Fisher v. State

• Decision Date: 19 October 1994
• Docket Number: No. 1159-91,1159-91
• Parties: Johnny Ray FISHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 49

887 S.W.2d 49

Johnny Ray FISHER, Appellant, v. The STATE of Texas, Appellee.

No. 1159-91.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 19, 1994.

Donald S. Gandy, J. Rex Barnett, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, David L. Richards, Charles Brandenberg and Roxanne McDonald, Asst. Dist. Atty., Fort Worth, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING AFTER PETITION FOR

DISCRETIONARY REVIEW REFUSED

MALONEY, Judge.

Appellant was convicted of the aggravated offense of delivery of a controlled substance, amphetamine, with an aggregate weight, including adulterants and dilutants, of twenty-eight grams or more. Appellant was sentenced to twenty-five years imprisonment. In an unpublished opinion the Court of Appeals reversed the judgment of the trial court and ordered a judgment of acquittal. Fisher v. State, No. 2-89-269-CR slip op. (Tex.App.--Ft. Worth 1991). We refused the State's petition for discretionary review, but subsequently granted its Motion for Rehearing after Petition for Discretionary Review Refused.

The indictment alleged delivery of

a controlled substance, namely: amphetamine of more than twenty-eight grams but less than four hundred grams[.]

At trial a chemist for the Department of Public Safety testified that her analysis of the substance at issue showed that of its total weight of 59.32 grams, only thirty-one percent or 18.38 grams was pure amphetamine. She further testified that the remainder of the substance consisted of adulterants and dilutants.

The jury was instructed that

[t]he offense is aggravated if the person delivers a controlled substance, namely, amphetamine, and the amount of the controlled substance is, by aggregate weight, including any adulterants and dilutants, twenty-eight grams or more.

Appellant objected to the above instruction on the ground that it included the phrase "adulterants and dilutants" which was not pled in the indictment. The trial court overruled the objection and the instruction was submitted.

Before the Court of Appeals appellant argued that by including the phrase "adulterants and dilutants," the trial court's instruction allowed the jury to convict appellant on a theory not pled in the indictment. Based upon this Court's decisions in Reeves v. State, 806 S.W.2d 540 (Tex.Crim.App.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991) and Farris v. State, 811 S.W.2d 577 (Tex.Crim.App.1990), the Court of Appeals concluded that when an indictment alleges a specified weight of a controlled substance and does not also specify that the weight includes "adulterants and dilutants" then the State must prove the existence of the controlled substance in its pure form in the amount of the weight alleged. Fisher, slip op. at 5. The Court of Appeals therefore agreed with appellant that the jury instruction authorized the jury to convict appellant on a theory not supported by the indictment. The Court of Appeals further held that "the evidence is insufficient to convict the appellant on the aggravated offense as alleged in the indictment," reversed the judgment of the trial court and ordered an acquittal. Id. at 6.

The State claims that the Court of Appeals erred in measuring sufficiency of the evidence against the indictment rather than the jury instruction, citing Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982) (opinion on State's second motion for reh'g), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984) and Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984). The State concedes that the jury charge should not have included the instruction on adulterants and dilutants, but argues that such instruction amounted to charge error entitling appellant to a new trial, not an acquittal. Appellant maintains that the Court of Appeals correctly measured sufficiency against the indictment.

The State also urges this Court to re-examine and clarify the standard by which sufficiency of the evidence is measured, pointing to inconsistencies in the Benson /Boozer line of cases. We granted review to reconsider the standard by which sufficiency of the evidence is measured in cases where the jury instruction allows a conviction on a theory different from that specifically alleged in the indictment and to determine whether the Court of Appeals erred in its sufficiency analysis in this case. ¹

I.

Our notion of reviewing sufficiency of the evidence is inextricably bound with due process principles of notice and opportunity to defend. In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court recognized that the "Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (emphasis added). Citing Winship, the Supreme Court stated in Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979), that a conviction on a charge not made or not tried is a denial of due process consistent with the broader principle "that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend." Concluding that these principles applied on appeal as well as at trial, the Supreme Court held that "[a]fter Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Id. at 318. ² It logically follows that the reviewing court's sufficiency analysis must take into account the crime with which the defendant was charged in the indictment.

We accordingly recognized in Benson v. State, supra, that there must be a connection between the crime with which a defendant is charged in the indictment and a reviewing court's role in reviewing the sufficiency of the evidence to support a conviction. There, we were asked whether a reviewing court should look to the indictment or the jury charge in determining sufficiency of the evidence to support a conviction. 661 S.W.2d at 713. Discussing the respective roles of the indictment and jury charge, we began with the premise that "the indictment must allege all of the essential elements of the offense." Id. The charge must also contain all of the essential elements of the offense and "should correspond with and incorporate the allegations in the indictment." Id. We stressed the relationship between the indictment, the proof, and the jury charge, explaining that:

The standard by which sufficiency is measured was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ... This standard must be applied to the evidence and to a correct charge that corresponds to the indictment allegations. The verdict comes from the jury's determination of the evidence in light of the instructions and law given in the charge. The indictment is directed to the defendant for notice and jurisdiction requirements. It is the charge that "convicts."

Id. at 715 (emphasis added). We held that "when a charge is correct for the theory of the case presented we review the sufficiency of the evidence in a light most favorable to the verdict by comparing the evidence to the indictment as incorporated into the charge." Id. (emphasis in original).

In Boozer v. State, supra, the charge contained an erroneous instruction on the law applicable to accomplice witness testimony. We held that "sufficiency of the evidence is measured by the charge that was given." 717 S.W.2d at 610 (emphasis in original). While the emphasis in Boozer was on the charge alone rather than the "indictment as incorporated into the charge" as we emphasized in Benson, the issue before the Court in Boozer concerned an instruction on accomplice witness testimony, a matter that was not and need not have been pled in the indictment. Accordingly, we do not construe Boozer as limiting or modifying Benson's holding.

While the basis upon which Benson and Boozer were decided is not here questioned, ³ this Court's construction of subsequent constitutional amendments and legislative action ultimately affects the reasoning underlying those decisions. Therefore, we need to re-examine Benson and Boozer in light of those constitutional and statutory changes before addressing the State's specific questions about our application of those cases.

For over one hundred years Texas courts have held that defects of substance contained in an indictment rendered it "fundamentally defective" and could be raised at any time. ⁴ See, e.g., Studer v. State, 799 S.W.2d 263, 266-67 (Tex.Crim.App.1990); American Plant Food Corporation v. State, 508 S.W.2d 598, 603 (Tex.Crim.App.1974); Williams v. State, 12 Tex.Ct.App. 398, 401 (1882); White v. The State, 1 Tex.Crim.App. 211, 213 (1876); see generally George E. Dix, Texas Charging Instrument Law: The 1985 Revisions and the Continuing Need for Reform, 38 BAYLOR L.REV. 1, 13-24 (1986). The failure of an indictment to allege all of the elements of an offense was considered a fundamental defect, rendering an indictment and thus a conviction based thereon, void. See, e.g., Gengnagel v. State, 748 S.W.2d 227, 229 (Tex.Crim.App.1988) (indictment that failed to allege acts constituting recklessness was fundamentally defective); White, 1 Tex.Crim.App. at 214-15 (indictment that failed to allege felonious intent was fatally substantively defective); see also Ex parte Cannon, 546 S.W.2d 266, 268 (Tex.Crim.App.1976) (indictment that failed to allege facts to constitute all elements of offense was fundamentally defective, void and subject to attack in application for writ of habeas corpus).

Expressing frustration over the ability of a defendant to raise substantive defects in the indictment...