Vicky Moore Hammonds v. State ( 2007 )

Opinion filed April 12, 2007

Opinion filed April 12, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00248-CR

                                                     __________

                             VICKY MOORE HAMMONDS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                 Trial Court Cause No. CR17678

                                                                   O P I N I O N

Vicky Moore Hammonds appeals from a jury conviction for possession of a controlled substance with the intent to deliver.  The trial court sentenced her to twenty years in the Institutional Division of the Texas Department of Criminal Justice.  We affirm.

Background Facts

Appellant was indicted for knowingly possessing, with the intent to deliver, methamphetamine in the amount of four grams or more but less than two hundred grams. Appellant pleaded not guilty and proceeded to a jury trial.  After the conclusion of the evidence, the trial court gave the following instruction on the law of parties:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 4^th day of January, 2005, in Brown County, Texas, VICKY MOORE HAMMONDS, the defendant, either acting alone (or with CARL PERRIE or JASON PERRIE, with the intent to promote or assist the commission of the offense of Possession of a Controlled Substance with the Intent to Deliver, if any, solicited, encouraged, directed, aided, or attempted to aid CARL PERRIE or JASON PERRIE, to commit the offense, if she did) did then and there knowingly possess, with intent to deliver, a controlled substance, namely Methamphetamine, in an amount of four grams or more but less than 200 grams, including adulterants and dilutants, then you will find the defendant guilty as charged of Possession of a Controlled Substance with Intent to Deliver as set forth in the indictment.

The trial court=s charge included the same instruction on the law of parties in the paragraphs regarding the lesser included offenses of possession of a controlled substance in the amount of four grams or more but less than two hundred grams and possession of a controlled substance in the amount of one gram or more but less than four grams.  Appellant objected to the inclusion of the instruction on the law of parties.  The trial court overruled the objection.  The jury found appellant guilty of possession of a controlled substance, with the intent to deliver, in the amount of four grams or more but less than two hundred grams.

Issues on Appeal

Appellant presents two issues on appeal.  First, appellant asserts that the trial court erred in giving the instruction regarding the law of parties in the charge.  Second, appellant asserts that the instruction on the law of parties resulted in harm.

Discussion of the Law

When reviewing a jury charge error, we must first determine whether error actually exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).  If error is found, then we must determine whether the error caused harm.  Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).

Under the law of parties, a person may be charged as a party to the offense if the offense is committed by his own conduct or by the conduct of another for whom he is criminally responsible.  Tex. Pen. Code Ann. ' 7.01(a) (Vernon 2003).  A person is criminally responsible for an offense committed by another if he intentionally promotes or assists the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person to commit the offense.  Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003).

The Court of Criminal Appeals has set out the test to determine if an instruction on the law of parties is required.  It states:

Where the evidence introduced upon the trial of the cause shows the active participation in the offense by two or more persons, the trial court should first remove from consideration the acts and conduct of the non-defendant actor.  Then, if the evidence of the conduct of the defendant then on trial would be sufficient, in and of itself, to sustain the conviction, no submission of the law of principals is required. . . .

On the other hand, if the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State=s case rests upon the law of principals and is dependent, at least in part, upon the conduct of another.  In such a case, the law of principals must be submitted and made applicable to the facts of the case. 

McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974).  An instruction on the law of parties may be given if the evidence supports such an instruction, even if there is not an allegation in the indictment that the defendant acted as a party.  Meanes v. State, 668 S.W.2d 366, 372  (Tex. Crim. App. 1983); Leon v. State, 102 S.W.3d 776, 781 (Tex. App.CHouston [14th Dist.] 2003, no pet.).

Discussion of the Evidence

On January 4, 2005, after receiving a tip that there was a large quantity of methamphetamine at appellant=s residence, police officers set up surveillance and obtained a search warrant for appellant=s residence.  Appellant was stopped in her vehicle a short distance away from her residence.  Appellant admitted to having methamphetamine.  In appellant=s purse, officers found methamphetamine in separate packaged amounts, a day planner address book, and a money pouch containing a sum of money.  In appellant=s car, the officers found methamphetamine in separate packaged amounts, a police scanner, a ledger containing names and numbers, and a cut soda straw.  Officer Tony Aaron, the lead investigator in appellant=s case, testified that all these things were commonly found in the possession of a person involved with the delivery or distribution of a controlled substance.

Pursuant to a search warrant, officers searched appellant=s residence.  In the master bedroom of appellant=s residence, the officers found a metal tin containing cut soda straws, glass pipes used to smoke methamphetamine, a small amount of methamphetamine in a plastic bag, and a black handgun case containing numerous small ziplock bags used for packaging methamphetamine and digital scales used for weighing methamphetamine.  The officers also found a vitamin supplement, MSM, that is added to methamphetamine so that it can be sold in larger quantities.  Officer Aaron testified that all the items found at appellant=s residence were items that are used to deliver and distribute methamphetamine.  Officer Aaron further testified that, based on the totality of all the evidence, he believed appellant to be in possession of methamphetamine for distribution.

Appellant asserted at trial that the methamphetamine belonged to her sons and that she was removing the methamphetamine from the house so her sons would not be caught in possession of it.  However, the testimony did not link the evidence to appellant=s sons.  Officer Aaron=s testimony linked the evidence to appellant.  He testified that all the drugs and paraphernalia were found either in appellant=s purse, her car, or her residence.  He further testified that some of the items contained information that was personal to appellant, further linking the evidence to her.

 The evidence clearly showed appellant=s guilt as a primary actor.  Because the evidence was sufficient to sustain appellant=s conviction based on her conduct as a primary actor, an instruction on the law of parties was not required.  McCuin, 505 S.W.2d at 830.  The court instructed the jury that it could find appellant committed the offense either acting alone or with one or more persons.  Appellant properly objected to the charge. 

If the inclusion of a law-of-parties instruction caused some harm, reversal is required. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).  The Texas Court of Criminal Appeals has recognized in similar instances that the inclusion of such an instruction is harmless. See Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986 ) (any error in charging on the law of parties is harmless if the evidence clearly supports defendant=s guilt as the primary actor); Todd v. State, 601 S.W.2d 718, 721 (Tex. Crim. App. 1980) (because the jury was authorized to convict the defendant if it found that he acted alone, any error including a law-of-parties instruction was harmless).

Appellant contends that she was harmed because the jury could have convicted her based upon the independent acts of her sons.  The evidence of her guilt, however, is overwhelming.  Appellant was found in possession of a large quantity of methamphetamine, both in her purse and in the front seat of her car, that had been packaged in several discrete units.  She also had in her purse and car items consistent with the intent to deliver methamphetamine:  a ledger, cut soda straw, money pouch, and address book.  In light of this evidence and because the jury was authorized to convict appellant if it found she was acting alone, the inclusion of the law-of-parties instruction was harmless.  We overrule appellant=s first and second issues on appeal.

Conclusion

The trial court=s judgment is affirmed.

RICK STRANGE

JUSTICE

April 12, 2007

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.