminal activity based upon the commission of the ‘predicate’ offense of

possession of a controlled substance with intent to deliver.” Walker, 594 S.W.3d at 336.

However, the court held that possessing a controlled substance with intent to deliver

alone was not a predicate offense. Id. at 336–37. The State had to prove that appellant

not only possessed a control substance with the intent to deliver but did so “‘through 2 forgery, fraud, misrepresentation, or deception.’” Id. at 337. The circumstances in Walker

are the circumstances here.

Analysis

Appellant was charged with engaging in criminal activity by possessing a controlled

substance with the intent to deliver. Omitted from the charge was reference to possessing

through forgery, fraud, misrepresentation, or deception. Thus, he could not have been

convicted of engaging in organized criminal activity as the purported crime was charged

in the indictment.

Simply put, the indictment failed to charge the crime of engaging in organized

criminal activity. Assuming arguendo that this lapse was a technical error subject to

waiver if not timely raised, see TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005)

(stating that defects in the substance of an indictment are waived if not raised before trial

commences), an allegation of no evidence to support a conviction is not waived if untimely

asserted. This is so because a conviction supported by no evidence renders the judgment

void. Smith v. State, 309 S.W.3d 10, 17–18 (Tex. Crim. App. 2010) (quoting Nix v. State,

65 S.W.3d 664 (Tex. Crim. App. 2001)).

Again, the State endeavored to convict appellant of engaging in organized criminal

activity under § 71.02(a)(5) of the Texas Penal Code. That provision required proof of a

statutorily specified predicate offense before the purported crime constituted engaging in

organized criminal activity. The supposed predicate offense averred by the State was

knowingly possessing, with intent to deliver, a controlled substance. But, as held in

Walker, that is not a predicate offense of engaging in organized criminal activity. So, the

indictment did not actually allege that crime. And, in conceding through his “judicial

confession” to guilt of “the alleged offense” and commission of the allegations within the 3 indictment, appellant admitted guilt for something which was not a crime within

§ 71.02(a)(5). Yet, the State would have us conclude that his concession was evidence

of the crime for which he was convicted.

Admitting to assault is not proof of murder since the elements differ. For instance,

the State could prove the accused intended to cause serious bodily injury and committed

an act clearly dangerous to human life that caused death of an individual to secure a

murder conviction. See TEX. PENAL CODE ANN. § 19.02(b)(2) (West 2019) (so describing

the elements of one aspect of murder). However, the accused admitting to an allegation

that he intentionally caused bodily injury, see id. at § 22.01 (describing that as a way to

commit assault), does not prove he caused death for purposes of murder. The same is

true of engaging in organized criminal activity.

The crime for which appellant was convicted has elements in addition to those

averred in the indictment. One such element is the predicate offense. While possessing

a controlled substance may be a part of a predicate offense, there are other components.

That possession was “through forgery, fraud, misrepresentation, or deception” is one of

them, and it was omitted. TEX. PENAL CODE ANN. § 71.02(a)(5) (West Supp. 2020). So,

admitting to mere allegations of possession with intent does not establish the omitted

element touching upon forgery, fraud, misrepresentation, or deception. In turn, that

means there is no evidence of the predicate offense necessary to convict appellant of

engaging in organized criminal activity under § 71.02(a)(5) and his conviction for same is

void.

That does not mean appellant is entitled to acquittal, though. Instead, the Court of

Criminal Appeals recognized that a conviction under circumstances like those here could

or should be reformed to one for possessing a controlled substance with intent to deliver 4 if the remaining conditions necessary for reformation were met. Walker, 594 S.W.3d at

340. Those conditions are “1) whether the [fact-finder] necessarily found all the elements

of that offense beyond a reasonable doubt, and 2) whether the evidence was legally

sufficient to support that offense.” Id.

As previously mentioned, appellant pled guilty to the offense as charged and

signed a judicial confession. In the latter he confessed to committing each allegation in

the indictment including “all lesser included offenses.” That necessarily means he also

admitted to possessing, with the intent to deliver, a controlled substance in an amount of

one gram or more, but less than four grams. That admission suffices to support his

conviction for the lesser included offense of possessing a controlled substance with the

intent to deliver. Haney v. State, 588 S.W.2d 913, 915 (Tex. Crim. App. [Panel Op.] 1979)

(stating that the court had repeatedly emphasized that “a judicial confession to the

allegations of an indictment will alone be sufficient to support a conviction on a guilty

plea”).

Consequently, we reform the judgment to reflect appellant’s guilt for and conviction

of possessing, with intent to deliver, namely, methamphetamine, in an amount of one

gram or more, but less than four grams. We remand the cause to the trial court for a new

trial on punishment as required by our opinion in Walker v. State, No. 07-16-00245-CR,

2020 Tex. App. LEXIS 6734, at *4 (Tex. App.—Amarillo Aug. 20, 2020, no pet.) (mem.

op., not designated for publication). Our disposition of appellant’s first issue dispenses

with the need to address his second.

Brian Quinn Chief Justice

Do not publish.