Aguilera v. State

• Decision Date: 30 July 2015
• Docket Number: No. 07-13-00280-CR,07-13-00280-CR
• Parties: TERESA AGUILERA, APPELLANT v. THE STATE OF TEXAS, APPELLEE
• Court: Texas Court of Appeals

TERESA AGUILERA, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-13-00280-CR

Court of Appeals Seventh District of Texas at Amarillo

July 30, 2015

On Appeal from the 181st District Court Potter County, Texas

Trial Court No. 65,099-B, Honorable John B. Board, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Through three issues appellant Teresa Aguilera challenges her conviction for possession of four grams or more but less than 200 grams of methamphetamine and the resulting sentence of sixty years' confinement in prison, enhanced.¹ We will modifythe judgment to indicate appellant is not obligated to pay for court-appointed counsel and, as modified, affirm the judgment.

Background

Appellant was a passenger in a vehicle stopped by police for a traffic violation. A warrants check revealed outstanding warrants against the driver and he was arrested. He possessed two pocket knives.

An officer spoke with appellant at the passenger side of the vehicle. She appeared "very fidgety, nervous." She stepped out of the vehicle and officers conducted a consensual search of the vehicle and her pockets. A records check revealed an outstanding warrant against appellant and she was arrested. When warned of the consequences of bringing contraband into the county jail, appellant became "visibly upset and started to cry." She told officers she wished to surrender contraband outside the sight of the driver because she was afraid of him and did not want him to see her deliver it to officers. Officers accommodated her request and appellant retrieved a cigarette pack hidden in her clothing. The package contained a marijuana pipe, "raw marijuana" and burnt residue, and baggies containing a total of 4.11 grams of methamphetamine.

According to appellant, when police executed the traffic stop the driver stuck a knife "right there in the same place I have a previous mark right there."² Appellant continued, the driver "bumped me with his elbow and . . . threw the pack of cigarettes and something on me and everything. I didn't want to do it." She concealed thepackage in her clothing. She tried to exit the vehicle but appellant grabbed her "and just pulled [her] back real ugly."

Earlier in the evening appellant smoked methamphetamine provided by the driver. Appellant denied knowingly or intentionally possessing the methamphetamine found in the cigarette pack but seemed to admit such knowledge on cross-examination. She testified the driver is a member of the Texas Syndicate gang, a claim he denied. The officers to whom appellant surrendered the contraband and who transported her to jail testified she did not mention the driver's threat. The driver testified he did not threaten appellant or possess the methamphetamine found on appellant in the cigarette pack.

The evidence showed appellant and the driver had prior convictions, appellant for marijuana possession, assault, driving while intoxicated, bail jumping, injury to a child, theft, and possession of the marijuana pipe found in the cigarette pack. The driver was previously convicted of evading arrest, forgery, burglary, organized crime, criminal mischief, and failure to give identification as a fugitive. He denied drug dealing but admitted smoking methamphetamine and marijuana.

Appellant agreed that occasionally she believes herself unable to differentiate reality from dreaming. She acknowledged she had claimed her bail bondsman sexually molested her and pointed a gun at her. In the State's rebuttal, the bondsman denied appellant's claim.

The State's rebuttal evidence showed that, in events after the charged offense, appellant was convicted for misdemeanor possession of marijuana, possessedmarijuana when arrested by a bondsman for bond forfeiture, and at a traffic stop produced marijuana concealed in her clothing.

Without objection, the charge contained the full statutory definitions of the mental states intentionally and knowingly, as follows:

A person acts intentionally, or with intent, with respect to the nature of her conduct or to a result of her conduct when it is her conscious objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of her conduct or to circumstances surrounding her conduct when she is aware of the nature of her conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of her conduct when she is aware that her conduct is reasonably certain to cause the result.

The application paragraph stated:

Now bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about 8th day of March, 2012, in Potter County, Texas, the defendant, TERESA AGUILERA, did then and there intentionally or knowingly possess a controlled substance, namely, methamphetamine, in an amount of four grams or more but less than two hundred grams then you will find the defendant guilty of possession of a controlled substance, as charged in the indictment and say so by your verdict.

