Fee v. State

Grinspoon Drug tice of Enforcement Administration, (1st 828 F.2d 881 Cir. ROBINSON, Appellant, John Robert 1987), and will the Merck Index. We af appeals. judgment of the firm Texas, Appellee. The STATE of part of the court We reviewed appeals’ opinion dealing with the merits 183-90, 184-90. Nos. constitutionality of the of the statute and Texas, Appeals of Court of Criminal judicial notice issue.1 We find rea En Banc. soning of court of appeals is sound. adopt opinion therefore We 17, June 1992. own, our without further comment. (Tex. January S.W.2d Crim.App.1987). grounds for are

Appellant’s review over- ruled, and the affirmed. Dallas, Anton, appellant. Bruce BENAVIDES, CLINTON, BAIRD and Atty., Vance, and Donald G. Dist. John JJ., concur in the result. Dallas, Davis, Atty., Dist. Robert Asst. Austin, Huttash, Atty., for the State’s MALONEY, J., participating. not State. PETITION APPELLANT’S ON

OPINION REVIEW

FOR DISCRETIONARY

MILLER, Judge. pled nolo contendere two FEE, Appellant, charging him unlawful with indictments a con possession to deliver Texas, Appellee. STATE analogue. V.A.C.S. Art. substance trolled 4476-15, (repealed, now Health & Sec. 3.10 No. 107-87. 481.123). Upon stipulated Safety Code § evidence, was found En Banc. assessed a the court and was trial before case, in each as well as year five sentence 14, Oct. 1992. ap direct fines of $1500 $1250. of error points raised three

peal, the trial affirmed

and the court judgment. Robinson

court’s We — Dallas grounds appellant’s petition on (1) the court of whether to-wit: phrase ruling

appeals erred unconstitu

“substantially similar” is not in Art. 4476-

tionally vague, as contained

15, 3.10; (2) and whether Sec. failing judicial to take no

appeals erred paragraph. Robinson, full sec- first column p. end paragraph, column ond full Antonio, Langlois,

Richard E. San appellant. Rodriguez, Atty.

Fred G. Former Dist. Hervey, and Charles Strauss Barbara Antonio, Attys., Asst. Dist. San Robert Huttash, Austin, Atty., State’s for the State.

OPINION ON APPELLANT’S PETITION

FOR DISCRETIONARY REVIEW CLINTON, Judge.

Appellant was convicted of the offense of engaging activity. Code, 71.02. Punishment V.T.C.A. fifty years was assessed at confinement penitentiary. Ap The Fourth Court of reformed the to reflect enhanced, and affirmed sentence was conviction. Antonio, 1986). I. alleged that in this cause

The indictment conspire “did ... and six others agree to commit commit and $20,000.00,” commit Theft over specific intent “to seven did so with establish, participate maintain profits in the of a combi- combination and charge tracked the nationf.]” indictment, part, alleges and in the participate 1. The in relevant that: in a combination did then and there AUGUST, of a day on or about the 11TH "... to commit and did THOMAS FEE, of Theft over the criminal offense STEVEN BENJAMIN A. SCOTT MORGAN, agreement pursuance the said of such JERRY LEE JOSE and in follows, TREVINO, JR., performed overt acts as and JAMES HENRY JORGE hereinafter called defen- wit: A.D., AUGUST, dants, together 11TH with others unknown to this On or about the Jury, with intent to maintain Grand member,

