Bigley v. State

• Decision Date: 16 June 1993
• Docket Number: No. 939-92,939-92
• Citation: 865 S.W.2d 26
• Parties: Ervin Allen BIGLEY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 26

865 S.W.2d 26

Ervin Allen BIGLEY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 939-92.

Court of Criminal Appeals of Texas En Banc.

June 16, 1993.

Rehearing Denied Nov. 17, 1993.

Stephen M. Orr, Austin, for appellant.

Charles D. Penick, Dist. Atty., and John M. Hawkins, Asst. Dist. Atty., Bastrop, Robert Huttash, State's Atty., and Matthew W. Paul, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

A jury convicted appellant of possession of 400 grams or more of methamphetamine and assessed punishment, enhanced by proof of one prior felony conviction, at ninety-nine years confinement and a $250,000 fine. On appeal, appellant argued that the evidence was insufficient to prove that the amount of the methamphetamine he possessed weighed at least 400 grams. The court of appeals agreed. Bigley v. State, 831 S.W.2d 409 (Tex.App.--Austin 1992) (opinion on rehearing).

In reliance on this Court's decisions in McGlothlin, Reeves, and Engelking, ¹ the court of appeals held that the State had failed to prove that the substances with which the methamphetamine was mixed had been added with the intent to increase the bulk of the final product. Therefore, the court of appeals held that the State had failed to prove that the controlled substance, including adulterants and dilutants, weighed at least 400 grams. Bigley, 831 S.W.2d at 412.

The court of appeals also held, however, that there was ample evidence of appellant's guilt of the lesser-included offense of possession of 28 grams or more but less than 400 grams of methamphetamine because the State proved that appellant possessed 388.76 grams of pure methamphetamine. Since the jury had been instructed on the lesser-included offense of possession of 28 grams or more of methamphetamine, the court of appeals held that by finding appellant guilty of possession of at least 400 grams of methamphetamine, the jury had also necessarily found that appellant possessed at least 28 grams of methamphetamine. The court of appeals relied on Texas Rule of Appellate Procedure 80 ² (hereinafter "rule 80") to reform the judgment to reflect a conviction for possession of 28 grams or more, but less than 400 grams of methamphetamine. The judgment of conviction, as reformed, was affirmed as to the adjudication of guilt, but remanded for a new trial as to punishment.

We granted appellant's petition for discretionary review to determine whether the court of appeals had the authority to reform the judgment to reflect a conviction for the lesser-included offense. Appellant asserts that the court of appeals' application of Rule 80 is in conflict with this Court's construction of the rule in Urbano v. State, 837 S.W.2d 114 (Tex.Cr.App.1992).

While Urbano did involve Rule 80, that decision is not dispositive of the issue confronting us in this case. Urbano was a capital murder prosecution in which this Court found the evidence insufficient to prove the aggravating element of remuneration. 837 S.W.2d at 117. The State sought to have this Court reform the judgment of conviction to reflect a conviction for the lesser-included offense of murder because the evidence was sufficient to prove the offense of murder. This Court declined the State's invitation upon observing that "this Court does not have the authority to reform a conviction of a greater felony found to be based on insufficient evidence to [a] lesser felony, which the evidence will support." Id., citing Stephens v. State, 806 S.W.2d 812, 818, fn. 8 (Tex.Cr.App.1990) (Emphasis added).

The fact that we have interpreted Rule 80 in such a manner as to preclude this Court from having the power to reform judgments, however, does not mean that an intermediate court of appeals is also denied the power to reform judgments. Indeed, Rule 80 specifically states that "[t]he court of appeals may: ... (2) modify the judgment of the court below by correcting or reforming it, ..." Tex.R.App.Proc. 80 (Emphasis added). Appellant, citing Asberry v. State, 813 S.W.2d 526 (Tex.App.--Dallas 1991, pet. ref'd), argues that "errors of a clerical nature may be corrected, [but] reformation involving the judicial reasoning of the district court is not authorized." Nothing in the text of Rule 80, however, so limits the power of the court of appeals to reform a judgment of the court below. Therefore, we refuse to limit the authority of the courts of appeals to reform judgments to only those situations involving mistakes of a clerical nature.

In this case, the court of appeals reformed the judgment to reflect that appellant had been convicted of the lesser included offense of possession of an amount of methamphetamine greater than 28 grams and less than 400 grams. Sam Bivone's testimony in support of the State's case established that the unadulterated methamphetamine possessed by appellant weighed 388.76 grams. Since we have concluded that Rule 80 empowers the courts of appeals to reform judgments, we find that the court of appeals acted properly in reforming the judgment to reflect that appellant was guilty of possessing more than 28 grams of methamphetamine based on Bivone's testimony.

