IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0399-17
KENYETTA DANYELL WALKER, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS ORANGE COUNTY
Newell, J., delivered the opinion for a unanimous Court.
If the jury convicts the defendant of a “non-existent” greater
offense, can a court of appeals reform the judgment to reflect a
conviction for an existent “lesser-included” offense? Yes, if the reformed
offense is authorized by the indictment. In this case, it was. We
therefore remand the case to the court of appeals to determine a)
whether the jury necessarily found each element of the offense of Walker — 2
possession with intent to deliver beyond a reasonable doubt, and b)
whether the evidence was legally sufficient to support the conviction for
that offense.
Facts
Appellant lived in a house that police identified as a “a major
distribution point” for drugs along with her two daughters and a man who
went by the nickname “Pill.”1 On two occasions, a confidential informant
had purchased marijuana and synthetic marijuana at the house.
Additionally, people known to the police had been making short, frequent
stops at the house when Appellant was believed to be present.
One night, three intruders broke into the house through the front
door. A gunfight ensued. One of the intruders escaped the home
unscathed. Another limped away. The final intruder crawled out of the
house to die on the lawn. Police were called out to the scene.
Surveillance cameras around the house showed that after the
shootout, but before the police arrived, Appellant made several trips
outside. First, she carried a bag of more than 400 grams of
dihydrocodeinone pills to an Infiniti parked outside. Then she sprayed
1 “Pill” was identified by nam e as Desrick W arren. Another m an, Brian Gant, som etim es stayed at the house as well. Walker — 3
some Febreze in the air. Finally, she gave a pistol to “Pill” who left the
scene, but not before he hit the dead man on the lawn.
Police arrived to find the dead body lying on the ground outside of
the house and occasional guest, Brian Grant (who had also been shot),
sitting near the porch. A subsequent search of the house uncovered a
large amount of controlled substances and drug paraphernalia. Police
identified what they believed to be cocaine, blue vials of PCP, Xanax, and
codeine cough syrup in a baby bottle. The smell of raw marijuana in one
room was so strong it made the police lieutenant’s eyes water. Police
also recovered digital scales, re-sealable plastic bags, and a drawer full
of small denomination bills. Finally, they recovered the pills from the bag
Appellant had placed in the parked Infiniti.
Charges
The State charged Appellant with engaging in organized criminal
activity by commission of the predicate offense of possession of a
controlled substance. The indictment was later amended to include the
allegation that Appellant had possessed the controlled substance “with
intent to deliver.” Appellant did not object to the indictment or otherwise
argue to the trial court that the indictment was substantively defective for Walker — 4
alleging a non-existent offense.2
The jury charge in this case tracked the language of the indictment.
It instructed the jury to determine whether, beyond a reasonable doubt,
Appellant or another member of a criminal combination possessed 400
grams of dihydrocodeinone, hydrocodone with intent to deliver. It also
instructed the jury that it had to find that Appellant acted as a party to
the offense if it believed one of the other members of the criminal
combination, rather than Appellant, had possessed the controlled
substance with the intent to deliver. The relevant portion of the jury
charge reads as follows:
Application of Law to Facts
Engaging in Organized Criminal Activity
You must decide whether the State has proved, beyond a reasonable doubt the following elements. The elements are that-
1. One or more of the following persons: the defendant KENYETTA DANYELL WALKER or BRIAN G AN T or DESRICK W ARREN, possessed Dihydrocodeinone (Hydrocodone) in Orange County, Texas, on or about December 12, 2014; and
2 This all was prior to this Court’s decision in Hughitt v. State, 583 S.W .3d 623 (Tex. Crim . App. 2019), which held that possession of a controlled substance with intent to deliver is not a valid predicate offense for the crim e of engaging in organized crim inal activity. Walker — 5
2. The Dihydrocodeinone, Hydrocodone was, by aggregate weight, including adulterants or dilutants, 400 grams or more; and
3. Such person knew he/she was possessing a controlled substance; and
4. Such person intended to deliver the controlled substance; and
5. [T]he defendant intended to establish, maintain, or participate in a combination or in the profits of a combination.