indictment, requiring court of thus conviction the evi- men evidence that all seven dence was not insufficient. The court of commit and did commit theft with req- appeals opined: uisite intent to facilitate aims “Pee indictment The indictment not ex- combination. to commit and to have identify plicitly the of the combi- members theft committed combination with six appeal appellant nation. On contended persons. The has satisfied to show the evidence was insufficient requirements the crime three of the six others that by proving statute that Fee and at least jury to find to com- persons carry- four other collaborated mit did commit theft did fact do so. and PE- activity. on the criminal TEX. The court of identified 71.01(A)(2).”2 NAL CODE ANN. § contention, proceeded this then an- but viz: altogether question, an different swer State, supra, to es- whether the evidence was petition discretionary In his review the com- tablish the three were members of contends now The court of concluded bination. erred measure in fact the three were not against requirements evidence of the stat- shown to be members of Instead, ap- urges, he court of ute. evidentiary deficiency held that this evidentiary should have measured Chapter consequence. of no Because sufficiency against the offense it was require not con- Code does alleged in the indictment and submitted a every viction of member of combination prerequisite any jury charge.3 re- as a to conviction of one the factfinder He 2. At the time of supra, read: 01(a)(2), sent of the owner[.]” real $20,000.00 or said property being unlawfully quiring and otherwise had Budd flatbed ate activities, although: tor and THOMASSCOTT exercising change BATES, sons who CHAEL JERRY LEE GAN, 1979 International "In this On or about the 7TH (2) (a) property, namely: deprive said an property, 'combination' means membership JERRY LEE ^[******] aggregate from time to and POLANSKY, property by acquiring- the effective consent of the collaborate in chapter, control over said JOE appropriate in Bexar JAMES HENRY which had an trailer, PIERCE, prosecution in this cause owner, said other than real [sic] value Aztec property in the combination truck without the effective con- deprive did County, A 1983 White truck trac- JORGE MICHAEL time[.]” exercising BENJAMIN A. MOR- day of said carrying property, unlawfully appropri- 110,000.00 more, tractor five more being property Texas, TREVINO, JR., property BENJAMIN A. with the intent property, and otherwise SEPTEMBER, BRASHEAR, control over on criminal owner, trailer, namely: other than or which may per- said 71.- MI- ac- A 3. The authorization to consist five. amended § Since Araujo, jamin Morgan, Jerry ly: ly appropriate Jerry Araujo, otherwise ty, ty combination tion, Trevino, Jr., tent and 1081 structions, ment beyond others unknown hereinafter called Woerner, "on or about the 11th “Now eff. follows, See 11th did reads: Lee A. Sept. Michael a reasonable Thomas Scott to, Thomas Scott Acts cause bearing had said defendants Jr., Pierce, three more Budd flatbed inter if to-wit: Internantional and in 1989, and James you said Polansky, aggregate value of being or maintain and alia, Benjamin A. to this Grand August believe 71st defendants, pursuance of such tried paragraph of control over mind the doubt, redefine "combination" Bates, other than offense of Lee intent to Leg., performed day of persons, Henry A.D., from [sic] Pierce, by acquiring that on Steven ch. statute has commit Morgan, participate in Jury, with in- together with foregoing did unlawful- truck tractor August, James Woerner, 782, real rather a combina- Theft $10,000 or Jose overt Fee, or p. proper- proper- Jose Jose name- Henry agree- about Jorge 3468, A.D., been Ben- than over Fee, acts Jr., in- L. L. find and all six others al- upon opinion in lies our Benson conspired to (Tex.Cr.App.1982). We the indictment both leged this unre- theft. to address commit and did commit Consistent markable, caselaw, in- if often controversial contention. it must be with established 200(c)(3). Tex.R.App.Pro., proves Rule quired further whether the evidence what was and what II. find instructed it must viz: in the indictment all six individuals named conspired to commit and did commit By appearances the court of appeals never addressed this The court of simply orga because question. activity not re nized criminal statute does of all of the com quire conviction members B. any one of them—a to convict bination analytically indistin This cause is established in this Court’s proposition well State, 71.02, guishable Ortega from 668 S.W.2d construing only opinion to date Ortega prose (Tex.Cr.App.1983). 701 was State, 764 S.W.2d 232 supra, viz: Barber v. cuted for credit card abuse. indict here is (Tex.Cr.App.1988) evidence —the knowingly he used the credit requires ment sufficient to convict. The statute specific intent “to card of another with no more than of the existence of combination, property and fraudulently obtain servic either com original Ortega we On submission mitted one of the enumerated offenses es[.]” that, combination, although necessary to was not order to facilitate the or that allege an state a violation of the statute to conspired he with at least one other to services, property an offense he at least intent to obtain both commit such descriptive conjunctive allegation performed pursuant one other an overt act offense, and conspiracy, of an essential element of the to the with intent to facilitate State, disregarded surplusage. as supra, could not be combination. Barber v. (Clinton, J., Thus, Thus, held, the State was bound to dissenting). at 238 prove to both. In a foot appellant committed theft himself is all the an intent obtain jury also observed that the required actus rea on the facts of this note we proof of If had authorized conviction specific case. he did so with the intent services, property and existing to facilitate an he has an intent to obtain thing that “there is no such violated the statute. Id. The evidence and remarked ‘surplusage’ as of the court’s here does indeed seem to establish a viola statute, authorizes a tion of the does not instructions to the Id., n. 10. We found contend otherwise. conviction[.]” original submission evidence matter, But that is not the end of an to a conviction on the basis appeals the court of seems to have be- intent to services. obtain both following lieved. A the trial court’s rehearing, appellant’s in this cause instructions would have been motion however, itself, holding prerequisite as a to conviction to the Court reversed $20,000.00 or more without the