Oliver v. State

787 S.W.2d 170, 1990 WL 52620

• Court: Court of Appeals of Texas
• Decided: June 13, 1990
• Docket: 09-89-002 CR, 09-89-003 CR
• Status: Published

Opinions

OPINION

BURGESS, Justice.

Appellant was convicted, in a consolidated trial, of the offenses of possession of the controlled substances phenylacetone in an amount in excess of 400 grams and methamphetamine in an amount less than 28 grams. The jury assessed punishment at ninety-nine years’ confinement in the Texas Department of Corrections and a $100,000 fine and twenty years’ confinement in the Texas Department of Corrections and a $10,000 fine, respectively. Appellant perfected this appeal urging five identical points of error in each case. We will address them chronologically rather than numerically.

Point of error two asserts each indictment is fundamentally defective for failing to state an offense. Neither indictment alleges any culpable mental state. The state claims that appellant waived error by not complaining of this defect before the day of trial. TEX. CODE CRIM.PROC. ANN. art. 1.14(a), (b) (Vernon Supp.1989) provides:

(a) The defendant in a criminal prosecution for any offense may waive any rights secured him by law....

(b) If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.

Appellant argues the article 1.14 waiver is inapplicable in this case because no offense was ever charged. In order to invoke the jurisdiction of the trial court the charging instrument must allege an offense; otherwise, jurisdiction never vests in the trial court and any judgment that is rendered thereon is void. Thompson v. State, 697 S.W.2d 413 (Tex.Crim.App.1985). To be valid, an indictment must allege each essential element of the offense sought to be charged. Ex parte Elliott, 746 S.W.2d 762 (Tex.Crim.App.1988). Unless the definition of the offense clearly disposes with the requirement of a culpable mental state, it must be pleaded in the charging instrument. Thompson, 697 S.W.2d at 415. If an element is omitted, the trial court never acquires jurisdiction, a conviction based thereon is void, and thus a jurisdictional defect in the indictment may be raised at any time. LaBelle v. State, 692 S.W.2d 102 (Tex.Crim.App.1985).

TEX. CONST art. V, sec. 12(b) (1891, amended 1985), reads:

An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense_ The practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

The question is whether the face of the indictments confer jurisdiction on the district court. If they do not, they are void. Article 1.14 applies to defects, even fundamental defects, in indictments. An instrument so defective that it does not charge a person with the commission of an offense is not a charging instrument under TEX. CONST, art. V, sec. 12, does not invest a court with jurisdiction and such defect will not be waived pursuant to TEX. CODE CRIM.PROC.ANN. art. 1.14 (Vernon Supp.1989). See Milam v. State, 742 S.W.2d 810 (Tex.App.—Dallas 1988, pet. granted); Studer v. State, 757 S.W.2d 107 (Tex.App.—Dallas 1988, pet. granted). Arguably, article 1.14 would do away with the former fundamental defect rules in cases other than where the indictment fails to aver facts constituting a criminal offense. See Aylor v. State, 727 S.W.2d 727, 730 (Tex.App.—Austin 1987, pet. ref’d). The 1985 amendments to the Texas Constitution did not dispense with the requirement that an indictment state an offense or eliminate the right to indictment by grand jury. The court in Studer, 757 S.W.2d at 110, noted the constitutional requirement that the indictment charge an offense be read practically rather than technically. Here, there are no words alleged in the indictments which can reasonably substitute for the missing culpable mental state. An essential element of the offense is simply and utterly absent from the face of the instruments. Therefore, the instruments were fundamentally defective, did not charge offenses, and the trial court was without jurisdiction. See Murk v. State, 775 S.W.2d 415 (Tex.App.—Dallas 1989, pet. granted). Point of error two is sustained.

Point of error three claims the court erred in refusing to sustain appellant’s objection to the state's use of peremptory challenges to exclude black veniremen from jury service. The record reflects appellant is white. Appellant abandons the claim that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) applies in this case. Appellant argues he preserved his complaint under TEX. CODE CRIM.PROC.ANN. art. 35.261(a), (b) (Vernon 1989), which provides:

(a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.

(b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.

The state’s attorney exercised peremptory strikes against eight of the nine black veniremen. The state’s attorney offered no explanation for the strikes, on the basis article 35.261 applies only to strikes made against persons of the same race as the defendant. If appellant were a black person, a prima facie case of discrimination was made on Batson grounds. See Dewberry v. State, 776 S.W.2d 589 (Tex.Crim.App.1989).