If the person you found in #1, 3, and 4 was not the defendant, then the State must prove beyond a reasonable doubt that the defendant acted with intent to promote or assist the commission of the offense; and she aided or attempted to aid the other person to commit the offense.
You must agree on elements listed above.
If you all agree the State has proven each of the elements above, you must find the defendant “guilty” of the offense of Engaging in Organized Criminal Activity, and your deliberations are complete.
If you all agree the State has failed to prove, beyond a reasonable doubt, one more of elements listed above, you must the [sic] consider the lesser included offense of Possession of a Controlled Substance.
The jury charge also contained an instruction on the “lesser” offense of
possession of a controlled substance. The jury convicted Appellant of the
“greater” offense of engaging in organized criminal activity. Walker — 6
Appeal
Appellant raised a challenge to the sufficiency of the evidence to the
court of appeals. She did not argue that the charged offense lacked a
qualifying predicate offense. To its credit, the court of appeals noticed
this issue and requested supplemental briefing on it. In response to the
court of appeals’ request for briefing, Appellant argued that the
indictment was fundamentally defective because it failed to allege an
offense.
The court of appeals recognized that Appellant had waived her
argument about the defect in the indictment, but still reversed the
conviction. The court resolved Appellant’s sufficiency claim by reviewing
the evidence in relation to the jury charge given to the jury rather than
in relation to a hypothetically correct one. Through that lens, the court
held that there was “more than some” evidence that would have enabled
a reasonable jury to conclude beyond a reasonable doubt that Appellant
had committed the offense of engaging in organized criminal activity as
alleged in the indictment.3
Then, the court of appeals addressed “a circumstance unmentioned
3 W alker v. State, 2017 W L 1292006, at *2 (Tex. App.–Am arillo Mar. 30, 2017) (not designated for publication). Walker — 7
by appellant”—the failure to incorporate all the elements of engaging in
the jury instructions.4 Characterizing the issue as “unassigned” jury
charge error, the court considered the effect of the lack of a qualifying
predicate offense for the alleged crime of engaging in organized criminal
activity. The court held that the error in the jury charge—the State’s
failure to incorporate some elements of engaging in organized criminal
activity, but not others—was egregiously harmful and remanded the case
for a new trial.
We granted the State’s petition for discretionary review to answer
the question, “Can a conviction for a charged, but non-existent, offense
be reformed to a subsumed and proven offense that does exist?”
According to the State, the court of appeals erred in its legal sufficiency
analysis because it measured the error against the erroneous jury
instruction instead of the essential elements of the offense. What the
court of appeals should have done, the State argues, is a) hold that the
evidence was legally insufficient to support the conviction for engaging in
criminal activity, and b) reform the conviction to the “lesser-included”
offense of possession of a controlled substance with intent to deliver. In
4 Id. Walker — 8
the State’s view, the court of appeals never should have addressed the
issue as unassigned jury charge error.
Appellant agrees with the State that the intermediate court’s legal
sufficiency analysis was erroneous. According to Appellant, the evidence
was legally insufficient because engaging in criminal activity based upon
possession with intent to deliver is not an offense. However, Appellant
disagrees with the State that the court of appeals should have reformed
the judgment to reflect a conviction for possession of a controlled
substance. Instead, Appellant argues that the only proper remedy is an
acquittal.
Treating the issue in this case as a jury instruction error, just as the
court of appeals did, has intuitive appeal in light of the defects in the
indictment and the jury charge. However, we agree with the State that
we should analyze this as a legal sufficiency issue for a number of
reasons. First, Appellant only raised a sufficiency claim in the court
below. Second, when the issue regarding the lack of a qualifying
predicate was drawn to Appellant’s attention, she argued that the
indictment was fundamentally defective, not that the jury charge was
erroneous. Finally, both parties, in their briefing before this Court, agree
that we are faced with a sufficiency issue, not a jury charge issue. Walker — 9
Consequently, we address whether the court of appeals properly analyzed
Appellant’s sufficiency argument and then decide whether reformation of
the judgment is the appropriate remedy in light of the flaws in the
indictment and jury instruction.
