Williams v. State

• Decision Date: 29 December 2011
• Docket Number: No. 06–10–00098–CR.,06–10–00098–CR.
• Parties: Curtis Leo WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

356 S.W.3d 508

Curtis Leo WILLIAMS, Appellant,

v.The STATE of Texas, Appellee.

No. 06–10–00098–CR.

Court of Appeals of Texas, Texarkana.

Submitted: Oct. 17, 2011.Decided: Nov. 3, 2011.Rehearing Overruled Dec. 29, 2011.

Curtis Leo Williams, Iowa Park, pro se.

Martin Braddy, Hopkins County Dist. Atty., Peter Morgan, Asst. Dist. Atty., Sulphur Springs, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

Curtis Leo Williams, proceeding pro se, appeals his conviction for possession of more than four grams but less than 200 grams of a controlled substance (cocaine), a second-degree felony. See Tex. Health & Safety Code Ann. § 481.115(d) (West 2010). The State alleged two prior felony convictions, which elevated the punishment range to not less than twenty-five years' imprisonment and not more than ninety-nine years or life imprisonment. See Act of May 23, 1997, 75th Leg., R.S., ch. 665, 1997 Tex. Gen. Laws 2247, 2248 (amended 2011) (current version at Tex. Penal Code Ann. § 12.42 (West 2011)). In a companion case ¹ (also decided today), Williams was convicted of the state-jail felony of possession of more than four ounces, but less than five pounds of marihuana, also a controlled substance. See Tex. Health & Safety Code Ann. § 481.121(b)(3) (West 2010). In relation to the other conviction, the State alleged two prior felony convictions, which elevated the punishment range to a second-degree felony. See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2735 (amended 2011) (current version at Tex. Penal Code Ann. § 12.42 (West 2011)).

The genesis of these charges arose as the result of a traffic stop during which the drugs were discovered. Williams, who had previously been declared indigent and had been appointed counsel, appeared at a pretrial hearing on February 26, 2010, wherein Williams appeared with recently-retained counsel, who requested a continuance. The trial court (after noting the case was over two years old, had been set for trial,² and was the only case on his docket that was ready to be tried) refused to grant Williams' oral motion for a continuance, whereupon retained counsel announced that he could not be prepared for trial and declined to appear further. The trial court then denied Williams' appointed counsel's oral motion to withdraw.³

Williams and his appointed counsel appeared on March 2, 2010, for jury selection, and Williams entered a plea of “not guilty.” On March 9 and 10, Williams apparently deliberately absented himself and was tried in absentia. The jury found Williams guilty, found both enhancements to be true, and assessed punishment at sixty-three years' imprisonment for the possession of cocaine charge and seven years' imprisonment for the possession of marihuana charge. The trial court sentenced Williams consistent with the jury's assessment on May 26, 2010. Williams appealed and elected to proceed pro se on appeal.

(1) The Evidence Is Sufficient

Williams challenges the legal and factual sufficiency ⁴ of the evidence. To the best that we can discern,⁵ Williams argues that the State failed to establish the controlled substance contains adulterants or dilutants and that some form of a material variance exists.

In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 912 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App.-Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318–19, 99 S.Ct. 2781); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

Williams argues, when the State “attempts to obtain conviction for Possession offense on theory that aggregate weight of controlled substance, including adulterants and dilutants, is over 4 grams it must first prove existance [sic] of any adulterants and then show that controlled substance weighs more than 4 grams.” In support of this argument, Williams cites Benoit v. State, 561 S.W.2d 810, 815 (Tex.Crim.App.1977), overruled on other grounds by Harrison v. State, 187 S.W.3d 429, 433 (Tex.Crim.App.2005). In the thirty years since Benoit, the Texas Health and Safety Code has been amended.⁶ The Texas Court of Criminal Appeals has noted “[u]nder the new Health and Safety Code definition, the State is no longer required to determine the amount of controlled substance and the amount of adulterant and dilutant that constitute the mixture.” Melton v. State, 120 S.W.3d 339, 344 (Tex.Crim.App.2003). Rather, “[t]he State has to prove only that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equals the alleged minimum weight.” Id.