effective consent of the owner, you effective consent of the will September, “on or about the 7th Orga- guilty Engaging find defendant Activity the in- nized dictment." Fee, Pierce, Morgan, Jerry Benjamin Lee added.) (Emphasis Trevino, Jr., Jorge and Thomas Scott Joe claimed in intent to Mi- Araujo, the evidence failed to establish Brashear, property, namely: a chael commit and Bates and Woerner White truck tractor and a 1983 Aztec trailer, did not did commit theft. The court unlawfully appropriate prop- did specific question, did hold the address erty by acquiring and otherwise Arau- to establish that evidence was insufficient be- over said control ing jo of the combination. and Bates were members than real which had an (Tex. to show an Nickerson S.W.2d 887 evidence was insufficient ob- Cr.App.1990); The Court obtain services. Arceneaux v. (Tex.Cr.App.1990); served: S.W.2d 267 Jones v. (Tex.Cr.App.1991); proper for the “It was (Tex.Cr. appellant by alleging conjunctively Walker fraudulently prop App.1991). he intended to obtain There is no rational basis to services, proof of erty and either from that rule this cause. deviate would have been sufficient Accordingly, of the court (Tex.Cr. Sidney S.W.2d 679 is reversed and the cause App.1978); Garcia remanded to that court determine wheth- (Tex.Cr.App.1976); Boyd v. shows seven individuals er and it (Tex.Cr.App.1967), commit, alleged to have trial proper court theft, so. committed in fact do finding of either would be sufficient to convict. OVERSTREET, Judge, concurring However, instruct- because dissenting part. part and proper- find both ed it must returning ty and services before majority’s conclusion I verdict, necessary then it that there treat- erred its al- of both means be analysis appellant’s evidence ment and of Otherwise, leged. verdict would However, strongly I dis- sufficiency claim. contrary to law and the be deemed remanding agree with the cause back evidence.” reanalysis. appeals of State, supra, 707. At this Ortega v. already explicit has appeals The of court opinion rehearing juncture the on added insufficient ly stated that evidence was endorsing on fully footnote the observation prove beyond a reasonable doubt is no original that “there such submission conspirators, specifically two of the named thing” surplusage the authorization of com Araujo and were charge. Ortega’s con- paragraph Fee v. bination. reversed, and a of viction Antonio Thus acquittal ordered. incredibly to me be fruitless seems instant cause jury charge for it “to remand to indictment, expressly au and tracked the evidence shows determine whether only in the event the thorized conviction alleged to have seven individuals find that all seven individuals jury should of when the court ... did in fact do so” commit, agreed quite explicitly already said has Clearly this elevated fact commit theft. re was insufficient with proof beyond of the State’s burden spect to of them. necessary minimum to establish violation alleges that I note indictment that the thing But “there is no such of the statute. ” August on about the offense occurred para ‘surplusage’ in the authorization 11, 1983, convicted charge, and since Benson graph The court April sentenced 1984. steadfastly held that Ortega we have opinion its on Decem- published object long does not as the State so dis- Appellant’s petition for ber burden, its that thus enhances jury charge in this Court cretionary review was filed mea evidence will be March February charge. E.g., against Boozer sured has remained here 1988. The cause (Tex.Cr.App.1984); 717 S.W.2d ever “appellate orbit” upper reaches (Tex.Cr. S.W.2d 896 Williams re- no whatsoever since. I see value Stephens App.1985); cause, particularly when the manding (Tex.Cr.App.1986); Marras clearly already quite has court (Tex.Cr.App.1987); Garrett upon re- very which we issue (Tex.Cr.App.1988); decided the as fol- performed overt acts mand. See lows, to-wit: appel- justice, for both the State Surely disposition day the 11TH of AU- lant, by served or about would be better “On GUST, County, in Bexar Tex- in the distant future when rather than now FEE, LEE as, JERRY STEVEN journey into the continues on its this cause MORGAN, PIERCE, A. BENJAMIN and returns appellate space limits of outer L. JOSE for discre- via another to this Court BATES, and JAMES HENRY WOER- filed tionary which will no doubt be NER, JR., deprive the the intent to with the party is dissatisfied whichever POLANSKY, owner, prop- MICHAEL on remand. appeals’ decision truck erty, namely: A 1979 International depths orbiting around lost Years a 1981 Budd flatbed tractor and long space than appellate is more appropriate unlawfully enough. acquiring and otherwise unnecessarily vociferously dissent to I control over said like an bouncing the instant cause around property which had being other than real rather than decid- ping-pong ball over-sized $10,000.00 or aggregate value of properly the issue now when it is be- consent of effective fore this Court. 7TH “On or about the SEP- McCORMICK, Judge, Presiding TEMBER, A.D., 1983, dissenting. LEE JERRY BENJAMIN majority Because the misconstrues what TREVINO, and THOM- JOE JORGE case, I happened has in this must dissent. AS SCOTT engaging was convicted of BRASH- MICHAEL activity criminal and sentenced EAR, A White property, namely: of appeal, fifty years’ to incarceration. On Aztec truck tractor and a 1983 Appeals reformed the San Antonio Court unlawfully appropriate said the to reflect that the ex- by acquiring and otherwise enhanced, sentence was and affirmed. Fee ercising control over (Tex.App. being other than real 1986). granted appellant’s pe Antonio We $20,- which had discretionary for review in order to tition con- without the effective 000.00or Appeals’ holding examine the Court of that ...” sent of the support ap to the evidence was sufficient the tracked the word- pellant’s conviction. in and was submitted of the indictment The indictment that argued the conjunctive. Appellant that the about the 11TH of AU- “... on or par- the insufficient to show evidence was GUST, A.D., 1983, Woerner, Araujo and Bates ticipation of BATES, STEVEN therefore the the combination JERRY specif- BENJAMIN More in its burden. State had failed TREVINO, LEE JOSE JORGE since the argued that ically, appellant JR., and HENRY as conjunctive JAMES in the submitted defendants, to- hereinafter called the State to all seven co-defendants unknown to this of all gether prove participation with others required to Jury, seven, citing Grand Benson v. Ap- participate (Tex.Cr.App.1982). a combination The Court

