Wilson v. State

• Decision Date: 22 January 1992
• Docket Number: No. 05-89-01481-CR,05-89-01481-CR
• Citation: 825 S.W.2d 155
• Parties: Tommy Curtis WILSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 155

825 S.W.2d 155

Tommy Curtis WILSON, Appellant, v. The STATE of Texas, Appellee.

No. 05-89-01481-CR.

Court of Appeals of Texas,

Dallas.

Jan. 22, 1992.

Discretionary Review Refused June 17, 1992.

Gary Udashen, Dallas, for appellant.

Carolyn Fitz-Gerald Levin, Dallas, for appellee.

Before ROWE, ¹ BURNETT and CHAPMAN ², JJ.

OPINION ON REMAND

CHAPMAN, JUSTICE

Upon original submission of this cause we did not consider Wilson's four points of error challenging the constitutionality of article 21.06 of the Texas Code of Criminal Procedure. Wilson v. State, No. 05-89-01481-CR (Tex.App.--Dallas December 18, 1990) (not designated for publication). Wilson filed a petition for discretionary review. The Court of Criminal Appeals remanded this cause for consideration of Wilson's constitutional challenges. Wilson v. State, No. 113-91 (Tex.Crim.App. March 27, 1991) (not designated for publication). We overrule Wilson's points ³ and affirm the trial court's judgment.

The trial court found Tommy Curtis Wilson guilty of unlawful delivery of a simulated controlled substance and sentenced him to eight years' confinement and a $1,000 fine. As authorized by article 21.06 of the Texas Code of Criminal Procedure, the indictment alleged that the offense occurred in Dallas County. TEX.CODE CRIM.PROC.ANN. art. 21.06 (Vernon 1989). However, the evidence showed that the offense occurred in Tarrant County but within 400 yards of the Dallas County line. ⁴ Wilson complains that article 21.06 violates (1) his right to be informed of the nature of the accusation against him, (2) his right to due process, and (3) his right to due course of law.

STANDARD OF REVIEW

In determining a statute's constitutionality, this Court begins with a presumption of the statute's validity. We presume that the legislature did not act unreasonably or arbitrarily in enacting the statute. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). It is Wilson's burden to show that the statute is unconstitutional. Granviel, 561 S.W.2d at 511; Robinson v. Hill, 507 S.W.2d 521, 524 (Tex.1974). Every reasonable intendment and presumption is made in favor of the constitutionality and validity of the statute until the contrary is clearly shown. Before a legislative act will be set aside, it must clearly appear that its validity cannot be supported by any reasonable intendment or allowable presumption. Granviel, 561 S.W.2d at 511.

The Code of Criminal Procedure provides: "When the offense may be prosecuted in either of two or more counties, the indictment may allege the offense to have been committed in the county where the same is prosecuted, or any county or place where the offense was actually committed." See TEX.CODE CRIM.PROC.ANN. art. 21.06 (Vernon 1989).

The indictment's purpose is to notify the accused of the charged offense and its elements so that he may properly prepare his defense. Sattiewhite v. State, 600 S.W.2d 277, 282 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh'g). We view the information that the indictment provided from Wilson's perspective at the time he was indicted. It is improper to determine whether the allegations in the charging instrument constituted adequate notice by reviewing the record. The notice upon which the accused prepares his defense must come from the face of the charging instrument. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App.1988). However, the State need not prove every averment in an indictment. Sattiewhite, 600 S.W.2d at 284 n. 11. In preparing charging instruments, the State usually describes the location of the criminal offense by merely alleging that it was committed in a certain county. Ward v. State, 642 S.W.2d 782, 783 (Tex.Crim.App. [Panel Op.] 1982). Our inquiry is whether Wilson's indictment provided him with the notice required by the constitutional provisions upon which he bases his points of error.

FEDERAL CONSTITUTIONAL RIGHT TO BE INFORMED

In his third point of error, Wilson complains that article 21.06 violates the Sixth and Fourteenth Amendments to the United The Sixth Amendment, in part, provides that an accused shall be informed of the nature and cause of the accusation against him. U.S. CONST. amend. VI. The Fourteenth Amendment dictates that fundamental guarantees apply equally in federal and state courts. U.S. CONST. amend XIV; Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969); Jackson v. State, 697 S.W.2d 513, 514 (Tex.App.--San Antonio 1985, no pet.). An indictment is sufficient if it (1) contains the elements of the offense charged, (2) fairly informs the defendant of the charge against which he must defend, and (3) enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974).

States Constitution. He argues that the State affirmatively misinformed him of the nature of the accusation made against him because article 21.06 allowed the State to allege that an offense occurred in one county and to prove that it occurred in another county.