Based on her claim of duress, appellant argued her conduct was justified. The trial court, accordingly, submitted instructions and an application paragraph regarding the defense of duress.

Appellant was convicted and after the punishment phase the court imposed the sentence noted.

Analysis

Appellant's first two issues concern asserted error in the court's charge. In her first issue she asserts:

Possession of a controlled substance is both a "nature of conduct" and "circumstances surrounding the conduct" offense. The appellant raised a defense of duress-that she possessed the substance as a result of being physically threatened with a knife to her neck. But the jury charge permitted a guilty verdict based solely on the result of her conduct-that if the result was possession, guilt was a proper verdict. Did the charge cause egregious harm?

Appellant elaborates that even if jurors were not convinced of her justification defense, the supporting testimony nevertheless should have caused them to question her culpability given the circumstances surrounding her possession of the methamphetamine. But, appellant continues, the charge "effectively negated" this evidence by permitting a guilty verdict based solely on the result of her conduct, that is, possession of methamphetamine.

"[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court." Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). We first consider then whether the trial court committed charge error as appellant asserts. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Should we find error, we then determine whether appellant was harmed to a degree warranting reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).

Health and Safety Code section 481.115(a) provides, "Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionallypossesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice." TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (West 2010).

The element of an offense means the forbidden conduct, any required result, the required culpability, and negation of any exception to the offense. TEX. PENAL CODE ANN. § 1.07(a)(22) (West Supp. 2014). The culpable mental states specified by the Penal Code apply to three possible conduct elements of an offense; that is, the nature of the conduct, the result of the conduct, and the circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03 (West 2011); Robinson v. State, No. PD-0421-14, 2015 Tex. Crim. App. LEXIS 763, at *7 (Tex. Crim. App. July 1, 2015); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989); Alvarado v. State, 704 S.W.2d 36, 38 (Tex. Crim. App. 1985). When an offense specifically delineates the type of conduct, the trial court should limit the statutory definitions in the jury charge to the culpable mental state required. Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994); Murray v. State, 804 S.W.2d 279, 281 (Tex. App.—Fort Worth 1991, pet. refused); 43 George E. Dix & John M. Schmolesky, TEXAS PRACTICE SERIES: CRIMINAL PRACTICE & PROCEDURE § 43:7 (3d ed. 2011). Appellant argues the court erred by including in the charge definitions of the terms intentionally and knowingly that referred to a result of conduct.

Our courts have not placed the offense of possession of a controlled substance within a single category as a nature-, result- or circumstances-oriented offense.³ See Harris v. State, No. 02-12-00091-CR, 2014 Tex. App. LEXIS 3930, at *6-8 (Tex. App.—Fort Worth Apr. 10, 2014, pet. refused) (mem. op., not designated for publication) (noting possession of controlled substance not clearly categorized "as either result or conduct oriented"); Garcia v. State, 790 S.W.2d 22, 25 (Tex. App.—San Antonio 1990) ("The mens rea requirement of a possessory offense is knowledge by a defendant that his conduct or the circumstances surrounding his conduct constitutes possession of a controlled substance"), abated, 840 S.W.2d 957 (Tex. Crim. App. 1992) (en banc, per curiam) (prior opinions withdrawn and appeal permanently abated on death of appellant). See generally Huffman v. State, 267 S.W.3d 902, 905-07 (Tex. Crim. App. 2008) (describing categorization analyses). If an offense defies uniform categorization, a trial court does not err by submitting a charge containing the complete statutory definitions of the applicable culpable mental states because the statutory definitions allow the jury to consider either the result or the nature of the defendant's conduct. See Harris, 2014 Tex. App. LEXIS 3930, at *8; Murray, 804 S.W.2d at 281 (citing Saldivar v. State, 783 S.W.2d 265, 267-68 (Tex. App.—Corpus Christi 1...