Robinson v. State

eign concerned, writ). commerce is it is un- Highway Department If the acted doubtedly operating in an area largely illegally, wrongfully, beyond its statu by agreements controlled and treaties ne- tory authority, sovereign immunity is un gotiated by the government. central available and the suit is against not one state. (emphasis added). Id. at 529 By quoting part of the above context, statement out of summary movant, As judgment appellee contends that construction high Highway Department established its en ways by the state is a proprietary function. titlement to sovereign immunity by show disagree. Texas Highway in Comm’n agency it was an exercising of the state volved a challenge to a Highway Texas governmental functions. showing This Commission Minute Order that limited the negate sufficient to ATSF’s claim that field of bidders on construction contracts to appellee was performing proprietary func suppliers materials offering domestically tions. ATSF did not claim appellee manufactured materials. Id. at 526. The illegally acted beyond its statutory au court held this order invalid as violative of thority, movant, appellee was not competitive bidding statute. 530. required negate a claim that did ATSF In reaching decision, the court noted not raise. Houston v. Clear that this against state, was not a suit 671, Creek Basin Authority, 589 S.W.2d 531, Id. at apparently affirming the court (Tex.1979). We find appellee appeals holding that sovereign immunity met summary judgment its proof burden of inapplicable Highway where the Commis and we overrule of error one and beyond sion acts its statutory authority. two. See Texas Importers, Ass’n Steel Inc. v. Comm’n, Highway 749, Texas 364 S.W.2d We affirm judgment of the trial 752 (Tex.Civ.App. Austin), aff'd, 372 — court. (Tex.1963).

S.W.2d 525 The court’s classifi highway cation of pro construction as a

prietary function is limited to the Highway

Commission’s involvement with foreign

commerce. Highway Comm’n, Texas

S.W.2d at 529. general that, rule is as an ROBINSON, John Appellant, Robert

agency state, the Highway Depart performs governmental ment function in the construction and maintenance of state Texas, Appellee. The STATE of highways. State, Powell v. 118 S.W.2d 05-88-01116-CR, Nos. 05-88-01117-CR. 962 (Tex.Civ.App. writ —Austin ref’d); State, Gotcher v. 106 S.W.2d Texas, Court of 1104 (Tex.Civ.App. writ); —Austin Dallas. (Tex. Martin v. Civ.App. ref’d). Paso Fur Dec. 1989. —El thermore, against a suit agency a state Rehearing Denied Jan. performing governmental functions is a Discretionary Review Granted against suit the state. Hill v. Texas Water 18,1990. April Board, Quality (Tex. Civ.App. n.r.e.). writ ref’d —Austin If Highway Department properly per

formed their duties within its au

thority, may rely upon it the doctrine of

sovereign immunity since ATSF failed to

obtain state legislative permis consent or

sion to sue. See Allen (Tex.Civ.App. —Houston Anton, Dallas, appellant.

Bruce Davis, Dallas, appellee. G. Donald WHITHAM, BAKER and Before OVARD, JJ.

OPINION OVARD, Justice. appeals his convic-

John Robert Robinson with intent to tions of unlawful analogue of a controlled sub- deliver an 4476-15, also known as stance under article Substances Act.1 the Texas Controlled Supp.1989). art. references hereafter Civ.Stat.Ann. 1. All textual Act, Tex.Rev. Texas Controlled Substance 3.10(a).3 complains in in year Robinson received a five sentence case, “analogue” “definition” of the word each as well as fines of and the $1500 3.10(a); however, Robinson, in three contained $1250. objects that to is contends that section 3.10 of the Act is definition Robinson actu- 1.02(5)(A). impermissibly vague ally and contained in section overbroad constitutions, both state and federal that argues portion Robinson that the of sec- delega- section 2.09 is an unconstitutional 3.10(a), tion which treats a substance with legislative authority judiciary tion of the substantially a chemical structure similar constitutions, under the state and federal illegal, to that of a controlled substance as and that there is no evidence to the unconstitutionally vague, argues lie possessed finding drug that the Robinson that, specific definition of without more 4-methylenedioxy was an similar,” “substantially much discretion too amphetamine.2 We affirm. prosecuting is left to the authorities the The case was submitted to trial court determine which substances are similar to evidence, stipulated on summarized as controlled ones and which are not. More- fol- over, proper lows: Robinson was arrested the Dallas that a defini- similar,” Department night “substantially Police outside a tion of refer- club on when 19, 1988, substances, February ring after he sold a tablet of to chemical should address 4-methylenedioxy ethamphetamine degree discrepancy such variables as the (MDEA “Eve”) weights an in in or undercover officer valences and atomic allowable $25; determining similarity, im- selling Robinson was observed whether mirror structure,” plastic baggies ages tablets in to several other constitute a “similar and arrest; persons prior analysis weight similarity whether atomic is mea- to his the report by relative the Southwestern Institute of sured absolute terms weight. Forensic Sciences stated that the tablets' 3, 4-methylenedioxy ethamphetamine, were In fault with the addition to 4-methylenedioxy am- similar,” “substantially words as used to

