William Randy TAYLOR, Appellant, v. The STATE of Texas, Appellee.
Nos. 62924 to 62926
Court of Criminal Appeals of Texas, Panel No. 1.
Sept. 17, 1980.
On Rehearing Feb. 4, 1981.
612 S.W.2d 471
CLINTON, Judge.
Second Motion For Rehearing Denied Feb. 18, 1981.
Having held that an essential element of the offense of riot under Section 42.02(a)(1) and (b) is that the defendant participate in an assemblage knowing that it is resulting in conduct creating an immediate danger of damage to property or injury to persons, we cannot uphold appellants’ convictions herein unless the charge of the court requires a finding by the jury of said element as a prerequisite to conviction. Cumbie, supra; West, supra. Considering the grave and baleful possibilities of guilt by association, that element should have been clearly spelled out for the jury. Compare Pinkus v. United States, 436 U.S. 293, 98 S.Ct. 1808, 56 L.Ed.2d 293 (1978); Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
The court charged the jury as follows:
Now therefore, if you believe from the evidence beyond a reasonable doubt that in Jefferson County, Texas on or about January 17, 1975, the defendant, ROBERT WAYNE FAULK, did then and there knowingly participate in an assemblage of more than seven persons, the names and identities of those not named in this indictment being unknown to the Grand Jurors, and that while so assembled and acting together, created an immediate danger of damage to property or injury to persons and did then and there commit the substantive offense of Arson by burning the building of A. A. CROSS, there situated, such act of burning being in furtherance of the purpose of the assembly or that the offense of Arson should have been anticipated by the defendant, ROBERT WAYNE FAULK, as a result of the assembly, you should find the defendant, ROBERT WAYNE FAULK, Guilty of the offense of Riot by Arson as alleged in count 1 of this indictment.
The above charge merely required the jury to find that appellant Faulk knowingly participated in an assembly of more than seven persons. It wholly failed to require a finding that he knowingly participated in the assembly after he had gained knowledge that the assemblage had resulted in conduct creating an immediate danger of damage to property or injury to persons. The charge applying the law to the facts in appellant Ferguson‘s case suffers from the same defect. The omission of such essential element from the court‘s charge is fundamental error which requires reversal of the convictions of appellants Faulk and Ferguson. Cumbie, supra; West, supra.
For the reasons stated, the judgments of conviction of all appellants are reversed and the causes remanded.
DOUGLAS, J., dissents.
Norman J. Hoppenstein (Court-appointed on appeal), Roland H. Hill, Jr., Fort Worth, for appellant.
Edward J. Tracy, Jr., Fort Worth (Court-appointed), for appellant on rehearing.
Tim Curry, Dist. Atty., William Kane, Steven Chaney & Charles Roach, Asst. Dist. Attys., Fort Worth, Robert Huttash, State‘s Atty., Austin, for the State.
Alfred Walker, Asst. State‘s Atty., Austin, for the State on rehearing.
Before ONION, P. J., and PHILLIPS and CLINTON, JJ.
CLINTON, Judge.
Indicted for the offenses of delivery of marihuana (Cause No. 62,924), delivery of methamphetamine (Cause No. 62,925) and delivery of a controlled substance named as “cocaine” (Cause No. 62,926), appellant entered a plea of guilty to the charge in Cause No. 62,924 and the jury assessed punishment at confinement in the Texas Department of Corrections for ten years. Having entered pleas of not guilty in Cause Nos. 62,925 and 62,926, appellant was found guilty by the jury of same and assessed punishment in each cause of fifteen years imprisonment.
Original court appointed counsel filed a brief in all three cause numbers in which he stated that the instant appeals are frivolous, but we found that such brief was not in compliance with the dictates of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) or Currie v. State, 516 S.W.2d 683 (Tex.Cr.App.1974) as interpreted in High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978), and abated the appeals so that appellant could be afforded the effective assistance of counsel on appeal.