Sufficiency
In assessing the legal sufficiency of the evidence to support a
criminal conviction, reviewing courts must consider the evidence in a light
most favorable to the jury’s verdict.5 Courts must determine whether,
based on that evidence and reasonable inferences therefrom, a rational
juror could have found the essential elements of the crime beyond a
reasonable doubt.6 Each fact need not point directly and independently
to the guilt of a defendant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.7
Reviewing courts must give deference to the responsibility of the trier of
fact to fairly resolve conflicts in testimony, to weigh the evidence, and to
5 Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).
6 Alfaro-Jim enez v. State, 577 S.W .3d 240, 244 (Tex. Crim . App. 2019). See Jackson, 443 U.S. at 314 (“It is axiom atic that a conviction upon a charge not m ade or upon a charge not tried constitutes a denial of due process.”).
7 Hooper v. State, 214 S.W .3d 9, 13 (Tex. Crim . App. 2007) (citing Jackson, 443 U.S. at 318–19). Walker — 10
draw reasonable inferences from basic facts to ultimate facts.8
Importantly, sufficiency review does not rest on how the jury was
instructed.9 Instead, we review whether the evidence supports the
elements of the charged crime.10 Those elements are defined by the
hypothetically correct jury charge.11 The hypothetically correct jury
charge accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.12
Finally, in some cases, sufficiency of the evidence also turns on the
meaning of the statute under which the defendant has been prosecuted.13
8 Jackson, 443 U.S. at 318–19.
9 Ram jattansingh v. State, 548 S.W .3d 540, 546 (Tex. Crim . App. 2018) (citing Mussachio v. United States, 136 S.Ct. 709, 715 (2016)); see also Jackson, 443 U.S. at 318 (“After W inship the critical inquiry on review of the sufficiency of the evidence to support a crim inal conviction m ust be not sim ply to determ ine whether the jury was properly instructed, but to determ ine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.”).
10 Mussachio, 136 S.Ct. at 715.
11 Ram jattansingh, 548 S.W .3d at 546 (quoting Malik v. State, 953 S.W .2d 234, 240 (Tex. Crim . App. 1997)).
12 Id.; see also Alfaro-Jim enez, 577 S.W .3d at 244 (“‘As authorized by the indictm ent’ m eans the statutory elem ents of the offense as m odified by the charging instrum ent.”).
13 Alfaro-Jim enez, 577 S.W.3d at 244 (citing Liverm an v. State, 470 S.W .3d 831, 836 (Tex. Crim . App. 2015)). Walker — 11
We consider whether certain conduct actually constitutes an offense
under the relevant statute.14 In other words, we conduct a statutory
construction analysis de novo.15
As discussed above, the State charged Appellant with engaging in
organized criminal activity based upon the commission of the “predicate”
offense of possession of a controlled substance with intent to deliver.
This meant that the State was required to prove both the existence of a
criminal combination that planned to engage in criminal activities and the
actual commission of at least one listed predicate offense. 16 Here, the
State purported to rely upon a predicate offense listed in Section
71.02(a)(5). This section designates applicable predicate offenses as
follows:
(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, Title 3, Occupations Code.17
The State’s theory was that the offense of possession of a controlled
substance with the intent to deliver was contained within the offense of
14 Id.
15 Id.
16 O’Brien v. State, 544 S.W.3d 376, 392–93 (Tex. Crim . App. 2018).
17 T EX . P ENAL C O D E § 71.02 (a)(5). Walker — 12
delivery of a controlled substance.
We recently held in Hughitt v. State that possession of a controlled
substance with the intent to deliver is not a valid predicate offense for the
greater offense of engaging in organized criminal activity.18 For the State
to rely upon actual delivery of a controlled substance to support the
offense of engaging, it must prove more than possession with the intent
to deliver.19 Conversely, for the State to rely upon possession of a
controlled substance to support the offense of engaging, it must prove
that the possession occurred “through forgery, fraud, misrepresentation,
or deception.” 20
As the court of appeals correctly noted, albeit in the context of its
unassigned jury charge analysis, the essential elements of the offense of
engaging required the State to prove more than possession with the
intent to deliver.21 And the court of appeals was correct that the jury
18 583 S.W .3d at 631.