phetamine. analogues, structural describe difficulty the definition of “ana- his first Robinson ar- finds gues logue.” “analogue,” imper- that section 3.10 of the Act is Robinson claims 3.10; missibly vague inadequately in section and overbroad under both is defined however, misplaced Spe- the Texas and federal constitutions. Robinson’s focus is be- words, cifically, points language the “controlled substance to the cause analogue” actually defined in sections “substantially similar” used to describe “a Nevertheless, (B).4 1.02(5)(A) analogue” controlled mentioned Robin- substance substantially designed produce of error in a an effect Robinson raised the same to, than, against greater civil forfeiture action commenced him the effect of a similar through pursuant to sections 5.03 5.08 of I of this Act controlled substance in Schedule Currency Act, $1462.00 in U.S. Penalty Group part Act. I of this all or consumption, which is intended for human den.). prosecution The civil forfeiture resulted purposes of this Act as shall be treated for of which this from the same set of facts out Penalty Group I of a controlled substance in Although unlawful action arises. added). (Emphasis this Act. drug a civil note that a forfeiture action is constitutionality or 4. We do not address the proceeding consequences and civil alleged of section definitional deficiencies prosecution present case we address a criminal 1.02(5)(B) concerning of substances the effects penalties, we consider the ratio- with criminal stipulated and record because the evidence holding opinion of the civil forfeiture nale and similarity present evidence as to the structural very persuasive authority. Id. at 18-22. compared that of other controlled of Eve as substances, concerning present art. 4476-15 § no evidence 3. Tex.Rev.Civ.StatAnn. specifically Supp.1989) provides: effects of Eve with those of other controlled substances. analogue, the chemi- A controlled substance any part pass validity substantially Court cannot cal structure of which is similar Act which is not the Controlled Substance to the chemical structure of a controlled sub- violated, decide Penalty been nor can we shown to have in Schedule I of this Act or stance Group specifically a broader basis than the constitutional issues on I of this Act or which was 174, 176, 189, 190, Dictionary 97 L.Ed. 200 son contends that Webster’s 773-74; Bynum, “analogue,” (1952); incompletely definition brief, quoted in his en- Ybarra would be more