It is not necessary to allege the location of an offense with any more specificity than the county if: (1) the offense may be committed anywhere within the county; (2) the offense location is not an element of the offense; and (3) the trial court has countywide jurisdiction. Hodge v. State, 527 S.W.2d 289, 292 (Tex.Crim.App.1975). Designating the county constitutes a sufficient allegation of the offense location to provide a defendant with adequate notice of the offense with which he is charged and to enable him to plead a judgment in bar to subsequent prosecutions. Hodge, 527 S.W.2d at 291.

The indictment need not allege evidentiary matters for the purpose of notice when the charging instrument clearly states the offense charged. See Ward, 642 S.W.2d at 784. The indictment need not set forth absolute factual allegations in the indictment. See TEX.CODE CRIM.PROC.ANN. art. 21.04 (Vernon 1989); Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh'g); King v. State, 732 S.W.2d 796, 802 (Tex.App.--Fort Worth 1987, pet. ref'd). When charging possession of a controlled substance, neither the indictment nor the information must allege where within the county the alleged offense of possession occurred. Ex parte Hyett, 610 S.W.2d 787, 788 n. 1 (Tex.Crim.App.1981).

Appellant is charged with constructive knowledge of the law. See Crain v. State, 69 Tex.Crim. 55, 153 S.W. 155, 155-56 (1913); TEX.PENAL CODE ANN. §§ 1.02, 8.03(a) (Vernon 1974). This constructive knowledge extends to procedural laws and case law. See TEX.PENAL CODE ANN. §§ 1.07(a)(20), 8.03(a) (Vernon 1974); Minjares v. State, 577 S.W.2d 222, 224 (Tex.Crim.App. [Panel Op.] 1978); Williams v. State, 549 S.W.2d 183, 187 (Tex.Crim.App.1977).

Wilson's indictment charged delivery of a simulated controlled substance in Dallas County. The State proved that the offense occurred in Tarrant County within 400 yards of Dallas County. The offense location is not an element of delivery of a simulated controlled substance. TEX.HEALTH & SAFETY CODE ANN. § 482.002 (Vernon Pamph.1992). Since the offense location is not an element of the offense, there was no error in the indictment. The indictment informed Wilson of the accusation that he had delivered a simulated controlled substance and did not fail to allege the elements of the charged offense. He was charged with constructive notice of article 21.06. See Minjares, 577 S.W.2d at 224. We hold that under these circumstances article 21.06 does not unconstitutionally violate Wilson's Sixth Amendment right to be informed of the nature of the accusation against him. We overrule Wilson's third point of error.

STATE CONSTITUTIONAL RIGHT TO BE INFORMED

In his fourth point of error, Wilson complains that article 21.06 violates his right to be informed of the nature of the accusation against him under article 1, section 10 of the Texas Constitution. Article Venue was proper in Dallas County in this case because the offense allegedly occurred within 400 yards of Dallas County. TEX.CODE CRIM.PROC.ANN. art. 13.04 (Vernon 1977). Venue is a place where the case may be tried. See Ex parte Watson, 601 S.W.2d 350, 351 (Tex.Crim.App.1980); Clark v. State, 796 S.W.2d 551, 554 (Tex.App.--Dallas 1990, no pet.). Venue is not a constituent element of the offense. Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App.1981); Glenn v. State, 779 S.W.2d 466, 469 (Tex.App.--Tyler 1989, pet. ref'd).

                1, section 10, in part, provides that the accused shall have the right to know the nature and cause of the accusation against him and to have a copy thereof.    TEX.CONST. art. 1, § 10.  This constitutional provision requires that the charging instrument itself convey adequate notice from which the accused may prepare his defense.  State v. Carter, 810 S.W.2d 197, 199 (Tex.Crim.App.1991).  A defendant is entitled to notice of the acts or omissions allegedly committed.  Carter, 810 S.W.2d at 199;  Daniels v. State, 754 S.W.2d 214, 217 (Tex.Crim.App.1988)
                

Article 21.06 authorized the State to allege that the offense occurred in the county of prosecution rather than the county in which it was committed. TEX.CODE CRIM.PROC.ANN. art. 21.06 (Vernon 1989). An indictment is not fundamentally defective if it avers that the offense occurred in a county other than the county of prosecution. Watson, 601 S.W.2d at 352 n. 3. Further, it is not error for the indictment to aver that the offense occurred in the county of prosecution rather than the county in which the offense was committed. See Rushing v. State, 546 S.W.2d 610, 611 (Tex.Crim.App.1977).

Wilson contends that the prosecuting county's use of article 21.06 affirmatively misled him regarding the nature of the accusation against him. The State charged Wilson with delivery of a simulated controlled substance in Dallas County and proved that it occurred...