19 Id. (holding that the words “m anufacture” and “delivery” do not include within their m eaning a reference to the separate offense of possession of a controlled substance with the intent to deliver).
20 T EX . P ENAL C O DE § 71.02(a)(5); Hughitt, 583 S.W .3d at 631 (noting that § 71.02(a)(5) lists possession of a controlled substance “through forgery, fraud, m isrepresentation, or deception” as a valid predicate offense for the greater crim e of engaging in organized crim inal activity).
21 W alker, 2017 W L 1292006, at *2. Walker — 13
charge was erroneous because it failed to include a statutorily designated
predicate offense.22 Yet, in its sufficiency analysis, the court of appeals
measured the sufficiency of the evidence against the erroneous jury
charge rather than a hypothetically correct jury charge.23 Doing so
effectively allowed a conviction on the greater offense in violation of due
process because the State did not prove every element of the offense
beyond a reasonable doubt.24
Measuring the evidence against the hypothetically correct jury
charge, “more than some” evidence existed in the record to enable a
rational jury to find that Appellant was part of a criminal combination and
that Appellant, or a member of the combination, had possessed the
alleged controlled substance in the requisite amount. But the State did
not produce evidence establishing the commission of a qualifying
predicate offense. Even though there was evidence that Appellant, or a
member of the combination, possessed a controlled substance, the State
22 Id. at *3.
23 Id. at *2.
24 Jackson, 443 U.S. at 316 (“W inship presupposes as an essential of the due process guaranteed by the Fourteenth Am endm ent that no person shall be m ade to suffer the onus of a crim inal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every elem ent of the offense.”). Walker — 14
did not prove that the controlled substance had been possessed “through
forgery, fraud, misrepresentation, or deception.” Further, even though
there was evidence that Appellant, or a member of the combination,
possessed a controlled substance with the intent to deliver, there was
insufficient evidence to support a conviction for actual delivery of the
hydrocodone. We agree with both the State and Appellant that without
evidence supporting a qualifying predicate offense authorized by the
indictment, Appellant should have been acquitted of the greater offense
of engaging in organized criminal activity. We reverse the court of
appeals’ holding in this regard.
Reformation
The development of our law regarding reformation to lesser-
included offenses is fairly straightforward. In Bigley v. State, the
defendant was charged with possession of 400 grams or more of
methamphetamine.25 The court of appeals held that the evidence was
insufficient to support the conviction for the greater offense, but it
reformed the conviction to the lesser-included offense of possession of
between 28 and 400 grams of methamphetamine.26 We held that,
25 865 S.W .2d 26 (Tex. Crim . App. 1993).
26 Id. at 27. Walker — 15
pursuant to the Rules of Appellate Procedure, the court of appeals had the
authority to reform the judgment to reflect a conviction for the lesser-
included offense.27
In Collier v. State, Judge Keasler explained in his concurring opinion
that a court of appeals may reform a judgment only to cause it to reflect
the true finding of the fact finder.28 He noted that we had rejected the
idea that reformation was only appropriate to correct clerical errors in
Bigley even though this interpretation seemed to expand the authority for
reformation beyond what had existed under former Article 44.24(b). 29
But he explained that if there were an expansion of authority, that
expansion did not authorize a court of appeals to render a judgment that
was completely unavailable at the time of trial.30 Instead, a court of
appeals may only reform a judgment to reflect the judgment that the trial
court was capable of rendering in light of the jury instructions at trial.31
We later recognized that Judge Keasler’s concurring opinion set out the
27 Id. at 27–28.
28 999 S.W .2d 779, 784 (Tex. Crim . App. 1999) (Keasler, J., concurring).