Thereafter, the same court appointed counsel filed a single brief embracing all causes which presented but a single ground of error relating to the failure of the trial court to charge the jury on entrapment in the “cocaine” delivery case. As the per curiam panel opinion of March 19, 1980,
Represented by new court appointed appellate counsel, appellant advances two grounds of error contending that the trial court erred in accepting his plea of guilty in Cause No. 62,924 because he was not admonished as to the proper range of punishment as required by both
In ground of error number one, complaint is made that the trial court erred in accepting appellant‘s plea of guilty in the delivery1 of marihuana case since he had not been properly admonished as to the prescribed range of punishment for such offense. The record reflects that after appellant entered his plea of guilty, the trial court informed him, inter alia, that the applicable range of punishment for the offense of delivery of marihuana was imprisonment in the state penitentiary for no less than two nor more than twenty years. Of course the applicable range for this offense, a felony of the third degree, is imprisonment in the Texas Department of Corrections for no less than two nor more than ten years. See
Narrowly, then, what we must decide here is whether an admonishment that states a range of punishment by confinement that attends a second degree felony offense substantially complies with the statutory requirement of
The offense of delivery of marihuana in this case was alleged to have been committed May 18, 1978 and the plea was entered February 13, 1979. Thus,
In our judgment, when the only matter about which the accused is to be admonished is the range of punishment, an admonishment that states a range for an offense one grade higher than the offense on trial does not substantially comply with
There is no principled distinction between total failure to speak of punishment and stating a range of punishment which is not applicable to the offense on trial. The function of the admonishment exercise is to assure that facet of due process which requires that the plea of guilty that bases a conviction for a penal offense be “voluntary in the constitutional sense,” Henderson v. Morgan, 426 U.S. 641, 646, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108 (1976).5 As Presiding Judge Onion discerned in Walker v. State, supra, at 718 (Opinion concurring in part and dissenting in part), a voluntary, knowing and understandable plea includes “comprehension not only as to the nature of the charge, but also as to the penalty which can be imposed.” The constitutional requirement presumes ignorance of such matters by the pleading accused; it is satisfied by a complete correct admonishment of the facts of such matters. If it were otherwise the mandate admonishment could be waived or may be avoided by a showing that the accused in truth and in fact knew of the applicable range of punishment at the time he entered his plea. But neither will do for the real purpose of the admonishment is not to test the knowledge and understanding that the accused may have somehow ac-
While not analyzing the admonishment procedure to this extent, the Court in Borrego v. State, 558 S.W.2d 1 (Tex.Cr.App.1977) came to the same conclusion we reach — albeit in the different circumstances disposition of the case was necessarily different. Thus in a plea hearing before the trial court, which was also to assess punishment, the accused was admonished of the range of punishment for a first degree felony instead of the range for a second degree felony — the offense being unlawful possession of heroin, a second degree felony. Implicit in the reversal of the judgment of conviction is a clear determination that the trial court had erred in admonishing the accused “of the range of punishment attached to the offense” of unlawful possession of heroin.6 Also significant is that the Court did not look around for a showing by appellant that he had been “misled or harmed” by the faulty admonishment.7
We sustain this ground of error as to Cause No. 62,924, the marihuana case.
In ground of error number two, appellant contends that he was denied the effective assistance of counsel when his trial counsel enabled the State to impeach him with evidence of two prior arrests for possession of marihuana and burglary. After the jury had found appellant guilty of delivery of both “cocaine” and methamphetamine, appellant took the stand during the punishment phase of the trial in an effort to “prove up” his own eligibility for felony probation. The following colloquy then transpired during direct examination:
Q [By defense counsel]: This alleged sale that took place back in July and in August of 1978, when were you — were you arrested at any time prior to — just before Christmas of 1978?
A: Yes, sir, I was. December the 5th.
Q: And had you ever been arrested before that?
A: No, sir, not on these charges.
Q: Have you ever been charged or convicted of any offense?
A: No, sir.
Q: Felony or misdemeanor or anything else?
A: No, sir, I have not.
Q: Other than a minor traffic violation?
A: That‘s all.
