*1
court,
poor
alleged
is
to hire a
the indictment.
It is un-
haled into
who
too
stance
lawyer,
assured a fair trial un-
right
cannot be
to be
necessary
inspection
for the
provided
him.” The
less counsel is
for
expansive
many
are
instances
so
as there
to
States
Sixth Amendment
the United
there
no need for such an
will be
provides
fundamental
Constitution
the
example,
investigation.
in cases which
For
right to
assistance of counsel and
effective
dismissed
the
or no-billed
are
right
constitutionally required
that
grand
indigent
has
jury,
the
an
defendant
Amend-
state
under the Fourteenth
courts
alleged
to
the
controlled
inspect
no need
ment
to the United States Constitution.
However,
rea-
when the case is
substance.
The Court stated:
trial,
to
trial
sonably
proceed
certain to
the
From
very beginning,
the
our state
should,
permit inspec-
judge
upon request,
laid
national constitutions and laws have
alleged
in the indict-
substance
great
procedural
emphasis on
and sub-
We
that
to
that an
ment.
believe
hold
safeguards
to assure
designed
stantive
indigent
right
has an absolute
to
defendant
impartial
fair trial before
tribunals
alleged
indict-
inspect the
in the
substance
equal
every
which
defendant stands
be-
ment,
cases,
unduly
in all
could
tax the
fore the
This noble ideal cannot be
law.
County.
financial resources of
poor
realized if
man
Accordingly,
trial court erred in over-
crime
his
without a
has to face
accusers
lawyer
ruling appellant’s
Appoint-
him.
“Motion for
to assist
Investigator/Chemist.”
ment of an
Gideon,
at 796-
portunity present to his defense. by appel- the nature the defense offered grounded signifi- elementary principle, (that was lant the controlled substance part Amend- cant on the Fourteenth planted person), the trial court his guarantee of funda- process ment’s due wrongfully appellant’s “Motion overruled fairness, the belief mental derives from Appointment Investiga- of an where, justice equal sim- cannot tor/Chemist.” poverty, his a defen- ply as result of opportunity partici- dant denied judicial proceed- in a
pate meaningfully liberty stake. ing his is at which that, these cases we conclude From judicial participate meaningfully Ex Parte Houston Paul CROUCH. must have indigent process, 184-92. No. inspection a non-indi right the same sup This gent defendant. conclusion Texas, Appeals of Criminal Court art. ported Tex.Code Crim.Proc.Ann. En Banc. 26.05(a) appointed provides which expenses 1992. be reimbursed counsel shall June investigation and purposes of incurred for Rehearing Oct. Denied 3, supra. n. expert testimony. See inspec- However, right we believe right requiring
tion is not an unlimited inspection of the sub- judge grant trial *2 Act 4.012(b) Substances of the Controlled appeal- 481.107(bHe) Appellant ].
[now post-trial bail one denying ed the order complaining that the trial point of error court misconstrued erred because the court 44.04(b)of the Tex- meaning of Article Procedure as Code Criminal 4.012(b) Sub- the Texas Controlled stances Act. opinion, the Fort Worth published
In a appellant’s Appeals sustained Court of point and reversed and remanded of error setting of bail. Ex to the trial court for Crouch, (Tex.App.— parte 1992). Fort Worth
I. Tex. for review is whether 44.04(b) Code Crim.Proc.Ann. require the denial of should be construed post-trial when a defendant has been bail un- convicted of one of the offenses listed (e), der Tex.Health & Ann., regardless of Safety Code whether repeat felony offender the defendant is a in that statute. as described Tex.Code Crim.Proc.Ann.
states:
Pending Appeal
Bond The defendant not be released on Dallas, McCully, appellant. John T. felony pending any bail from Curry, Atty., Tim Dist. and C. Chris Mar- punishment exceeds conviction where the Ayres, Attys., shall and Susan Asst. Dist. years confinement or the defen- Worth, Huttash, Atty.
