IN THE TENTH COURT OF APPEALS
No. 10-10-00158-CR
RAYMOND MORRIS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2009-1288-C1
MEMORANDUM OPINION
Raymond Morris was convicted of the offense of taking a controlled substance
into a correctional facility. TEX. PEN. CODE ANN. § 38.11(b) (Vernon 2003). Morris was
sentenced to forty (40) years’ imprisonment. Morris complains that the evidence was
legally insufficient to prove that he was not delivering the methamphetamine to the
jail’s warehouse, pharmacy, or physician and that the evidence was legally insufficient
for the trial court to have assessed attorney’s fees and investigator’s fees against him.
Because we find that the evidence was sufficient to sustain the conviction, but that the
evidence was insufficient to sustain the assessment of attorney’s fees and investigator’s fees, we modify the judgment to delete the assessment of attorney’s fees and
investigator’s fees. As modified, we affirm the judgment.
Legal Sufficiency
Morris complains that the evidence was legally insufficient to sustain his
conviction because there was no evidence that he was not delivering the drugs to the
jail’s warehouse, pharmacy, or physician. Morris contends that the State bore the
burden of proof to establish the non-existence of those factors as exceptions pursuant to
section 2.02 of the Penal Code and because the State did not, the evidence was legally
insufficient. See TEX. PEN. CODE ANN. § 2.02 (Vernon 2003).
Standard of Review
The Court of Criminal Appeals has determined that there is now only one
standard for determining the sufficiency of the evidence, which is the standard as set
forth in Jackson v. Virginia. Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS
1240 (Tex. Crim. App. Oct. 6, 2010) (plurality op.). In reviewing the sufficiency of the
evidence to support a conviction, we view all of the evidence in the light most favorable
to the prosecution in order 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, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
The Offense
Effective September 1, 2009, the Legislature amended section 38.11 of the Penal
Code and created affirmative defenses to the offense regarding delivery of the
Morris v. State Page 2 controlled substance to the warehouse, pharmacy, or physician. Acts 1991, 72nd Leg.,
2nd C.S., ch. 10, § 5.01, amended by Acts 2009, 81st Leg., ch. 1169, § 1, effective Sept. 1,
2009. However, the offense in the instant case occurred on August 1, 2009, so we will
use the section as of that date. Section 38.11(c) of the Penal Code stated that it was an
offense to “take … a controlled substance … into a correctional facility … except for
delivery to a facility warehouse, pharmacy, or physician.” Acts 1991, 72nd Leg., 2nd
C.S., ch. 10, § 5.01 (amended 2009).
Morris argues that “except for delivery to a facility warehouse, pharmacy, or
physician” constitutes an exception pursuant to section 2.02 of the Penal Code. As such,
the State was required to negate the existence of the exceptions beyond a reasonable
doubt. TEX. PEN. CODE ANN. § 2.02(b) (Vernon 2003). Section 2.02(a) states that: “An
exception to an offense in this code is so labeled by the phrase: ‘It is an exception to the
application of ….’” Morris contends that although the language of section 38.11(b) does
not contain this specific language, the Legislature’s use of the word “except,” taken with
the amending of section 38.11 by deleting “except for delivery to a facility warehouse,
pharmacy, or physician” from subsection (b) and adding subsection (e), which makes
the delivery of a controlled substance to a jail’s warehouse, pharmacy, or physician an
affirmative defense, demonstrates that prior to the amendment these factors were an
exception.
The State contends that because the specific language to create an exception
required by section 2.02(a) was not used in section 38.11(b), the issue of whether taking
the controlled substance into the jail was for the purpose of delivery to a warehouse,
Morris v. State Page 3 pharmacy, or physician constitutes a defense to the statute rather than an exception. As
such, the State did not have the burden to negate the existence of those issues and they
were not submitted to the jury because there was no evidence of those as a defense.
TEX. PEN. CODE ANN. § 2.03(b) & (c) (Vernon 2003). We agree. If the language of the
statute in question is not plainly labeled as required by section 2.02, the matter is treated
as a “defense” and the provision need not be negated by the State. See TEX. PEN. CODE
ANN. §§ 2.02 & 2.03(e); see Borkowicz v. State, 802 S.W.2d 115, 117 (Tex. App.—Texarkana
1990, no pet.).
The Facts
Morris was arrested and brought to the jail for possession of drugs. He was strip
searched when he was brought into the jail. After Morris was searched, an officer
located a cigarette carton containing methamphetamine in the cell that he had occupied.
The carton was not present prior to Morris being placed in the cell and was found after
he was removed. There is no dispute that no evidence was presented regarding
whether Morris was delivering the methamphetamine to a facility warehouse,
pharmacy, or physician.
Analysis
It was not the State’s burden to negate the defenses contained in section 38.11(b).
