Charles Joseph CHALIN, Appellant, v. The STATE of Texas, Appellee.
No. 61277.
Court of Criminal Appeals of Texas, Panel No. 1.
Sept. 15, 1982.
On Rehearing Jan. 12, 1983. Rehearing Denied Feb. 23, 1983.
“Walter J. Pink is hereby ORDERED to appear before this Court on the 28th day of April, A.D., 1981 at 10:30 A.M. for a contempt hearing in the above entitled and numbered cause, the Honorable George D. Taylor, presiding.
“The Clerk of this Court is instructed to serve a copy of this Order on the said Walter J. Pink.”
The show cause order is insufficient to inform the petitioner of the аccusations against him. Ex parte Droby, 369 S.W.2d 352 (Tex.Cr.App.1969); Ex parte Gordon, 584 S.W.2d 686 (Tex.1979). The contempt judgment is therefore void.
Although we reserve judgment on whether a trial judge who believes an attorney is not rendering effective assistance to his client during the trial of a case may for that reason hold the attorney in contempt, until it is properly before us, we harbor serious doubt that it is a proper use of contempt powers.
For failure to extend the minimum requirements of due process of law to the petitioner the contempt judgment is found to be void.
The petitioner‘s request for relief is granted.
Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Gary DiBella, Asst. Dist. Attys., Houston, Robert Huttash, State‘s Atty., and Alfred Walker, Asst. State‘s Atty., Austin, for the State.
Before ROBERTS, CLINTON and McCORMICK, JJ.
ROBERTS, Judge.
A jury found the appellant guilty of delivery of “a controlled substance, namely Phentermine, an isomer of Methamphetamine.” The court assessed a punishment of eight years’ confinement.
In his first ground of error, the appellant claims phentermine was not intended to be included in the statutory reference to “Methаmphetamine, including its . . . isomers . . . .”
In his second ground of error the appellant argues that the State‘s application of
The principles of law in this area were set out in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Bouie and another man were convicted of criminal trespass under a statute which made “entry upon the . . . lands of another, after notice from the owner or tenant prohibiting suсh entry,” a misdemeanor. They had not entered “after notice“; they had received no notice that entry was forbidden when they entered, and they were convicted for remaining after receiving notice to leave. After they engaged in these acts, the state supreme court held for the first time that the statute penalized remaining on land after notice to leave as well as entry on land after notice prohibiting entry. City of Charleston v. Mitchell, 239 S.C. 376, 123 S.E.2d 512 (1961), rev‘d, 378 U.S. 551, 84 S.Ct. 1901, 12 L.Ed.2d 1033 (1964). The state cоurt applied this holding retroactively to affirm the defendants’ convictions. The Supreme Court held this was a violation of the Due Process Clause, saying (378 U.S. at 352-355, 84 S.Ct. at 1702) (footnote omitted):
“There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language. As the Court recognized in Pierce v. United States, 314 U.S. 306, 311 [62 S.Ct. 237, 239, 86 L.Ed. 226], ‘judicial enlargement of a сriminal act by interpretation is at war with a fundamental concept of the common law that crimes must be defined with appropriate definiteness.’ Even where vague statutes are concerned, it has been pointed out that the vice in such an enactment cannot ‘be cured in a given case by a construction in that very case placing valid limits on the statute,’ for ‘the objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss. * * *’ Freund, The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 541 (1951). * * *
See Amsterdam, Note, 109 U.Pa.L.Rev. 67, 73-74. n. 34.
If this view is valid in the case of a judicial construction which adds a ‘clarifying gloss’ to a vague statute, id., at 73, making it narrower or more definite than its language indicates, it must be a fortiori so where the construction unexpectedly broadens a statute which on its face had been definite and precise. Indeed, an unforeseeable judicial enlargement of a
criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’ Calder v. Bull, [3 U.S.] 3 Dall. 386, 390 [1 L.Ed. 648]. If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by theDue Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, [283] U.S. 553, 565 [51 S.Ct. 582, 586, 75 L.Ed. 1264]. The fundamental principle that ‘the required criminal law must have existed when the conduct in issue occurred,’ Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. Id., at 61.“The basic due process concept involved is the same as that which the Court has often applied in holding that an unforeseeable and unsupported state-court decision on a question of state procedure does not constitute an adequate ground to preclude this Court‘s review of a federal question. See, e.g., Wright v. Georgia, 373 U.S. 284, 291 [83 S.Ct. 1240, 1245, 10 L.Ed.2d 349]; N.A.C.C.P. v. Alabama, 357 U.S. 449, 456-458 [78 S.Ct. 1163, 1168, 2 L.Ed.2d 1488]; Barr v. City of Columbia, 378 U.S. 146 [84 S.Ct. 1734, 12 L.Ed.2d 766]. The standards of state decisional consistency applicable in judging the adequacy of a state ground are also applicable, we think, in determining whether a state court‘s construction of a criminal statute was so unforeseeable as to deprive the dеfendant of the fair warning to which the Constitution entitles him. In both situations, ‘a federal right turns upon the status of state law as of a given moment in the past—or, more exactly, the appearance to the individual of the status of state law as of that moment * * *.’ 109 U.Pa.L.Rev., supra, at 74, n. 34. When a state court overrules a consistent line of procedural decisions with the retroactive effect of denying a litigant a hearing in a pending case, it thereby deprives him of due process of law ‘in its primary sense of an opportunity to be heard and to defend [his] substantive right.’ Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 678 [50 S.Ct. 451, 453, 74 L.Ed. 1107]. When a similarly unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime. Applicable to either situation is this Court‘s statement in Brinkerhoff-Faris, supra, that ‘[i]f the result above stated were attained by an exercise of the state‘s legislative power, the transgression of the due process clause of the Fourteenth Amendment would be obvious,’ and ‘The violation is none the less clear when that result is accomplished by the state judiciary in the course of construing an otherwise valid * * * state statute.’ Id., 281 U.S. at 679-680 [50 S.Ct. at 453].”
