Boykin v. State , 1991 Tex. Crim. App. LEXIS 204 ( 1991 )

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant, Curley James Boykin, was charged with, and a jury found him guilty of, delivering a simulated controlled substance while expressly representing that substance to be cocaine. Tex.Rev.Civ.Stat. art. 4476-15b, § 2(a)(1) (1983 Tex.Gen.Laws 1614-1615, ch. 306, § 2). The trial court assessed punishment at imprisonment for ten years. The Fourteenth Court of Appeals reversed, holding that the evidence adduced at trial was insufficient to prove appellant expressly represented the substance to be cocaine. Boykin v. State, 779 S.W.2d 134 (Tex.App.— Houston [14th Dist.] 1989). We granted the State’s petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(1), in order to consider whether the evidence was indeed insufficient. To answer this question, we must determine whether, under Article 4476-15b, § 2(a)(1), a representation involving only slang terminology can ever be an express representation. In other words, the evidentiary sufficiency question is, in this context, actually a question of statutory construction. We will affirm the judgment of the court of appeals.

Viewed in the light most favorable to the verdict, the evidence at trial established the following: At approximately 7:00 p.m., May 28, 1988, an undercover police officer was driving an unmarked vehicle down McNeil Street in Houston when appellant, who was standing alongside the street, motioned for him to pull over. The officer drove to the side of the street and stopped. Appellant then walked up to the vehicle and asked the officer what he “needed”. The officer responded that he needed to buy a “ten-cent rock”. Appellant told the officer that he had only “twenty-cent rocks” for sale. The officer then agreed to buy a twenty-cent rock and gave appellant a twenty-dollar bill. Appellant left and returned shortly thereafter with a rock-like substance, which he displayed to the officer. The officer accepted the substance and left the area. Subsequent chemical analysis revealed the substance to be soap. The evidence at trial established also that at the time of the offense, in certain parts of Houston, cocaine was referred to as “rock”, “stone”, “coke”, or “crack”, “de-pendpng] on the area of town” one was in.

The court of appeals held the evidence insufficient to prove appellant’s guilt under Tex.Rev.Civ.Stat. art. 4476-15b, § 2(a)(1), which was, as noted previously, the statutory provision under which appellant was charged and tried. The court of appeals explained:

The state has the burden of proving each and every element of the crime beyond a reasonable doubt. Because an element of the offense charged in this case was that appellant “expressly represented the substance to be a controlled substance, namely cocaine,” the state had the burden of proving this beyond a reasonable doubt. Even viewed in the light most favorable to the prosecution, the evidence in the record is insufficient to establish that the appellant expressly represented the substance to be cocaine. The record reflects that the appellant used the term “rock,” apparently a street name for cocaine, which constituted a representation, under § 2(a)(2), that would lead a reasonable person to believe the substance to be a controlled substance. The appellant, however, was not charged with committing the offense of - delivery of a simulated controlled substance under the circumstances described in § 2(a)(2).

Boykin, at 136 (citations and some punctuation omitted).

At the time of the alleged offense, Article 4476-15b¹ provided in relevant part:

§ 1. DEFINITIONS. In this Act:

(1) “Controlled substance” has the same meaning as given that term in Section 1.02, Texas Controlled Substances Act....²

(2) “Deliver” or “delivery” means the actual or constructive transfer from one person to another of a simulated controlled substance ...

******

(4) "Simulated controlled substance” means a substance that is purported to be a controlled substance, but is chemically different from the controlled substance it is purported to be.

§ 2. DELIVERY PROHIBITED.

(a) A person commits an offense if the person knowingly or intentionally ... delivers a simulated controlled substance and the person:

(1) expressly represents the substance to be a controlled substance [or]

(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance.

(Emphasis added.)

In its brief to this Court, the State argues that the evidence at trial did show that appellant expressly represented the substance in question to be cocaine. The State contends that slang terms “are frequently as specific in their meanings as [is] the scientific nomenclature utilized by chemists and the Texas Legislature [in the Controlled Substances Act]”, and that, therefore, it is sometimes possible for a person to expressly represent a substance to be a controlled substance simply by using slang terminology. The State concludes that the evidence at trial was sufficient to support appellant’s conviction because there was some evidence that, at the time and place in question, “rock” was an accepted term for cocaine.

In his response brief, appellant contends that a representation of a substance as a controlled substance is express, for the purposes of Article 4476-15b, § 2(a)(1), only if that representation involves use of a term listed in the Controlled Substances Act.

The issue presented is, then, whether Article 4476-15b, § 2(a)(1), criminalized representations involving only slang terminology.

Statutory Interpretation

When we interpret statutes such as Article 4476-15b, § 2(a)(1), we seek to effectuate the “collective” intent or purpose of the legislators who enacted the legislation. Camacho v. State, 765 S.W.2d 431 (Tex.Cr.App.1989). We do so because our state constitution assigns the lawmaking function to the Legislature while assigning the law interpreting function to the Judiciary. See Tex. Const, art. II, § 1.

When attempting to discern this collective legislative intent or purpose, we necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment. We do this because the text of the statute is the law in the sense that it is the only thing actually adopted by the legislators, probably through compromise, and submitted to the Governor for her signature. We focus on the literal text also because the text is the only definitive evidence of what the legislators (and perhaps the Governor) had in mind when the statute was enacted into law. There really is no other certain method for determining the collective legislative intent or purpose at some point in the past, even assuming a single intent or purpose was dominant at the time of enactment. Yet a third reason for fo-cussing on the literal text is that the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted.

