Rodriguez v. State

879 S.W.2d 283, 1994 Tex. App. LEXIS 1365, 1994 WL 245556

Opinions

MAJORITY OPINION

MURPHY, Justice.

Appellant entered a plea of not guilty before the court to the offense of delivery by offer to sell a controlled substance, namely cocaine, weighing at least 400 grams. Tex Health & Safety Code Ann. § 481.112 (Vernon 1992). He was convicted, and the judge assessed punishment at imprisonment for 15 years in the Institutional Division of the Texas Department of Criminal Justice and a $3000.00 fine. Appellant contends there is insufficient evidence to support his conviction for delivery of a controlled, substance, and that he should have been indicted for the more specific offense of delivery of a simulated controlled substance. See Tex. Health & Safety Code Ann. § 482.002 (Vernon 1992). We agree and reverse the judgment.

On August 18, 1991, Julio Ayala told undercover Agent Jack Schumacher that he and several other individuals would sell Schu-macher 20 kilograms of cocaine for $310,000. The next day, Schumacher met with Ayala and Gerardo Escamilla at Escamilla’s office, where the two men told Schumacher that their “Colombian” source would arrive at the office soon. When appellant arrived, Schu-macher was told by Ayala and Escamilla that appellant had the cocaine and Schumacher should go with him to his car and bring the money. At the car, appellant asked to see the money and Schumacher complied with his request. Appellant then allowed Schu-macher to look into a black bag which contained numerous brick-shaped packages wrapped in a manner commonly employed to wrap and carry kilos of cocaine. At that point, Schumacher signalled the arrest team, who arrested appellant, Ayala, and Escamil-la. When the substance contained in the packages was analyzed, it was not a controlled substance, but was in fact over 400 grams of flour.

Appellant was indicted and convicted under TexHealth & Safety Code Ann. § 481.-112, which reads in pertinent part:

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally ... delivers, or possess with intent to ... deliver a controlled substance listed in Penalty Group 1.

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(c) A person commits an aggravated offense if the person commits an offense under Subsection (a) and the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 28 grams or more.

(d) An offense under Subsection (c) is:

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(3) punishable by confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

The Simulated Controlled Substances Act, TexHealth & Safety Code Ann. § 482.002 (Vernon 1992), provides:

(a) A person commits an offense if the person knowingly or intentionally ... delivers a simulated controlled substance and the person:

(1) expressly represents the substance to be a controlled substance;

.(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance; or

(3) states to the person receiving or intended to receive the simulated controlled substance that the person may successfully represent the substance to be a controlled substance to a third party.

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(d) An offense under this section is a felony of the third degree.

The punishment for a third degree felony is confinement in the Institutional Division of the Texas Department of Criminal Justice for two to ten years or confinement in a community correctional facility for not more than one year, and a fine up to $10,000. TexPenal Code Ann. § 12.34 (Vernon Supp. 1994).

The Court of Criminal Appeals has consistently held that where a general statute and a specific statute complete within itself both proscribe a defendant’s conduct, he should be charged under the more specific statute. Cheney v. State, 755 S.W.2d 123, 127 (Tex.Crim.App.1988); Williams v. State, 641 S.W.2d 236, 238 (Tex.Crim.App.1982). This rule is based on the in pari materia rule of statutory construction, which provides that if two statutes deal with the same general subject, have the same general purpose, or relate to the same person or class of persons, they are considered in pari materia and should, wherever possible, be construed together and any conflicts harmonized. Cheney, 755 S.W.2d at 126. Another way of stating this rule is where one statute broadly defines an offense, and a second more narrowly describes another offense, complete within itself, which proscribes conduct that would otherwise meet every element of the broader provision, the statutes are in pari materia. Mills v. State, 722 S.W.2d 411, 414 (Tex.Crim.App.1986). If there are irreconcilable conflicts between statutes as to elements of proof or penalties for the same conduct, then the more specific statute controls. Cheney, 755 S.W.2d at 127; Williams, 641 S.W.2d at 239.

In this case, appellant was charged with delivery of a controlled substance by offer to sell. See Tex.Health & Safety Code Ann. § 481.002(8) (Vernon 1992) (defining “deliver” to include offering to sell a controlled substance). In order to establish delivery by offer to sell, proof of such an offer must be corroborated by evidence other than a statement of the offeree, in this ease Agent Schumacher. Tex.Health & Safety Code Ann. § 481.183(a) (Vernon 1992). This proof was available against appellant, because the police recorded all of the conversations Schu-macher had with appellant, Ayala, and Es-camilla. Therefore, appellant was subject to conviction under Section 481.112 for offering to sell a controlled substance.