On cross examination, the State sought to impeach appellant with the fact that he had been arrested on two prior occasions for possession of marihuana and “investigation of burglary.” After a somewhat detailed discussion as to whether defense counsel had actually asked the witness if he had ever been arrested prior to December 5, 1978, or had merely asked him if he had been convicted, a review of the court reporter‘s notes revealed that two questions had indeed been framed in terms of previous arrests and not convictions. Appellant then offered to change his own answer to the prior arrest question by volunteering the fact that he had been arrested in June of 1973 for possession of marihuana. The State then brought out the fact that appellant had also been arrested in September of 1973 for “investigation of burglary,” as the witness phrased it.
Appellant now contends that trial counsel tripped open the gate that invited the State to go into the area of his prior arrests, thereby reflecting incompetence of counsel. Absent the questions, argues appellant, the jury would never have heard of his prior arrest record; that they did resulted in
At the outset, we note that trial counsel, though eventually appointed on appeal before his dismissal on remand, was initially retained. In light of the Supreme Court‘s recent decision in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333, (1980) suggesting that the standard of effectiveness for all attorneys in criminal cases is the same regardless of their retained or appointed status, we need not reach the issue, posited in appellant‘s brief, as to whether there was “state action” in the instant proceeding below. See Fitzgerald v. Estelle, 505 F.2d 1334 (5 Cir. 1974) (en banc) and Ex parte Ewing, 570 S.W.2d 941 (Tex.Cr.App.1978).
Though the accused in a criminal proceeding is entitled to the effective assistance of counsel, interpreted by this Court to mean “reasonably effective assistance,” see, e. g., Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977); Williams v. State, 549 S.W.2d 183 (Tex.Cr.App.1977); Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976), we have held that this does not mean “errorless counsel,”8 or counsel judged by hindsight,9 but counsel whose service are gauged by the totality of the representation afforded.10
With the foregoing in mind, then, our own examination of this record reveals that trial counsel, notwithstanding his momentary lapse, diligently and conscientiously represented his client. Originally charged with four felonies, appellant‘s maximum exposure insofar as first degree felonies were concerned was curtailed when trial counsel prevailed on a motion to suppress and worked a dismissal of one such charge. The strategic decision to consolidate the remaining three offenses for one trial resulted in his client receiving concurrent, as opposed to consecutive sentences, at trial level. This record similarly reveals an extensive voir dire examination of the jury panel by trial counsel as well as an intensive cross examination of two undercover narcotics officers whose testimony on direct was extremely damaging to appellant on the issue of guilt. Moreover, this record is replete with objections voiced by trial counsel and sustained by the trial court. It is also somewhat instructive to note that in each instance where such an objection was sustained, trial counsel sought curative instructions and, when given, went on to move for a mistrial thereby protecting his appellate record. We believe that the above is more probative on the issue of trial counsel‘s competence than a momentary lapse as alluded to above. Faced with something less than a pleasing set of facts, trial counsel advanced what appeared to be the only viable defense on the merits of the case — entrapment. It is only where trial counsel fails to raise any defense, assuming of course that the facts permit him to do so, that competence of counsel begins to become a possibility. See, e. g., CLINTON and WICE, supra at 29-32. That the defense was not successful is not indicative of a performance falling below the mandate of the Sixth Amendment. See, e. g., Curtis v. State, 500 S.W.2d 478 (Tex.Cr.App.1973); Williams v. Beto, 354 F.2d 698 (5 Cir. 1965); Smotherman v. Beto, 276 F.Supp. 579 (N.D. Tex. 1967).
Our conclusion that inadvertent invitation did not amount to ineffective assistance is further buttressed by the fact that the jury assessed punishment at terms well below the maximum exposure for each offense: respectively ten years, life or 99 years, and life or 99 years. Restated, we believe that trial counsel‘s opening the door
Finally, in the third case complaint was made in the second brief filed by initial trial counsel that the trial court erred in refusing to charge the jury on the defensive issue of entrapment in delivering what the parties and witness routinely called “coke.” But we need not examine this claim for there is a defect in the indictment that must be assayed in the interest of justice. It alleges, omitting formal parts, that appellant delivered “a controlled substance, namely: cocaine.” We have just held in Crowl v. State, 611 S.W.2d 59 (Tex.Cr.App.1980):
“As such, the indictment in this cause ‘does not allege why [cocaine], a substance not listed by name in a penalty group, is a controlled substance. Therefore, the indictment fails to allege an essential element of the offense and is fundamentally defective.’ Ex parte Wilson, supra, 588 S.W.2d 905 at 909.”