The state argues article 35.261 did no more than codify Batson and Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987), which held:

In order to invoke the protections set forth in Batson, supra, a defendant must establish purposeful discrimination by showing that:

1. he was a member of a cognizable racial group;

2. the prosecutor had exercised peremptory challenges to remove from the ve-nire members of the defendant’s race (peremptory challenges constitute a jury selection practice which permits those to discriminate who are of a mind to discriminate); and

3. the facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen on account of their race.

The significant difference between Kee-ton and article 35.261 is the second Keeton requirement is expressly limited to members of the defendant’s race. This requirement is conspicuously absent from the statute, which contains much of the same language as Keeton. The statute could have been drafted to state “that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of defendant’s race” or “that challenges made by the attorney representing the state were made for the purpose of excluding members of defendant's race from the jury.” The subpart stating the ultimate finding to be made by the trial court could also have been drafted to state “If the court determines the attorney representing the state challenged prospective jurors of defendant’s race_” It does not. There is no ambiguity in the statute for us to construe. Its clear language mandates that the trial court grant the statutory relief if the defendant shows he is of an identifiable racial group, if he makes a prima facie showing the prosecutor struck venire members based on race, and if the court finds the prosecutor, in fact, struck venire members because of their race. We hold appellant may be entitled to relief under article 35.-261 even though the state’s peremptory challenges of which he complains were used against venire members of a different racial group. The trial court made no specific ruling whether appellant had established a prima facie case tending to show that challenges made by the state’s attorney were made for reasons based on race. Failure to do so was error. Point of error number three is sustained. Were this the only point of error sustained in this opinion, we would abate the appeal and order the trial court to conduct a hearing pursuant to article 35.261.

Appellant’s first point of error asserts the evidence is insufficient to sustain the convictions. We review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234 (Tex.Crim.App.1989).

Appellant set up a methamphetamine manufacturing facility, hired two individuals to watch the chemicals during processing, then contacted a Harris County narcotics officer and informed him of the location of the laboratory. Appellant gave the officer detailed information including the type of methamphetamine being manufactured, the size of the manufacturing equipment, and the method of manufacture. Appellant accompanied the officer to Tyler County and led local law enforcement personnel to the laboratory. A gallon bottle containing methamphetamine oil, jars with methamphetamine residue, a bottle containing approximately five grams of methamphetamine, a syringe, a spoon, and approximately one gram methamphetamine oil were all confiscated during the raid which resulted in the immediate arrest of the two co-defendants and the eventual arrest of appellant. The assistants testified at trial that appellant set up the facility and actually processed the drugs. They attributed ownership of the seized drugs to appellant. They also testified appellant mixed the chemicals to start the “cook.” Appellant concedes he set up the lab. He also concedes he instructed the co-defendants on the manufacturing procedures.

The police found various containers of what was identified through laboratory tests as phenylacetone and methamphetamine, at a location where appellant had recently been. Appellant does not complain on appeal that the evidence is insufficient to show that he exercised actual care, custody and control over the phenylacetone and methamphetamine found on the premises, or that the substances found were in fact phenylacetone and methamphetamine in the amounts charged.

Appellant’s complaint on appeal is “the evidence fails to exclude the hypothesis that appellant was assisting the police when he ‘possessed’ the substances in question.” The testimony of two Houston Police Department narcotics officers established appellant contacted one of the officers on the day of the raid and told the officer he knew the whereabouts of some people who were involved in cooking methamphetamine, and that he wanted some help with the Harris County District Attorney’s Office in getting a sentence lowered on a Harris County conviction. Appellant had given the officers information on other individuals in the past. The previous day a female confederate of the appellant had contacted the other narcotics officer and told him she and appellant “had some information on a methamphetamine investigation” but she gave the officer no further information and did not identify the location of the operation. This officer testified he told the woman the following:

That any information that she had or Mr. Oliver had concerning the manufacturing of methamphetamine, information on people cooking, that indeed if anything was done, an arrest was made, that it could help his case and that we would go through certain procedures of getting that to help him concerning his case.