Because there was no evidence that Morris was taking the methamphetamine into the
jail in order to deliver it to a warehouse, pharmacy, or physician, the evidence was
sufficient for the jury to have found Morris guilty of the charged offense. We overrule
issue one.
Morris v. State Page 4 Attorney’s Fees and Investigator’s Fees
Morris complains in his second issue that the evidence was insufficient to
require him to repay his court-appointed attorney’s fees and investigator’s fees as court
costs. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (Vernon Supp. 2010). In order to
assess attorney’s fees and investigator’s fees as court costs, the trial court was required
to determine that Morris had financial resources that would enable him to offset in part
or in whole the costs of legal services provided. TEX. CODE CRIM. PROC. ANN. art.
26.05(g) (Vernon Supp. 2010).
The clerk’s record reflects the trial court found Morris was indigent and unable
to afford the cost of legal representation and investigation before trial. Although there
was no new evidence regarding his indigence, Morris was appointed an attorney for
purposes of appeal after his conviction. Once Morris was initially found to be indigent,
he was presumed to remain indigent for the remainder of the proceedings unless it was
shown that a material change in his financial resources had occurred. TEX. CODE CRIM.
PROC. ANN. art. 26.04(p) (Vernon Supp. 2010). Furthermore, the record must reflect
some factual basis to support the determination that Morris was capable of paying all or
some of his attorney’s fees and investigator’s fees at the time of the judgment. Barrera v.
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IN THE TENTH COURT OF APPEALS
No. 10-10-00158-CR
RAYMOND MORRIS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2009-1288-C1
MEMORANDUM OPINION
Raymond Morris was convicted of the offense of taking a controlled substance
into a correctional facility. TEX. PEN. CODE ANN. § 38.11(b) (Vernon 2003). Morris was
sentenced to forty (40) years’ imprisonment. Morris complains that the evidence was
legally insufficient to prove that he was not delivering the methamphetamine to the
jail’s warehouse, pharmacy, or physician and that the evidence was legally insufficient
for the trial court to have assessed attorney’s fees and investigator’s fees against him.
Because we find that the evidence was sufficient to sustain the conviction, but that the
evidence was insufficient to sustain the assessment of attorney’s fees and investigator’s fees, we modify the judgment to delete the assessment of attorney’s fees and
investigator’s fees. As modified, we affirm the judgment.
Legal Sufficiency
Morris complains that the evidence was legally insufficient to sustain his
conviction because there was no evidence that he was not delivering the drugs to the
jail’s warehouse, pharmacy, or physician. Morris contends that the State bore the
burden of proof to establish the non-existence of those factors as exceptions pursuant to
section 2.02 of the Penal Code and because the State did not, the evidence was legally
insufficient. See TEX. PEN. CODE ANN. § 2.02 (Vernon 2003).
Standard of Review
The Court of Criminal Appeals has determined that there is now only one
standard for determining the sufficiency of the evidence, which is the standard as set
forth in Jackson v. Virginia. Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS
1240 (Tex. Crim. App. Oct. 6, 2010) (plurality op.). In reviewing the sufficiency of the
evidence to support a conviction, we view all of the evidence in the light most favorable
to the prosecution in order 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, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
The Offense
Effective September 1, 2009, the Legislature amended section 38.11 of the Penal
Code and created affirmative defenses to the offense regarding delivery of the
Morris v. State Page 2 controlled substance to the warehouse, pharmacy, or physician. Acts 1991, 72nd Leg.,
2nd C.S., ch. 10, § 5.01, amended by Acts 2009, 81st Leg., ch. 1169, § 1, effective Sept. 1,
2009. However, the offense in the instant case occurred on August 1, 2009, so we will
use the section as of that date. Section 38.11(c) of the Penal Code stated that it was an
offense to “take … a controlled substance … into a correctional facility … except for
delivery to a facility warehouse, pharmacy, or physician.” Acts 1991, 72nd Leg., 2nd
C.S., ch. 10, § 5.01 (amended 2009).
Morris argues that “except for delivery to a facility warehouse, pharmacy, or
physician” constitutes an exception pursuant to section 2.02 of the Penal Code. As such,
the State was required to negate the existence of the exceptions beyond a reasonable
doubt. TEX. PEN. CODE ANN. § 2.02(b) (Vernon 2003). Section 2.02(a) states that: “An
exception to an offense in this code is so labeled by the phrase: ‘It is an exception to the
application of ….’” Morris contends that although the language of section 38.11(b) does
not contain this specific language, the Legislature’s use of the word “except,” taken with
the amending of section 38.11 by deleting “except for delivery to a facility warehouse,
pharmacy, or physician” from subsection (b) and adding subsection (e), which makes
the delivery of a controlled substance to a jail’s warehouse, pharmacy, or physician an
affirmative defense, demonstrates that prior to the amendment these factors were an
exception.