Fort Robert State’s of an offense dant has been convicted Horn, Jeffrey L. Van Asst. State’s 481.107(b)through listed under Sections Atty., Austin, for the State. (e), Code, Safety Health and but shall immediately custody discharged. bail Safety Section 481.107 of Health and PETITION FOR OPINION ON STATE’S provides: Code DISCRETIONARY REVIEW Repeat Offenders OVERSTREET, Judge. (a) If on the trial of a defen-
A Houston Crouch of it is shown jury convicted Paul investment, listed under this sec- Tex. dant for an offense the offense of previously defendant has Safety tion that Health & Code Ann. § felony offense under years con- punishment assessed at fifteen $50,000 subchapter, on the defen- Following a conviction finement and a fine. punished by the term of hearing, appellant’s dant shall be the trial court denied imposed and amount of fine post-trial motion for on the basis that confinement of an offense listed under this section. he was convicted (b) section, designated Punishment under 481.107. subsections These laundry in 481.107 list of conviction of an for which the all contain vari- felony drug-trafficking ous offenses imposed is otherwise same, 481.112(d)(1), punishments 481.113(d)(1), one of which ille- 481.- 481.115(d)(1), gal 114(d)(1), 481.116(d)(1), investment of which was con- 481.- *3 opinion in its 117(d)(1), 481.118(d)(1), 481.120(d)(1), victed. The court noted that or ‘Repeat captioned 481.107 is Offenders’ 481.121(d)(1), is confinement in the Texas “§ legislature making apparent that the in- Department Corrections of for life or for repeat tended set for that no bail be offend- years a term of more than 99 not or less only.” ers years, than and a fine not to exceed $100,000. reading The that State contends the (c) section, under Punishment this on provision statute the denies bail where the conviction offense for of an which the defendant “has convicted of an of- been punishment imposed is otherwise under 481.107(b) fense Sections listed under 481.112(d)(2), 481.113(d)(2), Section (e), 481.- through Code”, Safety peri- Health and 481.115(d)(2), 114(d)(2), 481.116(d)(2),481.- od. And the that likewise intent of the 117(d)(2), 481.118(d)(2), 481.120(d)(2), or provision is that “a defendant is to be de- 481.121(d)(2), confinement in is the Texas nied if of convicted Department of Corrections for life or for drug offense or of investment.” It years term of not more than 99 or less argues further the Fort Worth Court years, than 15 a fine not to exceed Appeals placed emphasis of too much on $250,000. “repeat the title of the section offenders” arriving (d) at its decision. section, Punishment under this conviction offense for of an which the hand, Appellant, other on the contends punishment imposed is otherwise under trigger provisions in order the of 481.112(d)(3), 481.120(d)(3), Section or 481.107(b) (e), through satisfy one must 481.121(d)(3), is confinement the Texas (a) provision paragraph the of which re- Department Corrections for life or for quires pre- that defendant must have been years a term of more that 99 or not less viously felony convicted of a offense under years, than 20 a fine not to exceed subchapter. this $500,000. (e) section, under Punishment III. offense for conviction of an which the Statutes should be read a whole and imposed is otherwise under give meaning every part. construed to 481.126(b), is confinement (Section Code.) 312.005 Government The Department Texas of Corrections for life 44.04(b) plain language makes not years or for a term of more than 99 Legislature deny clear that intends to years, or less than and a fine of not punish- felon bail to the convicted $1,000,- $100,000
less or more than years ment exceeds 15 confinement or where the has been defendant (f) person subject prosecu- A who an offense which is listed under 481.- §§ tion under section and Section 107(b) (e), through Safety Health and Code. Code, may prosecuted Penal (e) through Review of in- §§ either section. cludes the offense of which was 481.126(b), illegal
convicted: investment. II. concern While there is much for the “Re- heading statute, peat appeals The court of determined that Ar- Offender” we 44.04(b)’s ticle are not convinced that intent denial bail “where (e) (b) through provisions was that the defendant has convicted of an offense exclusively repeat in a listed be referenced under Sections Furthermore, (e)” where the offender definition. applies only title, subtitle, heading chapter, punished offender sub- repeat as a expand limit or CONCLUSION chapter, or section does not meaning statute. Section 311.024 of a unambigu- clear and a statute is Where Code. Government or courts to add ous, not from it. subtract are construing In we appeals is the court of among things other directed to consider denial of bail trial court’s reversed and the statute circumstances under which the was reinstated. attained, enacted, object sought to be particular consequences