29 Id.
30 Id.
31 Id. Walker — 16
proper rationale for allowing an appellate court to reform a judgment
after conducting a sufficiency review.32 But in Thornton v. State, we
abandoned the requirement that jury reformation be limited by the jury
instructions at trial.33 We rejected the portion of Collier that tied
reformation to a request for a lesser-included offense instruction when
the evidence was insufficient to support the greater offense.34
Instead, we held that a court of appeals may reform a judgment
after an acquittal of a greater-inclusive offense to a lesser-included
offense if two conditions are met: 1) the jury necessarily found every
element necessary to convict the appellant of the lesser-included offense
when it convicted the appellant of the greater-inclusive offense, and 2)
there is sufficient evidence to support a conviction for that offense.35
These requirements satisfy the due process protections inherent to legal
sufficiency review by preventing arbitrary deprivation of liberty based
upon charges never filed while also ensuring that the State carries its
32 Haynes v. State, 273 S.W .3d 183, 187 (Tex. Crim . App. 2008); see also Bowen v. State, 374 S.W .3d 427, 433 (Tex. Crim . App. 2012) (Price, J., dissenting) (“In Haynes v. State, a solid m ajority of the Court recognized Judge Keasler’s concurring opinion in Collier v. State, as the governing ratio decidendi.”).
33 425 S.W .3d 289, 297 (Tex. Crim . App. 2014).
34 Id.
35 Id. at 299–300. Walker — 17
burden to prove each element of the charged offense beyond a
reasonable doubt.36 Finally, it also serves to give effect to the jury’s
verdict by tying reformation to what the jury necessarily found when it
reached that verdict. 37
But what about when the “greater inclusive” offense is a “non-
existent” offense? This question gets at the heart of the problem in this
case, namely whether reformation is proper when the indictment “fails to
allege a crime within the scope of the engaging in organized criminal
activity statute.”38 Can a court reform to a lesser offense when there is
no greater one?
The confusion in this case seems to echo from our “void judgment”
jurisprudence. Prior to 1985, a defect in the substance of an indictment
was said to be “fundamental error” because such a defect failed to confer
36 See Thom pson v. City of Louisville, 362 U.S. 199, 206 (1960) (“Just as ‘[c]onviction upon a charge not m ade would be sheer denial of due process,' so is it a violation of due process to convict and punish a m an without evidence of his guilt.”); In re W inship, 397 U.S. 358, 363–64 (1970) (the standard of proof beyond a reasonable doubt “plays a vital role in the Am erican schem e of crim inal procedure” because it operates to give “concrete substance” to the presum ption of innocence to ensure against unjust convictions, and to reduce the risk of factual error in a crim inal proceeding); Jackson, 443 U.S. at 309 (the constitutional standard recognized in W inship requires that every elem ent of the offense be proved beyond a reasonable doubt).
37 See Collier, 999 S.W .2d at 784 (Keasler, J., concurring). See, e.g., United States v. Haym ond, 139 S.Ct. 2369, 2376 (2019) (plurality op.) (noting that “A judge’s authority to issue a sentence derives from , and is lim ited by, the jury’s factual findings of crim inal conduct.”).
38 W alker, 2017 W L 1292006, at *2. Walker — 18
jurisdiction upon the trial court, and any conviction had upon that
instrument was therefore void.39 The failure to allege an element of an
offense in the charging instrument was the type of substantive defect that
rendered conviction upon such an indictment void.40
But in 1985, Article V, § 12 was amended so that the mere
presentment of the indictment or information, rather than the substance
of the indictment, confers jurisdiction on the trial court.41 Further, Article
1.14(b) was amended to require an objection to any substantive defects
in the indictment prior to trial or else the complaint is forfeited.42 Based
upon these amendments, we concluded that the requisites of an
indictment are not jurisdictional and stem from statutory law alone.43
We have recognized as a legal principle that an indictment that fails
to allege “the commission of an offense” is not an indictment under the
Texas Constitution.44 And absent an indictment or a valid waiver, a
39 Studer v. State, 799 S.W.2d 263, 267 (Tex. Crim . App. 1990).
40 Id.
41 T EX . C O NST . art. V, § 12; see also Studer, 799 S.W.2d at 265, 268.
42 T EX . C O D E C RIM . P RO C . art. 1.14(b); see also Studer, 799 S.W.2d at 265, 268.
43 Studer, 799 S.W .2d at 272.
44 Duron v. State, 956 S.W .2d 547, 550–51 (Tex. Crim . App. 1997) (holding that an “offense” is charged if the written instrum ent “accuses som eone of a crim e with enough clarity and specificity to identify the penal statute under which the State intends to prosecute”). If the written instrum ent purporting to be an indictm ent does not in fact Walker — 19
district court does not have jurisdiction over a case.45 Presiding Judge
Keller properly demonstrated the standard for determining if an
indictment alleges “the commission of an offense” in her concurring
opinion in Teal v. State.
