Pamela Gwynn Krick v. State

• Court: Court of Appeals of Texas
• Decided: July 14, 2016
• Docket: 02-16-00013-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00013-CR

PAMELA GWYNN KRICK APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 97TH DISTRICT COURT OF ARCHER COUNTY TRIAL COURT NO. 2015-0016A-CR

MEMORANDUM OPINION1

Appellant Pamela Gwynn Krick appeals from her conviction for prohibited

substance and items in a correctional facility and ten-year sentence. Because

we conclude that the evidence was sufficient to support her conviction but that

the judgment contains a clerical error, we modify the trial court’s judgment and

affirm it as modified.

1 See Tex. R. App. P. 47.4. On December 19, 2014, Krick and her brother were attempting to move

some of his things out of a residence. Before they arrived at the house, they had

called the police for a “civil standby” to ensure “there’s not a breach of the peace”

and to protect them while they were removing his things. Chief Justin Perron of

the Archer City Police Department and Investigator Tony Hanley with the Archer

County Sheriff’s Office were dispatched to the house. After getting Krick’s and

her brother’s identifications, Perron discovered that Krick had an outstanding

warrant. Perron handcuffed Krick, and Hanley placed her in the back of his

patrol car. Krick was wearing a leather jacket and scrubs, but Perron did not

search her before or after the arrest. After Krick’s brother finished getting his

things from the house, Perron moved Krick to his patrol car and drove her to the

Archer County Jail.

While Perron and Krick were waiting to enter the secure area of the jail, he

warned her that if she had any contraband, she should turn it over before she

was searched and booked to prevent “another charge for introducing contraband

into the jail.” Krick did not tell Perron that she had contraband at that time.

Although Perron did not include in his incident report2 the fact that he informed

Krick to turn over any contraband, it was his normal practice to do so with

everyone he transported to jail. Perron then took Krick to the “book-in area,”

which was a secure area of the jail and where officers search all arrestees before

2 Perron’s incident report was not entered into evidence.

2 being processed into the jail. Krick “immediately” told the booking officer, Tina

Robertson, that she “wanted to use the restroom.” Robertson did not allow Krick

to use the restroom at that time because “a toilet is a subject’s best friend when

they’re trying to get rid of something.” Robertson then told Krick to remove her

jacket, which Krick refused to do because she said she was cold. Robertson

removed the jacket from Krick and found “two baggies with white substance” and

a small set of digital scales in an interior pocket. Another officer conducted a pat-

down search of Krick and found a “torch . . . used to light, heat up what we call a

crack pipe” rolled up in the waistband of Krick’s pants. The substance in the

baggies was tested and identified as methamphetamine.

A grand jury indicted Krick with “intentionally or knowingly tak[ing] a

controlled substance, namely, methamphetamine, into the Archer County Jail, a

correctional facility.” See Tex. Penal Code Ann. § 38.11(b) (West 2011). The

prefatory information to the indictment identified the offense charged as “PROH

SUB CORR FACIL-ALCOHOL/DRUG/PHONE/TOBACCO—38.11(d)(1) PC.” At

the conclusion of the guilt-innocence portion of the trial, the trial court instructed

the jury in the abstract portion of the jury charge that “[a] person commits an

offense if the person takes a controlled substance into a correctional facility.”

See id. The abstract portion of the jury charge also included the statutory

definitions for the culpable mental states of intentionally and knowingly. See id.

§ 6.03(a)–(b) (West 2011). The application portion of the jury charge instructed

the jury that it could find Krick guilty “of the offense of Prohibited Substance and

3 Items in a Correctional Facility . . . as charged in the indictment” if it found

beyond a reasonable doubt that Krick “did . . . intentionally or knowingly take a

controlled substance, namely, methamphetamine into the Archer County Jail, a

correctional facility.” The jury found Krick “guilty of the offense of Prohibited

Substance and Items in a Correctional Facility as charged in the indictment.”

Krick elected for the trial court to assess her punishment. The trial court heard

punishment evidence—including Krick’s prior convictions for forgery, possession

of a controlled substance, fraudulent use or possession of identifying information,

and failure to identify while being a fugitive from justice—and assessed her

punishment at ten years’ confinement.

On appeal, Krick argues that the evidence was insufficient to support a

reasonable inference that she had the requisite intent to possess or transport

methamphetamine in a correctional facility. Specifically, she argues that the

evidence only showed that she may have “intended to possess a controlled

substance in the book-in area of the jail,” not that she intentionally or knowingly

took a controlled substance into the jail. In other words, Krick contends, “[t]he

context and background of the case [do] not contain facts which demonstrate

[she] meant to possess the drugs, let alone that she was aware of their presence

at the time she crossed the threshold into the jail facility.” Krick’s argument,

therefore, is an attack on the sufficiency of the evidence to support the alleged

culpable mental states—intentionally or knowingly.