and the of a con- Oliver, See State CLINTON, Judge, concurring. struction. (Tex.Cr.App.1991), and 311.024 statutory provisions judgment, In my above, Applying the Government Code. “clear being far from are *4 persons convicted of first the result unambiguous,” majority opinion, at 255.1 drug-trafficking and invest- degree felony legislative weapons fash- They derive from denied ment of funds from same will be in on Crime” ioned for use “The War This, Legislature upon appeal. bail 268, 696, 2, 1981, Leg., p. Acts 67th Ch. § intended.1 Had it intended appears to have (House 730).2 697, 17, Bill and at 707 at § appellant argues, as the would have 1981, Leg., Ch. implicated Also is Acts 67th enough entirety of simple to include the 276, (House 729).3 in p. 741 Bill As shown (b) opposed 481.107 as to subsections respectively, reasonable ob- § notes 2 and 3 (e) (b) only. through Subsections legislation unable servers close to the were (e) only understanding are the sections the statute a common of to come to putative appellants are listed. those to whom bail was which offenses illegal legislative history 1. Search of the did not direct but not to investment offend- offenders ers). ly purposes illuminate the intent for our here. hearings It is clear from the committee that the waged generally pen "The War on Crime" was with provide 3.That intent was for harsher weapons drug expedite legislative seemed to alties for traffickers and to several bills as judicial process keep drug fighting and dealers from some warriors controlled sub- confuse 730, example, trade. their Denial of bail is consistent with Bill § stances. For ante, 8 of House 1191, Leg., 4.051, proscribing this intent. H.B. 67th 1983. captioned added and § marihuana," possession as well as "Unlawful § of throughout Emphasis opinion here and 4.052, “Illegal investment.” Whereas House mine unless otherwise indicated. The Texas 729, 1, 4.051, captioned Bill also added and § § Controlled Substances Act is sometimes referred proscribing "Delivery controlled substance to of to as the "Act.” resolved, however, (That duplicity was minor." 1983, 425, 2361, 2392, Leg., p. in Acts 68th Ch. at 44.04(b), 2. Section 17 amended Article C.C.P. 16, creating moving "Deliv- § and 4.053 § inserting language the underscored so as to read Minor.”) ery of Controlled Substance to as follows: Meanwhile, rejected 16 of House Bill 730 § “(b) on The defendant not be released adjudication pursuant 3d§ deferred to former any felony pending appeal from con- under for an investment offender exceeds 15 viction where 4.052, as for “an listed in as well § offense years confinement or where the has 4.012(b)§ proscribed Bill § 3 of House any listed under Sec- been convicted of “delivery under its for a to minor” offender Act, 4.012(b), Texas Controlled Substances (That § too was reconciled § 4.051. (Article Vernon's Texas as amended 1983, ante, by precluding §§ Acts both 4.052 Statutes), immediately be but shall Civil adjudication, 4.053 offenders from deferred custody discharged.” the bail along with listed offenders. § upon original enactment of 17 in House § Even 17, however, under § Unlike denial of bail 730, contemporaneously interested com- Bill general agreement 16 of House § there was agree applica- its mentators were unable to adjudication See, denied deferred Bill 730 appeal. e.g., Rep. Bob tion to bail on Maloney 41.12, C.C.P., 3d, aggra- Whitworth, Review, § to former Legislative & Dain Maloney Session, & Whit- vated substance See Regular the Defense 67th 6, 11 Voice for offenders. 42; worth, supra, & Robin 1981) (“No at Knox Jones (July bail allowed for at 41-42 Welch, sentence.”); under the Revised regardless and Penalties repeat H.D. Offenses offenders Act, Wendorf, De- Legislation, Substances 11 Voice for the Controlled The War on Crime: 1981 1981); Wendorf, (Fall 1981) (bail (September su- Baylor fense at 33 L.Rev. at 784 pra, at 784. denied to convicted substance denied, victed, agree pending appeal. To but did which defendants on bailbond precluded adjudication; V.A.C.C.P., from deferred construe Article part, legislative for his while critical of the accordingly of the Act har- latter, bringing manner of about Pro- intent, mony purpose fessor Wendorf entertained no doubt on design. either score.4 reasons, join I For those The common feature in 16 and 17 of the court. Bill