We have recognized and applied these principles of due process. In Ex parte McAtee, 586 S.W.2d 548 (Tex.Cr.App.1979), the State argued that this Cоurt should abandon its consistent rule that a conviction which had been used once to enhance punishment to a mandatory life term could not be used again for that purpose.1 The Court noted that, even if it changed the rule, it would be a denial of due process to apply the new rule retroactively. Id. at 550.
Methamphetamine and its isomers have been in Schedule II of the federal Controlled Substances Act (Pub.L. No. 91-513, Title II, 84 Stat. 1236) from the beginning, and they are there now.
Phentermine, on the other hand, initially was not controlled under any schedule. 38 Federal Register 12127 (1973). In Texas it was controlled under the “Dangerous Drugs Act,” V.T.C.S. Article 4476-14, which made its possession a misdemeanor. The Director of the Bureau of Narсotics and Dangerous Drugs of the United States Department of Justice added phentermine to Schedule IV under the Federal Controlled Substances Act. 38 Federal Register 18014 (1973). He had proposed originally to add it to Schedule III, 38 Federal Register 12127 (1973), but eventually added it to Schedule IV because it met the criteria for that schedule: a lower potential for abuse and psychological dependence than the substances in Schedule III, which (in turn) have a lower potential for abuse and dependence than those in Schedule II.4 38 Federal Register 18014 (1973). The Texas Commissioner of Health, who operates under the same criteria,5 followed the federal lead and put phentermine in Schedule IV under the Texas Act on August 28, 1973. Riddle v. State, 560 S.W.2d 642, 644 n. 2 (Tex.Cr.App.1977). None of these legislative and executive actions could lead one to believe that phentermine would be controlled as an isomer of methamphetamine.6
A judicial voice was added to thе chorus when, on November 2, 1977, this Court de-
So things stood on November 18, 1977, when the appellant delivered 181 capsules of phentermine. The legal landscape was bare of any indication that Section 4.02(b)(6) of the Texas Controlled Substances Act would be construed to include phentermine within the scope of “methamphetamine, including its . . . isomers . . . .” That construction of the statute in Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978), must be called unforeseeable. Therefore it would be a denial of due process to apply it retroactively to any act committed before the date of its delivery.
The judgment is reversed, and the cause is remanded to the trial court with directions to dismiss the indictment.
McCORMICK, J., dissents without written opinion.
Before the court en banc.
OPINION ON STATE‘S MOTION FOR REHEARING
TEAGUE, Judge.
On original submission, a panel of this Court held that the construction of the Tex-
as Controlled Substances Act, see
In its motion for rehearing, the State asserts: 1) the panel opinion allows prosecution for salts, isomers, and salts of isomers of substances set forth in the Controlled Substances Act only after a judicial edict that such variations of a designated substance are included in the Act‘s proscriptions, resulting in an untenable result; 2) there is no showing in the record that appellant knew that the substance he delivered was “phentermine“, let alone an “isomer of methamphetamine“, so lack of notice, pre-Ashcraft, is not relevant; and 3) Ashcraft was not an unforeseeable construction of a plain, unambiguous, and narrowly-drawn statute, such that it amounted to “judicial legislation.” The State thus argues that Bouie v. City of Columbia, supra, is inapplicable to this cause.
We disagree with the State‘s arguments and will overrule its’ motion for rehearing.
Resolution of the issues raised in this cause requires analysis of ex post facto law, and a review of the Controlled Substances Act as it pertains to the substance phentermine.
Although the ex post facto clause of the
Ex post facto considerations come into play when legislation or judicial action detrimentally affects a person, and the legislation or judicial action relates to acts of that person committed before the legislation came into force or before the judicial action occurred. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). These considerations affect only substantive, not procedural, matters. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In other words, legislation and judicial action may not retroactively subject a person‘s actions to criminal prosecution, see Bouie v. City of Columbia, supra, and may not retroactively subject criminal actions to a potentially more onerous punishment, see Weaver v. Graham, supra, but may change the procedures whereby it is determined whether a person has committed a criminal act, or what punishment is appropriate, see Dobbert v. Florida, supra.