lightening pet.). definition. Because of the al- (Tex.App.—San Antonio leged definitional deficiencies and ambi- Furthermore, First Amendment because surrounding 1.02(5)(A) and guity sections have rights been violat have been shown Act, Robinson concludes ed, must the statute show guess its public is left to as to criminal fashion as operates in an unconstitutional encourages liability and that the statute to him. Proof that the statute unconstitu arbitrary and erratic arrests convic- tionally hypothetically harms others or tions, vague- rendering the statute void Village is unconstitutional insufficient. Papachristou v. Jackson- ness. Estates, 494-96, at 102 U.S. 455 Hoffman 162, 843, ville, 405 U.S. 156, 839, 92 S.Ct. 1191-92; Bynum, at 767 S.W.2d at S.Ct. (1972). 31 L.Ed.2d 110 774. contends that section specific lack of definitions of The 3.10(a) unconstitutionally is both overbroad in phrases or contained statutes does words vague. first address Robinson’s We unconstitutionally not make the statutes type contention. This stat overbreadth 215; Engelking, 750 To vague. S.W.2d at normally al utory attack is reserved for State, 707, (Tex.App. var v. 685 S.W.2d 708 See, leged First Amendment violations. ref’d.). 1984, pet. A is —Dallas statute not Hill, 451, e.g., City v. Houston 482 U.S. unconstitutionally appli if vague, after 2502, (1987) (dis 107 S.Ct. 96 L.Ed.2d 398 well-accepted statutory canons cation cussing facial invalidation of statutes based construction, given can a the statute overbreadth); Village of Hoffman upon meaning. Bynum, 767 at clear S.W.2d Flipside, Estates, v. Estates 455 Hoffman ordinary, Applying plain, and well 774. 489, 1186, 102 71 L.Ed.2d 362 S.Ct. meanings, referring as as well (1981) (discussing prerequisites to over- dictionary statutory to construe definitions State, Bynum attacks); v. 767 breadth terms, are two such canons of (dis (Tex.Crim.App.1989) S.W.2d 772 State, Floyd v. construction. cussing applicability of chal overbreadth dism’d, (Tex.Crim.App.1978), appeal 23 lenges). fails Because Robinson to show 2817, 61 L.Ed.2d 272 442 U.S. 3.10(a) proscribes how section inhibits or State, (1979); Smithwick v. protected speech or conduct under First (Tex.App.—Austin pet. 234 Amendment, his contention section ref’d). unconstitutionally is overbroad is Bynum, merit. without 767 S.W.2d at “substantially” words sufficiently defined in dictio “similar” are vagueness challenge is well-accepted naries and have such mean laws, applicable to all criminal because singularly use in combi ings that their give crimes must be defined in advance to presents they nation claim that are individuals fair notice of what activities Bynum, vague indefinite. forbidden, pro which is essential to due 774; Floyd, 575 at 23. The word S.W.2d See, e.g., Bynum, 773; cess. 767 S.W.2d at “analogue,” though used much nor as State, Engelking v. 750 215 S.W.2d meaning as the having well-accepted such a State, Earls v. (Tex.Crim.App.1988); “similar,” “substantially” or is also words (Tex.Crim.App.1986). The S.W.2d fact, in defined dictionaries. focusing pro inquiry, upon first in due dictionary of “ana upon a definition relies the ordi analysis, cess fairness whether quoted in although incorrectly his logue,” re nary, law-abiding individual would have brief, argument his her sufficient information his ceived unconstitutionally “analogue” term violating criminal law. conduct risked Currency v. See, in U.S. Cardiff, vague. e.g., $1462.00 United States State, (Tex.Crim.App.1977). requires. S.W.2d Threlkeld v. which, manner (Tex.App. weapon deadly use, denied) capable or intended (noting misquoted, mis of its use Moreover, injury. Al- causing bodily death or serious leading analogue). definition of though our research has failed to disclose a proper claims that a definition of upholding vagueness a constitutional “analogue” should include references to va case lences, challenge Texas Penal weights, images, mirror Code 1.07(a)(ll)(B), the absence of such a suc- weights. absolute or relative atomic together challenge with the suggested cessful conclude that definitions given legislature in draft- rather than deference appellant would confuse citizen, in law-abiding weighs statutes favor of the consti- average, aid with tutionality deadly weapon definition. degree, determining chemistry out a analogues of con which substances are to strike also Court State, 714 Briggs trolled substances. as unconstitutional because 1986), potential prosecutorial abuse grounds, 740 S.W.2d 803 vacated on other treating certain substances as “substantial (Tex.Crim.App.1987); Pope v. substances, ly similar” to several controlled —Houston penalty ranges. each different dism’d, ref’d), pet. cert. [14th Dist.] out, This, give the Robinson would L.Ed.2d 7 105 S.Ct. discretion prosecuting authorities unbridled (1984). we conclude that range under to penalty to choose the which “similar,” “substantially,” use of the terms State, 718 Adley indict. “analogue” independently or in con argu (Tex.Crim.App.1986). This junction in sections with each other an ment assumes that a substance can be 1.02(5)(A) 3.10(a) the Act is not of substance; analogue to more than one vague unconstitutionally indefinite. however, in the record there is no evidence hold that the use of Consequently, we To alleviate this contention. provided terms sufficient notice to those record, deficiency this in the Robinson Robinson that his of Eve was Court, argu solely in his oral urges this a controlled possession of an of briefs, judi supplemental to take ment and State, 711 Mustard v. substance. allegedly judi notice of certain facts cial ref’d), (Tex.App. pet. court. Grin cially noticed another See denied, cert. Admin., 828 spoon Drug Enforcement (1987). L.Ed.2d 222 Cir.1987). (1st Specifically, Robin F.2d 881 urges judicially notice the son this Court to argues that of Robinson section substance, MDMA, a controlled fact that unconstitutionally vague and the Act is twenty-eight analogues, some has pro- there are other overbroad. at 895. In Grin- legal, illegal. some and the Penal visions of Texas statutes one doctor’s spoon, the court “discussed” are, equally vague or arguably, Code which case, In our findings to that effect. overbroad, Specifically, if