Rodriguez v. State, 03-18-00260-CR
| Decision Date | 24 July 2018 |
| Docket Number | NO. 03-18-00260-CR,03-18-00260-CR |
| Parties | Ronald Rudolph Rodriguez, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. CR2015-395, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
Ronald Rudolph Rodriguez was charged with possession of a controlled substance (methamphetamine) in a correctional facility and with possession of less than one gram of a controlled substance (methamphetamine). See Tex. Penal Code § 38.11(d), (g) (); Tex. Health & Safety Code §§ 481.102(6), .115(a)-(b) (governing offense of possession of less than one gram of methamphetamine and providing that offense is state-jail felony). The indictment also contained two enhancement paragraphs alleging that Rodriguez had previously been convicted of two felonyoffenses. See Tex. Penal Code §§ 12.42(d) (), .425(b) (elevating punishment range for state-jail felony to that of second-degree felony if defendant has previously been convicted of two felony offenses). At the start of the trial, Rodriguez pleaded not guilty to the offense of possessing a controlled substance in a correctional facility but pleaded guilty to the offense of possessing methamphetamine. During the guilt-or-innocence phase, the jury found Rodriguez guilty of possession in a correctional facility. At the end of the punishment phase, the jury found the enhancement allegations to be true and assessed Rodriguez's punishment for the charge of possession in a correctional facility at life imprisonment and for the charge of possession of a controlled substance at twenty years' imprisonment, and the district court rendered its judgment of conviction in accordance with the jury's verdicts. See id. §§ 12.33 (), .42(d) (setting out punishment range for felony offense when defendant has been previously convicted of two felonies). In three issues on appeal, Rodriguez contends that there was error in the jury charge, that he was provided with ineffective assistance of counsel, and that one of the enhancement allegations was improperly included in the jury charge. We will reverse the district court's judgment of conviction and remand for a new punishment hearing.
BACKGROUND
As set out above, Rodriguez was charged with possessing methamphetamine in a correctional facility and with possessing less than one gram of methamphetamine, and he pleaded guilty to the latter offense. The indictment contained enhancement paragraphs alleging that Rodriguezwas previously convicted of the felony offenses of theft and forgery. During the guilt-or-innocence phase, the State called various law-enforcement officials to the stand.
First, Officer Justin Garcia explained that he was working "as an asset protection associate" for a store on the day in question, that he observed Rodriguez grab "an 18-pack of beer," and that he saw Rodriguez attempt to leave the store without paying for the beer. Next, Officer Jason Tucker was called to the stand and related that Rodriguez was taken into custody and driven to jail, and in his cross-examination, Officer Tucker explained that he indicated on his report about the incident that Rodriguez was intoxicated. Then, Officer John Mahoney testified that he drove Rodriguez to jail and that Rodriguez seemed coherent on the trip to jail and asked Officer Mahoney to issue him a ticket rather than arrest him. After Officer Mahoney finished testifying, Officer Gilbert Serna related that he asked Rodriguez at the jail if Rodriguez had any weapons or contraband on him and that Rodriguez denied carrying any contraband, and Officer Gilbert also testified that he found during a pat-down search "a white bag with a clear crystal substance" inside Rodriguez's shirt pocket. Similarly, Officer Chris Stanley testified that he inventoried Rodriguez's wallet after Rodriguez was brought to jail and that there "was a white powdery substance" inside the wallet. Finally, Officer Jeffrey Keverline was called to the stand and testified that he is "a controlled substance analyst," that he tested the substances found during the pat-down search of Rodriguez and during the search of his wallet, that both substances were methamphetamine, that one of the substances had a mass of 0.11 grams, and that the other substance had a mass of 0.14 grams.
During the punishment phase, the State called several witnesses to testify regarding prior offenses purportedly committed by Rodriguez, including the two offenses listed as enhancementsin the indictment, and regarding offenses that allegedly occurred after the offenses at issue. After the witnesses finished testifying, the jury assessed Rodriguez's punishment, and the district court rendered its judgment of conviction. Rodriguez appeals the district court's judgment of conviction.
DISCUSSION
In his first issue on appeal, Rodriguez contends that the district In his second issue on appeal, Rodriguez argues that he was denied effective assistance of counsel. In his final issue on appeal, Rodriguez asserts that the district court erred by including one of the enhancement allegations in the jury charge.
Jury Charge
The indictment in this case alleged, in relevant part, that Rodriguez "did then and there intentionally or knowingly possess a controlled substance, to-wit: Methamphetamine, on property owned, used[,] or controlled by a correctional facility, to-wit: the Comal County Jail." In contrast, the portion of the jury charge pertaining to possession of a controlled substance in a correctional facility specified as follows: "Our law provides that a person commits an offense if he intentionally, knowingly, or recklessly possesses a controlled substance while on property owned, . . . used, or controlled [by] a correctional facility." Further the charge provided the complete statutory definitions for the terms intentionally, knowingly, and recklessly. See Tex. Penal Code § 6.03. Moreover, in the application section, the charge instructed the jury as follows:
Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that . . . Rodriguez . . . did then and there intentionally, knowingly, or recklessly possess . . . [m]ethamphetamine, on property owned, used[,] or controlled by a correctional facility, to-wit: the Comal [C]ounty jail, the[n] you will find [Rodriguez] guilty of the offense of Prohibited Substance in a Correctional Facility.
On appeal, Rodriguez contends that the inclusion of a reckless mental state was improper for several reasons. First, Rodriguez argues that "'Reckless Possession of a Controlled Substance' is [n]ot an [o]ffense" under the Penal Code. Although the statutory provision forbidding possession in a correctional facility does not specify what culpable mental state is required for an offense, see id. § 38.11(d), Rodriguez insists that only intentional or knowing conduct can constitute an offense and points to statutes and case law governing the offense of possession of a controlled substance as support for this proposition, see, e.g., id. § 1.07(a)(39) (defining "[p]ossession); Tex. Health & Safety Code § 481.115(a) (); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) (), abrogated on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015).
Additionally, Rodriguez argues that "[e]ven if reckless possession were an offense under the laws of this [S]tate," the indictment did not charge him for that offense and that including recklessness in the jury charge but not in the indictment deprived him "of [n]otice of the [a]ct or [a]cts [r]elied [u]pon to [c]onstitute '[r]ecklessness.'" See Tex. Code Crim. Proc. art. 21.15 ().
For purposes of resolving this issue on appeal, we will assume without deciding that the inclusion of a mental state of recklessness was error. If an appellate court determines that there is error present in a jury charge, it must then evaluate the harm caused by the error. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The amount of harm needed for a reversal depends on whether a complaint regarding "that error was preserved in the trial court." Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref'd). If the defendant made a timely objection, reversal is required if there has been "some harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). However, if no objection was made, a reversal is warranted only if the error "resulted in 'egregious harm.'" See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008) (quoting Almanza, 686 S.W.2d at 171).
In this case, Rodriguez contends that this Court should determine whether there was some harm stemming from the error because he objected to the inclusion of the reckless mental state, but the State contends that this Court should address whether Rodriguez was egregiously harmed because he failed to properly object to the jury instructions.2 For purposes of resolving this issue on appeal, we will assume for the sake of argument that Rodriguez objected to the inclusionof a reckless mental state in the abstract and application sections of the jury charge. Accordingly, we will analyze whether Rodriguez suffered some harm by the inclusion of the reckless mental state.
In this...
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