Judicial action must be analyzed for its ex post facto effect where a court interprets narrow and precise legislation in a manner which cannot be reasonably foreseen, Bouie v. City of Columbia, supra, or when a court is interpreting legislation that is broad and sweeping in its language, such that judicial interpretation is necessary to define its boundaries, and a subsequent opinion expands the bоundaries set out in the previously controlling opinion beyond what could be reasonably foreseen. Marks v. United States, supra. In a similar vein, legislation which is unnecessarily complex, such as the Controlled Substances Act, frequently requires judicial interpretation to define what actions are covered within its language, as is demonstrated by this Court‘s opinions in Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App.1977); Lumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977), and Ex parte Ashcraft, supra.
Both Riddle and Lumberas, supra, held that, as of August 28, 1973, neither possession nor delivery of phentermine was subject to any penalty. However, Ex parte Ashcraft, supra, effectively overruled both Riddle and Lumberas, supra, holding that possеssion or delivery of phentermine could be prosecuted as an isomer of methamphetamine if such was both alleged and proved. Appellant in this cause delivered 181 capsules of phentermine after we issued our opinions in Riddle and Lumberas, supra, but before Ex parte Ashcraft, supra, was decided.1 To decide this cause it is thus necessary to ask the question: Could appellant have reasonably foreseen the holding in Ex parte Ashcraft? The answer to this question: A resounding NO.
II. FORESEEABILITY OF ASHCRAFT
The Controlled Substances Act came into effect on August 27, 1973. On that date phentermine was not listed by namе in either the Dangerous Drug Act, Art. 4476-14, V.A.C.S., or anywhere within the Act, although it was indirectly included in the Act as an isomer of methamphetamine. Isomers of methamphetamine were, and still are, included under Schedule II, subsection
It is well settled that when a general provision conflicts with a special or local provision, the special or local provision controls unless there is a clear indication that the general provision is to prevail. Ex parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.1976); Art. 5429b-2, Sec. 3.06, V.A.C.S. (The Code Construction Act). Thus, when both a proscription for a general class of acts, such as theft, and one for a specific form of that general class of offenses, such as welfare fraud, conflict as to the range of punishment, the more specific statute will prevail. See Tawfik v. State, 643 S.W.2d 127 (1982); Williams v. State, 641 S.W.2d 236 (1982); Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977).
An analogous situation exists within the Controlled Substances Act, in that different controlled substances are deemed to constitute varying degrees of harm to society in their illicit uses, so differing punishments are authorized for the illicit use of the various controlled substances. When the Commissioner of Health classified phentermine by name within Schedule IV, phentermine was determined to be less harmful than the general class of isomers of methamphetamine listed in Schedule II. It was therefore reasonable to believe that possession and delivery were not to bе punished as isomers of methamphetamine, despite the failure to list phentermine within any Penalty Group. The failure to include phentermine within a Penalty Group cannot necessarily be viewed as a mere oversight, in that by its inclusion within a Schedule, phentermine became a controlled substance, Sec. 2.01, bringing it within the controls established by Subchapter 3 of the Act, and creating offenses involving it under Sections 4.08 and 4.09.
Thus, a reasonable interpretation of the law subsequent to the inclusion of phentermine within Schedule IV, but prior to Ex parte Ashcraft, supra, was that delivery of phentermine was not an offense2 and possession of phentermine was an offense, but with no penalty,3 except as it may have related to commercial, see Sec. 4.08, or fraud, see Sec. 4.09, offenses. The Court‘s opinions of Riddle and Lumberas, supra, serve to support such a view of law.4 The holding of Ex parte Ashcraft, supra, therefore, could not have been reasonably foreseen by the appellant.
III. ACTUAL KNOWLEDGE OF THE STATUS OF THE LAW
We do not believe it matters whether appellant had actual knowledge of the status of the law at the time hе delivered the methamphetamine because of the following principle of law:
The determination whether a criminal statute provides fair warning of its prohi-
IV. FAILURE TO SPECIFICALLY NAME A SUBSTANCE WITHIN A PENALTY GROUP
The failure to specifically name a substance within a Penalty Group does not prevent prosecution for its delivery or possession if it is otherwise included in a Penalty Group, provided the reason it is included is both alleged and proved, see Wilson v. State, supra, unless the substance is specifically named in another Schedule or Penalty Group. It is only in the latter situation that a judicial decision, (that notwithstanding its inclusion in a Schedule, the failure to specifically include a controlled substance in a Penalty Group allows its prosecution under a broader, general classification), must be limited so that it does not serve as an ex post facto law.
V. OUR CONCLUSION AND HOLDING
In light of the foregoing, due process of law does not allow prosecution for possession or delivery of phentermine under Sections 4.03 and 4.04 of the Controlled Substances Act, if the offense occurred between the time when Riddle and Lumberas, supra, were decided and when Ex parte Ashcraft, supra, was decided.
We therefore find that the panel opinion was correctly decided. The State‘s motion for rehearing is overruled.
W.C. DAVIS, McCORMICK and CAMPBELL, JJ., dissent.
Jesus Alarcon RODRIGUEZ, Appellant, v. The STATE of Tеxas, Appellee.
No. 62060.
Court of Criminal Appeals of Texas.
Sept. 15, 1982.