The judgment of the court of appeals is AFFIRMED.

BAIRD, Judge, concurring.

Based upon the controlling authority from this Court, the Court of Appeals correctly held the evidence was insufficient to support a finding that appellant possessed methamphetamine in an aggregate weight of over 400 grams. Bigley v. State, 831 S.W.2d 409, 412 (Tex.App.--Austin 1992). And, the Court of Appeals correctly held that, under Tex.R.App.P. 80(b), it had the authority to reform the judgment to reflect a conviction for possession of more than twenty-eight but less than 400 grams of methamphetamine. Id. at 415. However, I am writing separately to express my belief that the Court of Appeals was authorized to reform the judgment because the jury had been instructed on the lesser offense.

I.

As the Court of Appeals noted, in Garrett v. State, 749 S.W.2d 784 (Tex.Cr.App.1986), we held:

... neither this Court nor the court of appeals is authorized to reform the judgment and sentence to reflect conviction for a lesser included offense under [Tex.Code Crim.Proc.Ann. art. 44.24(b) ], since "reformation of judgment and sentence may be done only to cause those instruments to reflect the true finding of the fact finder when such a finding is reflected in the verdict or, in a bench trial, the pronouncement of the court's finding." Milczanowski v. State, 645 S.W.2d 445, 447 (Tex.Cr.App.1983). All that remains upon remand is to enter judgment of acquittal. But for this essentially ministerial act, there is no lack of finality in the judgment, and hence no basis to apply continuing jurisdiction.

Id. 749 S.W.2d at 793-794. See Bigley, 831 S.W.2d at 415, n. 2.

The Court of Appeals, however, continued and noted that art. 44.24(b) had been repealed and replaced by Rule 80 which contains a broader grant of authority to the courts of appeals. Id. Rule 80(b) provides:

Types of Judgment. The court of appeals may: (1) affirm the judgment of the court below, (2) modify the judgment of the court below by correcting or reforming it, (3) reverse the judgment of the court below and dismiss the case or render the judgment or decree that the court below should have rendered, or (4) reverse the judgment of the court below and remand the case for further proceedings. ¹

II.

In Stephens v. State, 683 S.W.2d 23 (Tex.App.--Dallas 1984), the defendant was convicted of aggravated rape. However, the Court of Appeals found the evidence was insufficient to sustain the conviction and ordered an acquittal. We affirmed that judgment. Stephens v. State, 717 S.W.2d 338 (Tex.Cr.App.1986). The State re-indicted Stephens for rape and Stephens filed a pretrial application for a writ of habeas corpus claiming that the prosecution was barred by the Double Jeopardy Clause. We found the subsequent prosecution was jeopardy barred. In so finding we specifically noted that the State had, at Stephens' first trial, chosen not to request an instruction on the lesser included offense of rape. Stephens v. State, 806 S.W.2d 812, 817-818 (Tex.Cr.App.1991). By failing to pursue the lesser included offense of rape, at the first trial, jeopardy had attached to that offense and the State was forever barred from prosecuting Stephens for that offense. Id.

In Granger v. State, 605 S.W.2d 602 (Tex.Cr.App.1980), the defendant was originally convicted of capital murder. However, we found the evidence was insufficient to prove the aggravating element of remuneration and ordered an acquittal. Granger was re-indicted for murder and filed a pretrial application for writ of habeas corpus contending the prosecution was barred by the Double Jeopardy Clause. However, at Granger's original trial, the jury had been charged on the lesser offense of murder. We held this instruction distinguished Granger's jeopardy claim from that in Stephens and held Granger's subsequent prosecution for murder was not jeopardy barred. Granger v. State, 850 S.W.2d 513, 524 (Tex.Cr.App.1993).

III.

In the instant case, as the majority notes, the jury was instructed on the lesser offense of possession of more than twenty-eight but less than 400 grams of methamphetamine. Consequently, the reformation by the Court of Appeals is not jeopardy barred. However, had there been no such instruction on the lesser included offense, the Court of Appeals would not have been authorized to reform the judgment under Rule 80(b). Had there been no such instruction, the appropriate action would have been for the Court of Appeals to order an acquittal. In other words, Rule 80(b) does not give the courts of appeals the authority to reform a judgment to that of a jeopardy barred offense.

With these comments, I join the majority opinion.

CLINTON, Judge, dissenting.

The authority claimed for the...