4 As a preliminary matter, we note that Krick seems to argue that because

the indictment alleged the culpable mental states of intentionally or knowingly,

the offense was “transitioned” into a possession case under section

38.11(d)(1)—possession of a controlled substance or dangerous drug while in a

correctional facility. See Tex. Penal Code Ann. § 38.11(d)(1). The alleged

culpable mental state did not change the character of the charged offense. The

indictment recited the offense elements found in section 38.11(b)—takes a

controlled substance into a correctional facility—and included the culpable

mental states of intentionally or knowingly.3 See id. § 38.11(b). The trial court

followed the language found in the indictment in its jury charge. Section 38.11(b)

does not expressly mandate the appropriate culpable mental state; thus, the

culpable mental state may be alleged as either intentionally, knowingly, or

recklessly. See id. § 6.02(b)–(c) (West 2011). Accordingly, the alleged culpable

mental states did not require the State to prove possession under section

38.11(d)(1). See cf. Smith v. State, No. 06-13-00185-CR, 2014 WL 1379640, at

*1 (Tex. App.—Texarkana Apr. 8, 2014, no pet.) (mem. op., not designated for

publication) (noting that indicted offense under section 38.11(b) included culpable

3 Krick argues that the State alleged the elements of section 38.11(c) in the indictment. That subsection criminalizes taking a controlled substance or dangerous drug on “property owned, used, or controlled by a correctional facility.” Tex. Penal Code Ann. § 38.11(c). The indictment alleged that Krick took methamphetamine “into the Archer County Jail, a correctional facility,” which tracks the language of section 38.11(b). Id. § 38.11(b). Neither subsection delineates a culpable mental state.

5 mental states of intentionally or knowingly). We now address whether the

evidence supported Krick’s conviction under section 38.11(b), which was the

indicted offense and the offense the trial court included in its charge to the jury.

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979). In determining the sufficiency of the

evidence to show an appellant’s intent, and faced with a record that supports

conflicting inferences, we “must presume—even if it does not affirmatively appear

in the record—that the trier of fact resolved any such conflict in favor of the

prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d

839, 846 (Tex. Crim. App. 1991) (quoting Farris v. State, 819 S.W.2d 490, 495

(Tex. Crim. App. 1990), cert. denied, 503 U.S. 911 (1992), overruled on other

grounds by Riley v. State, 889 S.W.2d 290, 300 (Tex. Crim. App. 1993), cert.

denied, 515 U.S. 1137 (1995)).

We conclude that the jury could have reasonably inferred that Krick

intentionally or knowingly took methamphetamine into the jail. Perron warned

Krick that any contraband should be disclosed before they entered the book-in

area of the jail. Krick “immediately” wanted to go to the restroom with her jacket

on when she got to the book-in area. When she was not allowed to do so, she

refused to take off her jacket. Not only were drugs and scales found in her

6 jacket, a specialized lighter for a “crack pipe” was found rolled up in the

waistband of her pants. These facts were sufficient to infer Krick’s culpable

mental state. See Alvarado v. State, No. 11-10-00262-CR, 2012 WL 3133792, at

*2 (Tex. App.—Eastland July 26, 2012, no pet.) (mem. op., not designated for

publication); cf. Brown v. State, 89 S.W.3d 630, 632–33 (Tex. Crim. App. 2002)

(concluding evidence sufficiently established appellant voluntarily took marijuana

into a jail under sections 6.01(a) and 38.11(b)); Short v. State, 995 S.W.2d 948,

951–52 (Tex. App.—Fort Worth 1999, pet. ref’d) (holding evidence sufficient to

establish appellant’s intent to commit offense under section 38.11(a)). We

overrule Krick’s issue.

During our review of the record, we observed that the written judgment of

conviction contains a clerical error. As did the prefatory information to the

indictment, the judgment lists “PENAL CODE 38.11(d)(1)” as the “Statute for

Offense.”4 As we have discussed, this was incorrect. The jury charge and the

indictment’s “plain and intelligible words” tracked the language found in section

38.11(b). Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009); see also id.

art. 21.11 (West 2009) (providing indictment is sufficiently certain if offense is

charged “in ordinary and concise language”). Although the indictment identified

section 38.11(d)(1) in a prefatory paragraph, this paragraph was not a required

The section entitled “Offense for which Defendant Convicted” showed that 4

Krick was convicted of “PROH SUB CORR FACIL- ALCOHOL/DRUG/PHONE/TOBACCO.”

7 part of the indictment, and the indictment’s plain allegations clearly tracked the

elements provided in penal code section 38.11(b). See id. art. 21.02 (listing

required elements of indictment), art. 21.16 (West 2009) (describing sufficient

form of indictment, which does not include specific penal code section), art. 21.19

(West 2009) (mandating that defect of form of indictment will not affect result of

trial if defect did not prejudice defendant’s substantial rights); Oliver v. State,

692 S.W.2d 712, 714 (Tex. Crim. App. 1985) (holding language of indictment

should be construed in context “by practical rather than by technical

considerations and by reading the indictment as a whole”). Because we have the

authority to modify incorrect judgments when, as here, the necessary information

to do so is available, we modify the trial court’s December 10, 2015 judgment to

reflect that the “Statute for Offense” is “PENAL CODE 38.11(b).”5 See Juarez v.

State, 461 S.W.3d 283, 300–01 (Tex. App.—Texarkana 2015, no pet.); Figueroa

v. State, 250 S.W.3d 490, 518 (Tex. App.—Austin 2008, pet. ref’d), cert. denied,

555 U.S. 1185 (2009). See generally Bigley v. State, 865 S.W.2d 26, 27–28

(Tex. Crim. App. 1993) (discussing appellate courts’ authority to modify

judgments).

As modified, we affirm the trial court’s judgment. See Tex. R. App. P.

43.2(b).

5 Both section 38.11(b) and section 38.11(d)(1) are third-degree felonies. Tex. Penal Code Ann. § 38.11(g).

8 /s/ Lee Gabriel

LEE GABRIEL JUSTICE

PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: July 14, 2016