Williams also alleges a material variance exists between the indictment and the evidence at trial. Williams does not attempt to specify the material variance he alleges. A variance exists when there is a discrepancy between the allegations in the charging instrument and the proof at trial. In re S.C., 229 S.W.3d 837, 841 (Tex.App.-Texarkana 2007, pet. denied).

The Texas Court of Criminal Appeals has held that evidentiary sufficiency should be measured against a “hypothetically correct” jury charge. See Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim.App.2001); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). Malik controls “even in the absence of alleged jury charge error.” Gollihar, 46 S.W.3d at 255. A “hypothetically correct” jury charge is “one that 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.” Malik, 953 S.W.2d at 240. The hypothetically correct jury charge must include both (1) allegations that form an integral part of an essential element of the offense, including allegations that are statutorily alternative manner and means and (2) material variances. Clinton v. State, 327 S.W.3d 366, 368–69 (Tex.App.-Texarkana 2010, pet. granted); see Gollihar, 46 S.W.3d at 256. When determining whether a variance is material, we must consider two questions: “1) whether the indictment, as written, informed the defendant of the charge against him or her sufficiently to allow such defendant to prepare an adequate defense at trial, and 2) whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.” Mantooth v. State, 269 S.W.3d 68, 76 (Tex.App.-Texarkana 2008, no pet.).

Our review has not revealed any variances concerning the charged offense between the indictment and the evidence presented at trial. The indictment in this case alleged that Williams did “intentionally and knowingly possess a controlled substance, namely, Cocaine, in an amount of four grams or more but less than 200 grams.” In the companion case, the indictment alleged Williams did “intentionally and knowingly possess a useable quantity of Marihuana in an amount of five pounds or less but more than four ounces.” The State introduced sufficient evidence establishing these allegations. Williams was the driver of the vehicle in which the illicit drugs were located and the vehicle's sole occupant.⁷ The cocaine was discovered in a “clear, plastic baggie” which was “stuck between the console and the driver's seat.” The marihuana was found in a Wal–Mart bag on the floorboard of the back seat. Clavian Cloud, III, a chemist with the Texas Department of Public Safety, identified the substances as cocaine and marihuana, testified the cocaine weighed 24.68 grams, and testified the marihuana weighed 2.88 pounds. A rational juror could have concluded, beyond a reasonable doubt, that Williams was guilty of possession of cocaine and possession of marihuana as alleged in the indictments.

(2) The Record Contains Sufficient Evidence to Support the Enhancements

In our review of the enhancements, we noticed one of the prior Tennessee convictions has two different dates for entry of the judgment. Count 1 and Count 2 of cause number IF7268 both state, “Comes the District Attorney General for the State and the defendant with counsel of record for entry of judgment. On the 7 day of FEB, 19 95, the defendant ...,” but the “Date of Entry of Judgment” is “3/23/95.” Williams has failed to provide this Court with any authority concerning whether, in Tennessee, the conviction occurs upon oral pronouncement or when the trial court signs the judgment. Regardless, the variance, if any, would be immaterial.⁸ Both indictments allege identical enhancements as follows:

And it is further presented in and to said Court that, prior to the commission of the aforesaid offense, on the 17th day of April, 2002, in Cause No. 2001–B–963, in the 20th Judicial District Criminal Court of Davidson County, Tennessee, the defendant was convicted of the felony of Possession With Intent To Sell; and on the 23rd Day of March, 1995, in Cause No. IF7268 Count 1, in the 20th Judicial District Criminal Court of Davidson County, Tennessee, the defendant was convicted of the felony of Possession Of Cocaine; and on the 23rd day of March, 1995, in Cause No. IF7268 Count 2, in the 20th Judicial District Criminal Court of Davidson County,...