maintain combination, did to be insufficient found the evidence Bates but Araujo there to co-defendants then and has satisfied commit the criminal of- concluded that “[t]he organized crime requirements and in the of Theft over fense four at least by proving Fee and agreement said statute pursuance of such “conspired to commit” persons carrying those who collaborated challenge the activity.” supra. Appellant does not the criminal a support sufficiency of the evidence review, discretionary In his finding stat- violated the acknowledges Ap- is insufficient that the evidence ute— light peals considered the evidence charge. against measured when statutory sufficiency, argues Benson, supra, we held the evidence appropriately apply failed the standard In the defendant’s con- required by of review insufficient Benson. for retaliation where the State’s the- viction granting appellant’s petition, After a ory of case was that the victim was Court decided Barber jury charge witness” “prospective Barber, (Tex.Cr.App.1989). solely based a verdict authorized suffi Appeals Court of found finding victim was a “wit- on a that the cient to connect three defendants to theory ad- of retaliation never ness”—a theft, but was insufficient evidence there argued by the State. As has vanced nor participated three in a establish often been stated since: other named combination with two defen is correct “We hold that when dants. Barber v. theory presented case — Texarkana sufficiency of the evidence review the this Court noted: light most favorable to the verdict words, “In other the Court of comparing the the indictment evidence to found the evidence insufficient to estab- charge.” incorporated into the Ben- underlying lish existence of com- son, supra, at 715. acquittal Cunning- bination due Later, Boozer v. ham and Navarre two other named [the Therefore, (Tex.Cr.App.1984),the Court elaborated: question defendants]. must is: ‘guilty’ be answered When “Because verdict necessar- only five formed a is actors ily means the found evidence of and those five are it was authorized to on which jointly, any can the convictions of is measured tried of the evidence It given. if one or is follows the defendants stand more if not conform to the acquitted? question We answer the evidence does given, instruction insufficient as affirmative.” Barber v. only verdict matter of law to authorized, (em- which was ‘guilty’ appellant here The contention which phasis original; footnotes and citations that, presents jury since was omitted.) conjunctive, and since the evidence charge in the “Under the trial court’s was insufficient as to defen- case, only instant verdict authorized dants, failed its burden as guilty;’ ‘not in view of the evidence was placed upon the Court’s instruction. restated, jury had the followed the trial Barber, jury In charge instructions, appellant would court’s find that all five named were Boozer, supra, at acquitted.” have been Here, members of combination. 610-611. jury to find that the required the case, previ- In the instant and as noted appellant and six other named defendants applying agreed ously, the court’s “conspired and commit” the of- Barber, exactly the word- determined to the facts tracked fense of theft. law The correct- where the of the indictment. the evidence was sufficient theory conjunctive presented jury to the the State’s ly even indict- acquit- the ease as demonstrated though two of the defendants were evidence, ment, argument. insufficiency in Barber was ted. Furthermore, membership instructed proof of the combi- offense, insufficiency the definition of the here is in the nation. The “conspire the terms “combination” V.T.C.A., provisions

commit” and on the Code, (Defenses 71.03 Ex- Section

cluded). charge, I the evidence and the

Under say

cannot that had the followed the

trial court’s instructions this acquitted. Appellant was

would have been alone,

on trial and it his conduct Even was to scrutinize. Appeals found the

though the Court of partic- to show

evidence insufficient Araujo and the evidence

ipation still sufficient as to Fee for to find both the combination and

appellant’s committing conduct in the overt reasons,

For these I dissent. JJ., WHITE, join

CAMPBELL

dissent. THOMAS,

Garry Lynard Appellant, Texas, Appellee.

The STATE of

No. 109-91.

En Banc.

Oct.

Case Details

Case Name: Fee v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 14, 1992

Citation: 841 S.W.2d 392

Docket Number: 107-87

Court Abbreviation: Tex. Crim. App.