not more so. proof as to the made no offer of 1.07(a)(ll)(B), de- Texas Penal Code section “ illegal legal and ana of other existence weapon,” ‘Deadly states: fining “deadly urge the trial MDMA nor did he logues of that in the man- weapon’ anything means: those facts. judicially notice court to use, capable or intended is ner of its use bodily injury.” causing or serious death notice of taking The 1.07(a)(ll)(B) (Ver- may either adjudicative facts certain § Tex.Penal Ann. Code 1974). language arguably is discretionary mandatory. non This Tex.R.Crim. (d) (Vernon Pamph. lan- vague Special if not more so than the equally Evid. 201(c), court, 1989). discretionary complains is when the guage It its statu Treating compound a to exercise sponte, of the Act. decides sua facts. notice certain substantially tory right judicially similar chemical struc- with a Special listed, controlled sub- Tex.R.CRIM.Evid. ture to that of a 201(c) mandatory when the appli- Pamph.1989). It is probably an an stance as request presented with both treating court is vague language than cation of less Penix v. as well. right supplied exercise the and the court is necessary Worth information. Tex.R. —Fort 201(d) (Vernon Special Pamphlet judicially pet.) (failing to notice records CRIM.Evid. 1989). Robinson, argu- solely in his part appellate oral court not of another ment, this urges judicially Court to notice Fisher v. review). But see allegedly court matters noticed another Westinghouse Corp., Credit well as information contained n. index, Merck index. Merck tables); writ) (judicial notice of interest rate Court, containing index informs this is an 201(b)(2). Robinson’s con- Tex.R.Crim.Evid. chemicals, various information chemical Accordingly, merit. tention without structures, of chemical use. effects point of error is overruled. one Physician’s this to the analogizes He index in his second Robinson claims Reference, well-accepted Desk medical a trial must hear judge error that because if what reference book. Even “effect” of a evidence and evaluate the true, judicially Court cannot 3.10(a), legisla- substance under mandatory notice those facts under unconstitutionally delegated legis- ture has provision has failed to because Robinson reserved in authority, lative section 2.09 supply copy this Court with both commissioner, to the judiciary. How- Grinspoon case and the Merck index. ever, on the Robinson was convicted Therefore, satisfy failed Robinson has grounds possessed he the substance prong provision the second which specifically designed produce “... taking judicial would make notice mandato- to, substantially greater similar effect 201(d) (Vernon ry. Spe- Tex.R. CRIM.Evid. than, the controlled substance effect Pamph.1989). cial I Penalty Group this Act or I Schedule of persuade has failed to this Court that the 3.10(a) (emphasis Act of this ...” Section provision discretionary taking judicial for added). prosecuted under applicable notice is the case re- to under 3.10(a) dealing portion the of section with 201(c) (Vernon Spe- view. Tex.R.CRIM.Evid. upon chemical substantial based Pamph.1989). cial structure, not suspected effects of ana- Although appellate may judi- courts take complain of logues. Robinson cannot the cial the appeal, notice for first time on portion constitutionality of a of a statute urged the by conclude that matter Robin- prosecuted or con- with which he was application son does not the mandate of Threlkeld, 558 at 474. victed. S.W.2d We doctrine of notice our facts. point of error two. overrule Moreau, City Dallas v. S.W.2d 718 In his third and final (Tex.App. Corpus 781 Christi — argues that there is no evidence n.r.e.); ref’d Tex.R.CRIM.Evid. support to the trial court’s 201(b)(1), (2) (Vernon Special Pamph.1989) (MDEA ethamphetamine 4-methylenedioxy (contains grounds judicial recognition Eve) 3, 4-methylenedi- is an facts). Furthermore, adjudicative ar- to (MDA). amphetamine assessing In oxy valences, gue weights, and mo- contention, as the evidence” this Court “no composition, lecular ana- used to describe court, reviewing must determine whether logues suspected and controlled sub- light viewing “after the evidence knowledge matters stances are of common any prosecution, ra favorable to the most Garland ex rel. is untenable. trier fact could have found the Louton, tional Mayor v. 726 beyond elements crime essential rev’d 1984), State, 769 reasonable doubt.” Butler v. (1985). Also, to grounds, 691 S.W.2d 603 (Tex.Crim.App.1989) (quot S.W.2d 239 has argue that the contention MDMA 307, 319, Virginia, Jackson v. ing legal, twenty-eight analogues, some (1979)). 560 61 L.Ed.2d readily illegal, some fact ascertainable weigh reviewing duty court’s is not by well-accepted publications, reference already has interpretation of reassess the evidence —that is a strained the doctrine i.e. that MDEA or Eve finder, prosecution, accomplished by the fact who been MDA, position is in the best to do so we hold that the witnesses, their demeanor and supported viewed verdict is more than a “mere Moreno, level. Moreno v. testimony at the trial modicum” of evidence. (Tex.Crim.App. point of at 867. Robinson’s third Jackson, 319-20, 1988) (quoting at overruled. error is Rather, 2789-90). the review S.Ct. judgment. affirm the trial court’s court, the cold record before it, process safeguard serves as a final due Justice, concurring. WHITHAM, factfinder, resolv rationality of the express I I concur the result. write in favor ing any inconsistencies testimonial might it my view that on a different record reviewing If at 867. of the verdict. prosecutor’s be shown that a discretion is irrational or court finds that the verdict range penalty choose the under which than a “mere modi unsupported by more indict conflicts with the Court of Criminal evidence, cum” of the the “no evidence” State, Adley decision in challenge must sustained. (Tex.Crim.App.1986). Robinson was The record reflects that See also Johnson grand jury indicted a true bill of 1985) (Whitham, of a substance indictment rev’d, J., concurring dissenting), analogue of 4- purportedly which is an (Tex.Crim.App.1986). (MDA). The methylenedioxy amphetamine further reveals that Robinson’s own Wimbish, expert, deposition in his of- Dr. motion to

