Virgil James Lackey v. State
01-16-00987-CR
| Tex. App. | Dec 7, 2017Background
- Appellant Virgil James Lackey pleaded guilty to engaging in organized criminal activity and possession with intent to deliver cocaine; indictments also alleged deadly-weapon use and a prior felony theft enhancement.
- The trial court deferred sentencing to obtain a presentence investigation report; later adjudicated guilt and sentenced Lackey to 40 years' imprisonment on each count, to run concurrently, and entered deadly-weapon findings.
- Facts supporting the offenses: Lackey and others agreed to rob a warehouse believed to contain kilograms of cocaine; the group arrived armed and were arrested shortly after the robbery.
- At plea, Lackey signed a written “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” describing the combination (five named persons), the conspiracy to commit aggravated robbery, the overt act of arriving with a deadly weapon to remove cocaine, and admitting prior felony theft conviction.
- Lackey appealed, raising three points: (1) insufficient evidence of continuing criminal activity for the organized-criminal-activity conviction; (2) erroneous deadly-weapon findings; and (3) trial court could not rely on enhancements because he did not say the word “true.”
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lackey) | Held |
|---|---|---|---|
| Sufficiency of evidence for engaging in organized criminal activity | The State relied on Lackey’s written judicial confession (waiver/stipulation) which admits membership in a combination, intent to establish/participate, and overt acts — sufficient under Art. 1.15 | Lackey argued the State produced no evidence of a continuing course of criminal activity required by §71.02/§71.01 | Affirmed: judicial confession/stipulation covers all elements and satisfies the State’s burden as independent evidence supporting the guilty plea |
| Deadly-weapon finding | The State relied on Lackey’s written confession admitting use/exhibition of a firearm during commission and flight | Lackey argued there was no evidence to support a deadly-weapon finding | Affirmed: judicial confession is sufficient to show he used/exhibited a firearm; court properly entered deadly-weapon findings |
| Enhancement allegation (prior conviction) | The State relied on the enhancement paragraph in the written waiver and Lackey’s admissions; judicial confession included the prior-conviction allegation | Lackey argued he never explicitly said “true” to the enhancement and thus the State should have proved the prior conviction | Affirmed: Lackey’s written confession and oral acknowledgment constitute pleading the enhancement true; any failure to object waived error |
Key Cases Cited
- Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App. 2009) (state must introduce evidence independent of plea to support felony conviction)
- Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999) (organized-criminal-activity requires proof of intended continuity/continuing course)
- Hart v. State, 89 S.W.3d 61 (Tex. Crim. App. 2002) (continuity requirement exceeds single-act or joint-action proof)
- Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013) (possession or exhibition of a deadly weapon can facilitate the felony; exhibition need only be consciously displayed)
- Patterson v. State, 769 S.W.2d 938 (Tex. Crim. App. 1989) (use = employment of weapon to achieve its purpose; exhibit = conscious display)
- Thomas v. State, 821 S.W.2d 616 (Tex. Crim. App. 1991) (weapon need not be capable of causing death to be a deadly weapon if manifestly designed for that purpose)
- Jones v. State, 373 S.W.3d 790 (Tex. App.—Houston [14th Dist.] 2012) (written confession approved by the court can substantiate a guilty plea)
- Keller v. State, 125 S.W.3d 600 (Tex. App.—Houston [1st Dist.] 2003) (judicial confession/stipulation suffices to show use of a deadly weapon)