There was no written plea offer or agreement to exchange assistance in a case for information. Appellant’s brief contains the following factual statement:

Appellant set up a clandestine drug lab, ... recruited his old cooking partner [D.G.] to assist him, in return for a usual percentage of the finished product. Appellant did all of this without the knowledge or approval of police, or the local prosecutor. He then turned his old confederates over to the law.

Appellant claims his motive in assisting the police negates the objective to exercise care, custody and control over the drugs. However, the alleged motive and the requisite intent are not mutually exclusive. Appellant could intend to possess the controlled substances for a number of purposes, such as sale or personal use, or intend to utilize that possession in a number of ways, such as financial gain or physical gratification. Accepting as true appellant’s theme of setting up his confederates for the purpose of turning them over to the police to obtain bargaining power against a prior conviction, he thereby reveals a specific intent to exercise care, custody and control of the controlled substances. That appellant would likely relinquish possession to the authorities upon the accomplishment of his purpose is irrelevant.

Appellant argues, however, that his conduct is justified by TEX.PENAL CODE ANN. sec. 9.21(a), (d)(1), (2) (Vernon 1974), which states:

(a) [Cjonduct is justified if the actor reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process.

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(d) The justification afforded by this section is available if the actor reasonably believes:

(1) the court or governmental tribunal has jurisdiction or the process is lawful, even though the court or governmental tribunal lacks jurisdiction or the process is unlawful; or

(2) his conduct is required or authorized to assist a public servant in the performance of his official duty, even though the servant exceeds his lawful authority.

The justification provided by this section is conditioned upon the existence of a reasonable belief the conduct is required or authorized by law. Appellant concedes the officers did not know of or authorize appellant’s actions. Even if appellant had some hope of obtaining some sort of credit for informing, nothing in the record hints at any belief the appellant’s possession of controlled substances might, under such circumstances, be required or authorized by law. There was no court order and no legal process being executed. Nor is there any evidence to even imply appellant believed he was acting on behalf of any public servant. Appellant did not raise the hypothesis that he was assisting the police. Having considered the arguments presented and viewing the evidence in the light most favorable to the prosecution, we find any rational trier of fact could have found appellant acted intentionally or knowingly. Point of error one is overruled.

Point of error five urges the charge is fundamentally defective. Appellant claims the trial court authorized a conviction on the basis of a culpable mental state less than that statutorily required. We disagree. Appellant made no objection to the charge, which contained the following instructions:

A person commits the offense of unlawful possession of a controlled substance is he knowingly or intentionally possesses a controlled substance. You are instructed that Phenylacetone and Methamphetamine are controlled substances.

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“Required culpability” means the mental state required by law such as intent, knowledge, recklessness or criminal negligence.

The actual application paragraphs charged the culpable mental state as “knowingly and intentionally.”

Where jury charge error was not preserved at trial, in order for error to require reversal of the conviction, the error must have been so harmful, in light of the entire record and the entire charge, that the defendant was denied a fair and impartial trial in that he suffered actual egregious harm. Arline v. State, 721 S.W.2d 348 (Tex.Crim.App.1986); Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (opinion on rehearing). The part of the court’s charge to which we normally look in determining whether the charge is fundamentally erroneous is the part that applied the law to the facts. Thomas v. State, 587 S.W.2d 707 (Tex.Crim.App.1979); Lagrone v. State, 742 S.W.2d 698 (Tex.App.—Fort Worth 1982), aff'd, 742 S.W.2d 659 (Tex.Crim.App.1987). Although the instruction on “required culpability” included as an example of a mental state less culpable than what the jury was required to find to convict, the instruction on “possession” stated the correct mental state and the application paragraph correctly charged the jury. We found the evidence sufficient to prove the culpable mental state under point of error one. The complained of charge was not egregious and did not deny appellant a fair and impartial trial. Point of error five is overruled.

Point of error four complains the judgments contain a fundamental defect. The two offenses here appealed were consolidated on the state’s motion. The judgments order the sentences run consecutively. The state concedes error and agrees the sentences should run concurrently. Point of error four is sustained.

Points of error one and five are overruled. Point of error three is sustained, but we do not remand for a hearing because of the disposition of the cause under point of error two. Point of error four is sustained, but we do not reform the judgments to order the sentences run concurrently because of the disposition of the cause under point of error two. Point of error two is sustained and we reverse the trial court’s judgments and remand the causes to the trial court with instructions to dismiss the indictments.

REVERSED AND REMANDED WITH INSTRUCTIONS.