Miles v. State

• Decision Date: 07 December 2011
• Docket Number: Nos. PD–1708–08,PD–1709–08.,s. PD–1708–08
• Citation: 357 S.W.3d 629
• Parties: Leonard MILES III, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

357 S.W.3d 629

Leonard MILES III, Appellant,

v.The STATE of Texas.

Nos. PD–1708–08

PD–1709–08.

Court of Criminal Appeals of Texas.

Dec. 7, 2011.

Christian T. Souza, Asst. Public Defender, Dallas, for Appellant.

Kimberly J. Pfannenstiel, Asst. D.A., Dallas, Lisa C. McMinn, State's Attorney, Austin, for The State of Texas.

WOMACK, J., delivered the opinion of the Court, in which MEYERS, PRICE, JOHNSON, COCHRAN, and ALCALA JJ., joined.

A jury convicted the appellant of unlawful possession of firearm and possession of codeine.

Our order granting review in the firearm case (our PD–1708–08, the Court of Appeals' case 05–07–1239–CR) was a clerical error, and the petition for discretionary review in that case is dismissed as improvidently granted.

The rest of our opinion will deal with the appeal of the codeine case (our PD–1709–08, the Court of Appeals' case 05–07–1240–CR), in which the appellant challenged the sufficiency of the evidence to support his conviction under Health and Safety Code Section 481.115, Possession of Substance in Penalty Group 1.

The Fifth Court of Appeals held that the evidence at the appellant's trial was sufficient to support his conviction under another section of the Health and Safety Code: Section 481.118, Possession of Substance in Penalty Group 4. ¹

We granted the appellant's petition for discretionary review on the following ground: “What codeine concentration is required to support a conviction for possession of codeine as a first-degree felony?” We hold that the Court of Appeals erred in failing to measure the sufficiency of the evidence against the elements of the offense for which the appellant was tried. We hold that the appellant was tried for possession of Penalty Group 1 codeine, and that the evidence presented at the appellant's trial was insufficient to support a conviction for that offense. We therefore reverse the Court of Appeals's decision in that case and render a judgment of acquittal.

I. Sufficiency Standard

The Due Process Clause of the Fourteenth Amendment “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.” ² The standard for appellate review under that Clause is whether an appellate court can say that, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ³

In Texas, the essential elements of the crime are defined by the “hypothetically correct jury charge” for the case.⁴ 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.” ⁵

II. Sufficiency Review on the Appeal

On appeal, the parties disagreed about the particular offense for which the appellant was tried. This disagreement stemmed from the failure of the indictment and jury charge to include an essential element that would distinguish among the three possession-of-codeine offenses in the Health and Safety Code.

The indictment alleged that, on or about February 10, 2005, the appellant possessed, with intent to deliver, codeine in the amount of 200 grams or more, including any adulterants or dilutants. The jury acquitted him of the offense of possession with intent to deliver, and found him guilty of the lesser offense of possession of that amount of codeine.

The appellant contends that he was convicted of the offense in Health and Safety Code Section 481.115: Possession of Substance in Penalty Group 1. Penalty Group 1 includes “codeine not listed in Penalty Group 3 or 4.” ⁶ Possession of 200 grams of such codeine was a felony of the second degree.⁷

The State contended that the appellant was tried for the offense in Section 481.118: Possession of Substance in Penalty Group 4. Penalty Group 4 codeine consists of codeine compositions with “not more than 200 milligrams of codeine per 100 milliliters or per 100 grams,” along with “one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone.” ⁸

The Fifth Court of Appeals acknowledged that no penalty group was alleged in the indictment, but found no authority for the appellant's contention that “when the State fails to allege a penalty group in the indictment, the State must then prove Penalty Group 1.” ⁹ Because the evidence showed that the appellant possessed a codeine composition with a total weight of 304 grams and a concentration of 158 milligrams of codeine per 100 milliliters, “an amount [sic] set out in either Penalty Group 3 or 4,” the Court of Appeals concluded the evidence was sufficient to support the appellant's conviction “for possession of 200 grams or more but less than 400 grams of codeine.” ¹⁰ The Court of Appeals noted that “[t]o the extent appellant is attempting to argue indictment error, he has waived any error by failing to object at trial.” ¹¹