At the time of the instant offense cocaine was not named in a penalty group, though it since has been effective August 27, 1979.
Following Crowl v. State, as we must, the judgment of conviction is reversed and the indictment is ordered dismissed.
The judgment of conviction in the marihuana case, Cause No. 62,924, is reversed and the cause remanded.
The judgment of conviction in the methamphetamine case, Cause No. 62,925, is affirmed.
The judgment of conviction in the “cocaine” case, Cause No. 62,926, is reversed and the indictment ordered dismissed.
ONION, P. J., dissents in Cause No. 62,924.
Before the court en banc.
OPINION ON STATE‘S MOTION FOR REHEARING
ODOM, Judge.
These are appeals from convictions for delivery of marihuana (62,924) and delivery of cocaine (62,926). On original submission both convictions were set aside. It was held that the admonishment at the guilty plea in the marihuana case did not meet the standards of
We first reconsider the marihuana case.
“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
“(1) the range of the punishment attached to the offense;
“...
“(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”
On rehearing the State argues our original opinion drew too sharp a line between compliance and non-compliance, and held that any inaccurate statement of the punishment range is not substantial compliance. The State is correct that there is a large gray area between letter-perfect compliance and total failure to admonish on the range of punishment. Here, the trial court stated the correct minimum punishment, but announced an excessive maximum. The jury, however, was charged on the proper range of punishment, and the punishment assessed was within that range. In this case, unlike Ex parte McAtee, 599 S.W.2d 335 (Tex.Cr.App.1980), appellant did “receive an admonishment with respect to punishment, although not a complete one,” which, under McAtee, “is a prima facie showing of a knowing and voluntary plea of guilty.” On reconsideration we are of the opinion that substantial compliance with
We now turn to the cocaine case, in which we held the indictment fundamentally defective. Overlooked by the briefs on both sides and by the Court, but pointed out on rehearing, was the decision in Bishop v. State, 568 S.W.2d 136 (Tex.Cr.App.1978). That case held that an indictment under the Controlled Substances Act for delivery of cocaine was not fundamentally defective for failure to identify the substance other than as “cocaine,” and that cocaine although not expressly listed as a controlled substance in the Act, was included by necessary implication of the language in
“Appellant‘s contention overlooks the provisions of Article 4476-15, Section 2.04, V.A.C.S. which provides that Schedule II substances shall consist of any of the following substances, however, produced:
“‘(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgoine.’
“There is a similar definition contained in Section 4.02(b)(3)(D) placing cocaine in Penalty Group I of the Controlled Substances Act.
“Where this definition specifically includes any compound or derivative of coca leaves but excludes decocainized coca leaves or extractions which do not contain cocaine there is a necessary implication in the definition that cocaine is a derivative of or preparation from, coca leaves. This inference is strengthened by the prior provision of
Article 725b, V.A. P.C. (1925) which was the predecessor of the Texas Controlled Substances Act where coca leaves were defined as including ‘cocaine and any compound, manufacture, salt, derivative, mixture, or preparation or coca leaves which do not contain cocaine....‘”
On original submission we relied on Crowl v. State, 611 S.W.2d 59 (Tex.Cr.App.1980). The decision in that case, in turn, was based on Ex parte Wilson, 588 S.W.2d 905 (Tex.Cr.App.1979), which firmly established the rule for pleadings in prosecutions under the Controlled Substances Act,
“To state the rule generally, we hold that in a prosecution under the Controlled Substances Act for the manufacture, delivery, or possession of a substance not specifically named in a penalty group but which is otherwise described in a penalty group (for example, an isomer of methamphetamine), such description is an essential element of the offense which must be alleged in the indictment in order to state an offense.” (Emphasis added.)
In cause 62924 the motion for rehearing is granted and the judgment is affirmed.1 In cause 62926 the motion for rehearing is denied.
ONION, P. J., ROBERTS and CLINTON, JJ., dissent in No. 62924.
MCCORMICK, J., dissents in No. 62926.