Duron’s standard for determining when an “offense” is alleged can be understood through the following example. Suppose the purported indictment alleged only the name of the perpetrator and a culpable mental state: e.g. “John Smith intentionally.” Any number of criminal offenses could contain those allegations. Under Duron, this simply would not be enough information to allege an offense.46
Had the indictment in this case been as deficient as the one envisioned
by Presiding Judge Keller then we might characterize the engaging
offense as the State does, as a “non-existent” offense.
But the indictment in this case did allege “the commission of an
offense.” It at least alleged the commission of the offense of possession
of a controlled substance with the intent to deliver.47 The lack of a valid
qualify as an “indictm ent,” then the defendant is exem pted from the usual requirem ent that he object to defects in the indictm ent before the date of trial. Id. at 551.
45 Teal v. State, 230 S.W.3d 172, 174–75 (Tex. Crim . App. 2007). This is what Appellant argued to the court of appeals when asked for supplem ental briefing on the issue of whether the offense of possession with intent to deliver qualifies as a predicate offense for the offense of engaging in organized crim inal activity by com m ission.
46 Id. at 183 (Keller, P.J., concurring). Presiding Judge Keller went on to explain that the indictm ent at issue in Teal was an indictm ent under the Texas Constitution because it at least alleged a m isdem eanor offense. Id.
47 See, e.g., Teal, 238 S.W.3d at 183 (Keller, P.J., concurring); see also O’Brien, 544 S.W .3d at 393 (“W hen the State charges a defendant with engaging by com m ission, it m ust Walker — 20
predicate offense in this case amounted to a substantive defect in the
charging instrument, not the lack of an indictment altogether. Appellant
did not object to this defect prior to trial, so she cannot complain about
it now. And while this substantive defect may have impermissibly
lowered the State’s burden at trial with regard to the greater offense,
conviction for the offense of possession with intent to deliver was still
authorized by the indictment.
Remand
Appellant argues that even if we determine that the court of appeals
can reform the judgment in this case we should nevertheless give the
court of appeals the opportunity to consider whether it satisfies the
necessary conditions for reformation. Appellant asks us to dispose of the
case the way we did initially did in Rabb v. State.48 There, the defendant
had been convicted of tampering with evidence, and the Court held that
the evidence was insufficient to support the conviction.49 We remanded
the case because the court of appeals did not have the benefit of our
decision in Thornton so that the court of appeals, which had not
show at least one com pleted offense.”).
48 Rabb v. State, 434 S.W .3d 613 (Tex. Crim . App. 2014).
49 Id. at 618. Walker — 21
conducted a reformation analysis, could do so.50 We agree with
Appellant.
Though the court of appeals did have the benefit of our decision in
Thornton, we had not previously decided the issue before us in this case.
Further, the court of appeals never conducted a reformation analysis
because it found the evidence to be legally sufficient to support the
offense of engaging in organize criminal activity. Having determined that
reformation is proper when the “lesser included” offense is authorized by
the indictment, the proper course of action is to remand the case for the
court of appeals to consider 1) whether the jury necessarily found all the
elements of that offense beyond a reasonable doubt, and 2) whether the
evidence was legally sufficient to support that offense.
Conclusion
We agree with both Appellant and the State that the evidence was
legally insufficient to support the conviction for engaging in organized
criminal activity. Consequently, we reverse the court of appeals decision
in this regard. We further hold that reformation to possession of a
controlled substance with the intent to deliver is authorized by the
50 Id. Walker — 22
indictment. We remand the case to the court of appeals to determine if
the remaining conditions necessary for reformation are met.
Filed: February 26, 2020
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