The State contends that because the specific language to create an exception
required by section 2.02(a) was not used in section 38.11(b), the issue of whether taking
the controlled substance into the jail was for the purpose of delivery to a warehouse,
Morris v. State Page 3 pharmacy, or physician constitutes a defense to the statute rather than an exception. As
such, the State did not have the burden to negate the existence of those issues and they
were not submitted to the jury because there was no evidence of those as a defense.
TEX. PEN. CODE ANN. § 2.03(b) & (c) (Vernon 2003). We agree. If the language of the
statute in question is not plainly labeled as required by section 2.02, the matter is treated
as a “defense” and the provision need not be negated by the State. See TEX. PEN. CODE
ANN. §§ 2.02 & 2.03(e); see Borkowicz v. State, 802 S.W.2d 115, 117 (Tex. App.—Texarkana
1990, no pet.).
The Facts
Morris was arrested and brought to the jail for possession of drugs. He was strip
searched when he was brought into the jail. After Morris was searched, an officer
located a cigarette carton containing methamphetamine in the cell that he had occupied.
The carton was not present prior to Morris being placed in the cell and was found after
he was removed. There is no dispute that no evidence was presented regarding
whether Morris was delivering the methamphetamine to a facility warehouse,
pharmacy, or physician.
Analysis
It was not the State’s burden to negate the defenses contained in section 38.11(b).
Because there was no evidence that Morris was taking the methamphetamine into the
jail in order to deliver it to a warehouse, pharmacy, or physician, the evidence was
sufficient for the jury to have found Morris guilty of the charged offense. We overrule
issue one.
Morris v. State Page 4 Attorney’s Fees and Investigator’s Fees
Morris complains in his second issue that the evidence was insufficient to
require him to repay his court-appointed attorney’s fees and investigator’s fees as court
costs. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (Vernon Supp. 2010). In order to
assess attorney’s fees and investigator’s fees as court costs, the trial court was required
to determine that Morris had financial resources that would enable him to offset in part
or in whole the costs of legal services provided. TEX. CODE CRIM. PROC. ANN. art.
26.05(g) (Vernon Supp. 2010).
The clerk’s record reflects the trial court found Morris was indigent and unable
to afford the cost of legal representation and investigation before trial. Although there
was no new evidence regarding his indigence, Morris was appointed an attorney for
purposes of appeal after his conviction. Once Morris was initially found to be indigent,
he was presumed to remain indigent for the remainder of the proceedings unless it was
shown that a material change in his financial resources had occurred. TEX. CODE CRIM.
PROC. ANN. art. 26.04(p) (Vernon Supp. 2010). Furthermore, the record must reflect
some factual basis to support the determination that Morris was capable of paying all or
some of his attorney’s fees and investigator’s fees at the time of the judgment. Barrera v.
State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.).
It is undisputed that the State did not present any evidence that Morris had
financial resources that enable him to pay all or any part of the fees paid his court-
appointed counsel or his court-appointed investigator. Further, the trial court did not
make any fact-findings or otherwise address Morris’s financial condition before
Morris v. State Page 5 ordering him to pay the attorney’s fees and the investigator’s fees. Therefore, we
conclude that the evidence was insufficient for the trial court to order Morris to pay his
attorney’s fees and investigator’s fees. See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.
Crim. App. 2010).
The State argues that the trial court’s determination should be reviewed under an
abuse of discretion standard, and if determined to be an abuse of discretion, the issue of
attorney’s fees should be remanded to the trial court for the presentation of evidence.
However, in Mayer the Court of Criminal Appeals stated that remand for the
production of evidence is not appropriate when the evidence was legally insufficient
regarding the ability to pay attorney’s fees. Mayer, 309 S.W.3d at 557. Therefore, when
the evidence does not support an order to pay attorney’s fees and investigator’s fees,
the proper remedy is to delete the order. Mayer, 309 S.W.3d at 557. Accordingly, we
modify the judgment to delete the order to pay the attorney’s fees and the investigator’s
fees. We sustain issue two.
Conclusion
We find that the evidence was sufficient to sustain Morris’s conviction. We find
that the evidence was insufficient regarding the order for attorney’s fees and
investigator’s fees. Therefore, we modify the judgment of the trial court to delete the
assessment of $1,740.00 for attorney’s fees and $1,098.49 for investigator’s fees. As
modified, we affirm the judgment of the trial court.
TOM GRAY Chief Justice
Morris v. State Page 6 Before Chief Justice Gray, Justice Davis, and Judge Scoggins1 Modified, and as Modified, Affirmed Opinion delivered and filed December 8, 2010 Do not publish [CRPM]
1 The Honorable Al Scoggins, Judge of the 378th District Court of Ellis County, sitting by assignment of the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the Government Code. See TEX. GOV’T CODE ANN. § 74.003(h) (Vernon 2005).
Morris v. State Page 7