fered in of Robinson’s indictment, MDEA admits that

dismiss MDA structurally similar to

or Eve is

MDMA, I controlled sub- both Schedule addition, admits that stances. Wimbish CORPORATION PARAGON HOTEL Eve, pos- drug MDEA or Spokane Equities, El d/b/a arrest, a struc- at the time of his sessed Hilton, Appellants, Airport Paso ar- tural of MDMA. Robinson gues there is no evidence that because weights valences or atomic to the relative RAMIREZ, Appellee. Lorenzo MDA, there is no MDEA and No. 08-89-00085-CV. MDEA, the effect of he should

proof of challenge. We prevail his “no evidence” Texas, Court of disagree. El Paso. First, note that because our discus- we 13, 1989. Dec. one, number sion under of error Entry Remittitur After Opinion proof of the relative valences hold that Jan. chemicals is not weights of the two Second, Robinson contends necessary. 10, 1990. Rehearing Jan. Overruled mandates that section both structural similarity and analogue and the purported

effects of the closer

controlled substance. reveals that

reading of section disjunctive. in the phrased words, similar- finding of structural the re- similarity in effect satisfies

ity ana- a controlled substance

quirements of 3.10(a). Accordingly, view-

logue. Section light most favorable

ing the evidence

Case Details

Case Name: Robinson v. State

Court Name: Court of Appeals of Texas

Date Published: Apr 18, 1990

Citation: 783 S.W.2d 648

Docket Number: 05-88-01116-CR, 05-88-01117-CR

Court Abbreviation: Tex. App.