Thus, if the meaning of the statutory text, when read using the established canons of construction relating to such text,³ should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning. Smith v. State, 789 S.W.2d 590, 592 (Tex.Cr.App.1990). “ ‘Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.’ ” Coit v. State, 808 S.W.2d 473, 475 (Tex.Cr.App.1991) (quoting Ex parte Davis, 412 S.W.2d 46, 52 (Tex.Cr.App.1967)).

There is, of course, a legitimate exception to this plain meaning rule: where application of a statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended, we should not apply the language literally. Faulk v. State, 608 S.W.2d 625, 630 (Tex.Cr.App.1980). When used in the proper manner, this narrow exception to the plain meaning rule does not intrude on the lawmaking powers of the legislative branch, but rather demonstrates respect for that branch, which we assume would not act in an absurd way.

If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative inter-pretations of the statute or legislative history.⁴

This method of statutory interpretation is of ancient origin and is, in fact, the only method that does not unnecessarily invade the lawmaking province of the Legislature. The courts of this and other jurisdictions, as well as many commentators, have long recognized and accepted this method as constitutionally and logically compelled. See, e.g., West Virginia Univ. Hospitals, Inc. v. Casey, — U.S. —, 111 S.Ct. 1138, 1146-1147, 113 L.Ed.2d 68 (1991); Demarest v. Manspeaker, — U.S. —, 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991); Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440,109 S.Ct. 2558, 2574-2575, 105 L.Ed.2d 377 (1989) (Kennedy, J., concurring); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917); Re-publicbank Dallas v. Interkal, 691 S.W.2d 605, 607 (Tex.1985); Sparks v. State, 76 Tex.Crim. 263, 174 S.W. 351, 352 (Tex.Cr.App.1915); E. Crawford, The Construction of Statutes § 164 (1940); H. Black, Handbook on the Construction and Interpretation of the Laws §§ 24-27, 85 (1896); 2A N. Singer, Sutherland on Statutory Construction §§ 46.01-46.07 (1984 & Supp. 1991); 1 W. LaFave & A. Scott, Substantive Criminal Law § 2.2 (1986); 82 C.J.S. Statutes § 322 (1953).

Analysis

In our view, the meaning of § 2(a)(1) should have been plain to legislators reading it in context at the time of its enactment. See 82 C.J.S. Statutes § 348 (statutory text must be understood in context). And a literal application of its plain language does not lead to absurd consequences. Thus, we may not go beyond the text of the statute in interpreting it.

Section 2(a)(1), by its literal wording, criminalized only “express” representations. The dictionary defines “express” as “clear; definite; explicit; plain; direct; unmistakable.” Black’s Law Dictionary 580 (6th ed. 1990). Therefore, § 2(a)(1) required a representation the meaning of which is absolutely unmistakable. Only a representation employing a term listed in the Controlled Substances Act can ever truly meet this requirement. Representations involving slang terms cannot be thought of as unmistakable, for the meanings of such terms change from time to time, from place to place, and sometimes even from person to person. Representations utilizing the statutory controlled substance terms are, on the other hand, unmistakable at all times and in all places.

This interpretation of § 2(a)(1) is also persuasive given the textual context, since § 2(a)(2) clearly does encompass representations involving only slang terminology. If we interpreted § 2(a)(1) in the way the State suggests, then § 2(a)(2) would be essentially superfluous. It would be illogical to presume that the Legislature intended a part of the statute to be superfluous.

We hold, therefore, that, for the purposes of Article 4476-15b, § 2(a)(1), an express representation is one using the terms listed in the Controlled Substances Act. Thus, § 2(a)(1) did not criminalize representations using only slang terms. It follows, then, that the evidence at appellant’s trial was insufficient to prove his guilt under § 2(a)(1). Plainly, the State prosecuted appellant under the wrong statutory provision.

The judgment oí the court of appeals is affirmed.

1 . Article 4476-15b was repealed in 1989 and reenacted as Tex.Health & Safety Code ch. 482.

2 . At the time in question, the Controlled Substances Act .was contained in Tex.Rev.Civ.Stat. art. 4476-15. It defined "controlled substance" as “a drug, substance, or immediate precursor listed in Schedules I through V or Penalty Groups 1 through 4 of this Act.” In 1989 the Controlled Substances Act was repealed and reenacted as Tex.Health & Safety Code ch. 481.

3 . See, e.g., 82 C.J.S. Statutes §§ 329-348 (1953). It should be remembered that the canons of construction are no more than rules of logic for the interpretation of texts.

4 . Although Section 311.023 of the Texas Government Code invites, but does not require, courts to consider extratextual factors when the statutes in question are not ambiguous, such an invitation should be declined for the reasons stated in the body of this opinion. See also Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex.Cr.App.1990) (legislature may not interfere in core judicial functions); Sparks v. State, 76 Tex.Crim. 263, 174 S.W. 351, 352 (Tex.Cr.App.1915) (“Where the meaning of the [statutory] words used is plain, the act must be carried into effect according to its language, or the courts would be assuming legislative authority."); J. Thomas, Statutory Construction When Legislation is Viewed as a Legal Institution, 3 Harv.J.Legis. 191, 211 n. 85 (1966) (interpretation statutes that “seek[ ] to control the attitude or the subjective thoughts of the judiciary” violate the separation of powers doctrine).