House 730 is the reference to “an 4.012(b),” offense listed in [under] McCORMICK,P.J., CAMPBELL, J., both of which are retained in Article join. 5(d) 44.04(b), respectively. and in Article BENAVIDES, Judge, concurring. 1981, 4.12(a), repealed Until contained prescribing provisions precluding application similar its Our case law methods of certain offenses statutory Act.5 construction is in conflict with expressed I itself. subscribe to the method early From treatment all those related recently in Boykin v. developed pattern issues there thus (Tex.Crim.App.1991), 785-786 wherein legislative intent to withhold otherwise necessarily we affirmed that “we focus our generally from those de- available benefits attention on the literal text of the statute *5 charged guilty fendants with or found question[.]” Accordingly, longer I no controlled substance offenses deemed more accept position, the inconsistent articulated others, i.e., egregious illegal invest- State, recently Dillehey v. 815 S.W.2d ment, delivery aggravated to minor and 623, (Tex.Crim.App.1991), 625 manufacture, delivery possession “[t]he and legislature intent of the must be enforced intent to manufacture or deliver. In its by though may the courts even not be offenses, attack controlled substances entirely consistent with the strict letter of awkwardly expressed albeit somewhat at Oliver, 808 times, bail, statute.” See also State v. permitting pretrial while see 492, Y.A.C.C.P., (Tex.Crim.App.1991). 495 Be- 17.03(b)(2), Legisla- S.W.2d Article cause Government Code section 311.024au- purpose design ture evidenced a to thorizes, require, does not us to consid- deprive major redeeming offenders of such but legislative construing adjudi- history alternatives as release on deferred er when stat- cation, and, utes, discharge I conditional once con- decline to do so the case of 730, “(c) Concluding analysis provisions his of House Bill of Section 3d of this apply Professor Wendorf wrote: do not to a defendant adjudged guilty of an offense under with or topping "What sections could called the [illegal or investment] Section 4.052 4.053 [de- trafficking punitive provisions of the livery to Texas Controlled Substances minor] act amend the Code of Criminal Procedure to (Article Act Vernon’s Texas Civil deny aggravated drug illegal offenders and Statutes), or an offense listed in Section proba investment offenders the court ordered 4.012(b).” proceedings and deferred of Section 2d tion [sic], of the Code of Criminal article 42.12 previously by 5. Not mentioned commentators supplied topping Procedure.168 Then final were restrictions on a trial court the denial of bail on to those con granting discharge" "conditional first con- to (but aggravated drug offenses victed offenders former trolled substance illegal investment denial is not extended to 4.12(a) within Texas Controlled Substance § offenders. See of House Bill 2 of § § Act. 168Id., accomplished by use of 16. This is § excepting aggra- House Bill the former "an many might equivocal, references attack vated offense or an offense under Section 4.052 only technique please hearts of will Act," excepting only the latter "a viola- of this legislative most technical of draftsmen but the subchapter;” of this but Section 4.051 nevertheless, are, apparently intended to denials Act, amending § see also 17 of the 1983 apply aggravated of investment 4.12(a) combining former 9 and fenders.” ante, “except or an Id., But, 3f(c), into amending at 784. [illegal investment] offense under Section 4.052 clearly specifies § 25 of the 1983 Act [delivery (formerly to minor 4.051 in adjudication or 4.053 whom deferred those defendants to viz; denied, 729) House Bill ].” unambiguous on its legislation which is Rather, unambiguous clear and stat-
face. should, my judgment, be construed utes according plain import of their words, regard without to the actual intent Legislature. jurists, “As we are
of the obliged implement expressed will keeps legislature,
our not the will it itself.” Garcia (Tex.Crim.App.1992). context, present In the I consider the language statutory to be rea- susceptible only sonably on its face reading given byit here Court. That
language clearly unambiguously pro- persons vides that convicted of an offense listed in section 481.107 of the Health and
Safety Code shall not be released on an
appeal bond. Art. See V.A.C.C.P. Appellant in Because this case was un- doubtedly just such an of- fense, plain to me he not be pending appeal.
admitted to bail The liter- law; al text here is the it is the definitive intent; and, Leg- evidence of *6 expect islature is entitled to that the Judi- ciary specific will follow text that was
adopted. Boykin,
Hence, judgment, I concur in the but do not think legisla- that further consideration of appropriate. tive intent is Heard,
Harry Longview, R. Lindley. John LINDLEY, Harley Appellant, John Holmes, Longview, appel- L. Clifton Judy Lindley. lant
v. Brabham, Atty., Dist. David C. Patrice Texas, Appellee. The STATE Savage, Atty., Longview, Asst. Dist. Rob- LINDLEY, Judy Appellant, Huttash, Atty. ert State’s Matthew W. Austin, Paul, Atty., Asst. State’s for the State. Texas, Appellee. STATE Nos. 1172-90. Texas, Appeals
Court of Criminal En Banc. OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW 7, 1992. Oct. PER CURIAM.
Appellants Engaging V.T.C.A., Activity. Organized Criminal