We hold that the Court of Appeals erred in failing to identify the offense for which the appellant was tried, and in then failing to measure the sufficiency of the evidence against the essential elements of that offense. Evidence of codeine concentration of 158 milligrams per 100 milliliters does not distinguish between Penalty Groups 1 and 4, since a substance will fall into Penalty Group 1 if it has such a concentration of codeine, but has insufficient concentration of active nonnarcotic ingredients to qualify for Penalty Group 4. Moreover, Malik requires that the evidence be measured against the hypothetically correct jury charge, which must “adequately describe[ ] the particular offense for which the defendant was tried.” ¹² A reviewing court may not merely conclude that the evidence was sufficient to prove that some offense occurred. The evidence must be sufficient to prove that a particular offense occurred, and the particular offense must be that for which the defendant was tried.¹³

III. Determining the Particular Offense

With the failure of the indictment and jury charge to allege a specific codeine offense, we will look to the totality of the trial record to identify the particular offense for which the appellant was tried. The trial record provides clues when reviewed in conjunction with the following statutory framework of offenses and punishments related to codeine possession:

• Penalty Group 1 codeine is defined as “codeine not listed in Penalty Group 3 or 4.” ¹⁴

• Penalty Group 3 codeine is defined as “not more than 1.8 grams of codeine ... per 100 milliliters ..., with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.” ¹⁵

• Penalty Group 4 codeine is defined as “a compound ... containing limited quantities of any of the following narcotic drugs that includes one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound ... valuable medicinal qualities other than those possessed by the narcotic drug alone: not more than 200 milligrams of codeine per 100 milliliters or per 100 grams.” ¹⁶

• Possession with intent to deliver 200 to 400 grams of Penalty Group 1 codeine is an offense punishable by imprisonment for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000. ¹⁷

• Possession with intent to deliver 200 to 400 grams of Penalty Group 3 or 4 codeine is a first-degree felony offense.¹⁸

• Possession of 200 to 400 grams of Penalty Group 1 codeine is a first-degree felony offense.¹⁹

• Possession of 200 to 400 grams of Penalty Group 4 codeine is a second-degree felony offense.²⁰

• The punishment for a first-degree felony is imprisonment for life or for any term of not more than 99 years or less than 5 years, and a fine not to exceed $10,000.²¹

• The punishment for a second-degree felony is imprisonment for any term of not more than 20 years or less than 2 years, and a fine not to exceed $10,000.²²

• If previously convicted of a felony, a defendant newly convicted of a second-degree felony shall be punished for a first-degree felony, and a defendant newly convicted of a first-degree felony shall be punished by imprisonment for life or any term of not more than 99 years or less than 15 years, and a fine not to exceed $10,000.²³

At the top of the indictment, after the heading “Charge,” was typed the following notation: “POSS CS INT DEL 200G PG3/4/2nd.” This notation suggests the State originally intended to indict the appellant under Health and Safety Code Section 481.114: Manufacture or Delivery of Substance in Penalty Group 3 or 4, which includes possession of a controlled substance with intent to deliver. In the body of the indictment, however, the grand jury presented that the appellant “did unlawfully and knowingly possess with intent to deliver a controlled substance, to-wit: CODEINE, in an amount by aggregate weight, including any adulterants or dilutants, of 200 grams or more but less than 400 grams.” The body of the indictment thus did not distinguish between the penalty groups that are elements of the possession with intent to deliver offenses in Health and Safety Code Sections 481.112 and 481.114. After presenting the offense, the grand jury further presented that the appellant had been previously convicted of a felony.

At the beginning of voir dire, the trial court read to the jury the allegations presented in the body of the indictment. The trial court then told the jury, without objection from either party, the punishments applicable to the offenses:

Now, our law says—y'all correct me if I'm wrong now, Counsel, but a person who is convicted of this offense, if convicted, is to be confined in the penitentiary for a...