Section 482.002 applies to delivery of a simulated controlled substance, defined as a substance purported to be a controlled substance that is chemically different than the substance it is purported to be. Tex.Health & Safety Code Ann. § 482.001(4) (Vernon 1992). “Delivery” under Section 482.002 also includes offering to sell a simulated controlled substance. Appellant expressly represented the substance he was delivering to be a controlled substance, cocaine, and also represented that the substance was cocaine by the manner in which it was packaged. He then delivered flour, a substance that is chemically different from cocaine. Thus, he was also subject to conviction under Section 482.002.

Because appellant was subject to conviction under two statutes which carry differing penalties but deal with the same prohibited conduct, offer to sell a controlled substance, we find the two statutes are in pari materia. Our next analysis should ascertain whether one statute more specifically proscribes the particular conduct in which appellant engaged. Cheney, 755 S.W.2d at 127. We find that Section 482.002 more specifically describes appellant’s conduct, because his actions, as discussed above, precisely conform with the description of the offense proscribed by Section 482.002.

The ease before us is analogous to Garza v. State, 687 S.W.2d 325 (Tex.Crim.App.1985). In Garza, the defendant, the County Treasurer of Maverick County, argued that he should have been prosecuted for official misconduct rather than theft, after he diverted $84,000 in county funds. The official misconduct statute proscribes taking or misapplying anything of value belonging to the government, while the theft statute specifically includes money in the definition of stolen property, and also varies the punishment based on the amount of money stolen. The court found that although the defendant could have been prosecuted under either statute, the misappropriation of funds was “covered by the theft chapter with much greater precision.” Garza, 687 S.W.2d at 331 (emphasis added). See also Williams v. State, 641 S.W.2d 236 (Tex.Crim.App.1982) (finding prosecution under theft statute improper when offense of hindering a secured creditor was the more specific statute); Ex parte Holbrook, 606 S.W.2d 925 (Tex.Crim.App.1980) (stating statute dealing with possession of a forged driver’s license controls over the general forgery statute); and Jones v. State, 552 S.W.2d 836 (Tex.Crim.App.1977) (holding appellant should have been charged with welfare fraud instead of under more general theft statute).

The State cites Stewart v. State, 718 S.W.2d 286 (Tex.Crim.App.1986), for the proposition that an individual need not deliver any controlled substance at all to be found guilty of the offense of delivery of a controlled substance by offer to sell.¹ Stewart holds that the offense of delivery by offer to sell a controlled substance is complete when the person offers to sell what he represents to be a controlled substance. We agree, and also agree that appellant was subject to prosecution for delivery of a controlled substance. But that is not the question before us. Rather, we are faced with the question of when a person is subject to prosecution under two statutes, whether the statutes conflict, and if so, whether one more specifically applies to the prohibited conduct at issue.

When Stewart was decided, the legislature had not yet enacted Section 482.002, and the only statute then available to the State for prosecution of delivery of a substance purporting to be a controlled substance was the statute prohibiting delivery of a controlled substance by offer to sell. The legislature is never presumed to do a useless act. Childress v. State, 784 S.W.2d 361, 364 (Tex.Crim.App.1990); Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex.1981). In enacting a statute, it is presumed that the entire statute is intended to be effective, and a just and reasonable result is intended. Tex.Gov’t Code Ann. § 311.021(2), (3) (Vernon 1988). From the wording of Section 482.002, we presume the legislature intended to prohibit the precise conduct in which appellant engaged, and that it made a determination that this behavior constituted a lesser harm to society than delivery of an actual controlled substance, because the offense of delivery of a simulated controlled substance carries a lesser range of punishment.

In this case, although appellant could have been convicted under either statute, we find that Section 482.002 covers his actions with much greater precision than Section 481.112. Since there are conflicts between the statutes as to elements of proof and penalty provisions, the statutes are in pari materia and appellant should have been charged with the more specific offense of delivery of a simulated controlled substance. Williams, 641 S.W.2d at 239.

We reverse the judgment of the trial court and remand with instructions that the indictment be dismissed.

Footnotes

1

. Appellant also cites Vivanco v. State, 825 S.W.2d 187 (Tex.App.—Houston [14th Dist.] 1992, pet. ref'd). We find Vivanco distinguishable from the case before us. In Vivanco, the defendant delivered 6.48 grams of cocaine along with a large quantity of flour. Therefore, he actually delivered a controlled substance plus adulterants and dilutants, not simply a simulated controlled substance, and he was not liable for prosecution under Section 482.002.