Donald Jones v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00275-CR
DONALD JONES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 12-02026-CRF-361
MEMORANDUM OPINION
Appellant Donald Jones was charged by indictment with possession of a
controlled substance (a compound, mixture, or preparation in an amount of 200 grams or
more but less than 400 grams, that contained not more than 200 milligrams of codeine per
100 milliliters or 100 grams) with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.105(1) (West 2010). The indictment thus alleged a first-degree felony offense. Id. §
481.114(a, d).
Also, the indictment included an enhancement paragraph alleging Jones’s prior
felony conviction of aggravated assault on a peace officer. Under a plea agreement, Jones
made an open plea of guilty and pled true to the enhancement paragraph.1 Accordingly,
the punishment range was life or fifteen to 99 years’ imprisonment. TEX. PENAL CODE
ANN. § 12.42(c)(1) (West Supp. 2014). After a punishment hearing, the trial court
sentenced Jones to twenty years’ imprisonment.2 Jones appeals, asserting in his sole issue
that the evidence is insufficient to support the conviction.
Article 1.15 of the Texas Code of Criminal Procedure provides that
in the event of a felony conviction based upon a guilty plea in lieu of a jury
verdict, “it shall be necessary for the state to introduce evidence into the
record showing the guilt of the defendant and ... in no event shall a person
charged be convicted upon his plea without sufficient evidence to support
the same.” TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005). A judicial
confession, standing alone, is sufficient to sustain a conviction upon a guilty
plea and to satisfy the requirements of article 1.15 so long as the judicial
confession covers all of the elements of the charged offense. Menefee v. State,
287 S.W.3d 9, 13 (Tex. Crim. App. 2009). However, a judicial confession that
fails to establish every element of the offense charged will not authorize the
trial court to convict. Id. at 14.
Dowden v. State, 455 S.W.3d 252, 254-55 (Tex. App.—Fort Worth 2015, no pet. h.).
Although the United States Constitution does not require
substantiation of a guilty plea in state court, Texas Code of Criminal
Procedure article 1.15 does provide this additional procedural safeguard.
TEX. CODE CRIM. PROC. art. 1.15; Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.
App. 2009). Under the article, a court may not enter a conviction in a felony
case based on a guilty plea unless evidence is presented establishing guilt
in addition to and independent of the plea. TEX. CODE CRIM. PROC. art. 1.15;
Menefee, 287 S.W.3d at 13-14. The evidence does not have to establish the
1
As a part of the plea agreement, Jones agreed to admit his guilt to an unadjudicated and pending felony
charge (aggravated assault) and prosecution of that felony would be barred under Penal Code section 12.45,
which the trial court did when Jones was sentenced.
2
At a hearing on Jones’s motion for new trial, Jones’s trial attorney said that, because of Jones’s severe
health problems, including Stage 4 kidney failure that requires dialysis three times a week, the defense
strategy was to plead guilty and seek deferred-adjudication community supervision from the trial court at
punishment because Jones had a felony conviction. The twenty-year sentence is at the low end of the 15-
to-99 years to life enhanced punishment range.
Jones v. State Page 2
defendant’s guilt beyond a reasonable doubt but must embrace every
element of the offense charged. Staggs v. State, 314 S.W.3d 155, 159 (Tex.
App.—Houston [1st Dist.] 2010, no pet.).
Evidence substantiating a guilty plea can take several possible forms.
Menefee, 287 S.W.3d at 13. Article 1.15 itself states that a defendant may
consent to the presentation of evidence either by oral testimony or in
written form, or to an oral or written stipulation of what the evidence would
be, without necessarily admitting to its veracity or accuracy. Id.
Additionally, courts have recognized that a defendant may enter a sworn
written confession, or may testify under oath in open court, admitting his
or her culpability or at least acknowledging generally that the allegations
against him or her are in fact true and correct. Id. A deficiency in one form
of proof may be compensated for by other competent evidence in the
record. Id. at 14. Evidence adduced at a sentencing hearing may also suffice
to substantiate a guilty plea. See id. at 18-19 … .
Jones v. State, 373 S.W.3d 790, 792-93 (Tex. App.—Houston [14th Dist.] 2012, no pet.).3
In the punishment hearing, Michael Welch, a Brazos County Sheriff’s Office
Investigator, testified that he and Terry Young, another Investigator, were investigating
Jones, who was alleged to have filled a prescription at the Village Foods pharmacy and
then selling it. On December 1, 2011, the pharmacist alerted the Sheriff’s Office that
3
Also, the State cites to and quotes from Saleh v. State, as follows:
The judicial confession may take the form of an affirmative acknowledgment by the
defendant that the indictment was true and correct. Id.
Here, appellant executed a sworn judicial confession in which he “admit[ted] and
judicially confess[ed]” to the allegations and facts in the indictment and “stipulat[ed] that
the allegations and facts [were] true and correct and constitut[ed] evidence in this case.”
This judicial confession standing alone is sufficient under article 1.15 to support appellant’s
convictions. See Keller, 125 S.W.3d at 605-06 (holding judicial confession that provided, “I
understand the above allegations and I confess that they are true ...” was sufficient
evidence to support judgment under article 1.15 and “the record need not otherwise
provide proof”).
Saleh v. State, No. 14-05-01148-CR, 2007 WL 1892262, at *2 (Tex. App.—Houston [14th Dist.] July 3, 2007,
pet. ref’d) (mem. op., not designated for publication).
Jones v. State Page 3
Jones had filled a prescription and that the buyer was in a black Mercedes in the parking
lot. Welch and Young witnessed Jones get into the passenger side of the Mercedes for a
short time and then exit; in Welch’s experience, a drug transaction had taken place. As
the Mercedes attempted to leave the parking lot, Welch and Young blocked the Mercedes
from leaving and the driver, Cedric Rhodes, was detained.
Jones was located at the back corner of the building and was also detained. A
search of the vehicle located a bottle of promethazine with codeine. The label on the
bottle that contained the customer’s name had been torn off. The torn-off portion of the
label was located in a trash can, and it showed that the prescription was for Donald Jones.
Photos of the Mercedes, the trash can where the torn label was found, and the torn label
placed next to the bottle of promethazine with codeine were admitted. Welch opined
that the reason to tear off the customer’s name would be to prevent identification of who
the bottle originally belonged to.
Jones testified and admitted that he sold his prescription cough medicine (codeine
with promethazine) to Rhodes for cash.
As a part of his guilty plea, Jones executed a “Defendant’s Plea of Guilty, Waiver,
Stipulation and Judicial Confession.” It states in part:
I do further admit and judicially confess that I unlawfully committed the
acts alleged in the indictment/information in this cause at the time and
place and in the manner alleged, or as a lesser included offense of the offense
charged in the indictment/information, and that such allegations are true and
correct, and that I am in fact GUILTY of the offense alleged or as a lesser
included offense.
Jones’s sufficiency challenge asserts that his judicial confession to the offense
alleged in the indictment is insufficient evidence to support the conviction because the
Jones v. State Page 4
indictment, which Jones asserts is flawed, does not embrace every element of the charged
offense. Jones admits that his guilty plea waived all non-jurisdictional defects in the
indictment by not objecting before his guilty plea. See Perez v. State, 129 S.W.3d 282, 288
(Tex. App.—Corpus Christi 2004, no pet.); Stahle v. State, 970 S.W.2d 682, 694 (Tex. App.—
Dallas 1998, pet. ref’d) (“The law in this State is well settled that a guilty plea entered
without benefit of a plea bargain waives all non-jurisdictional defects occurring prior to
entry of the plea.”); TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005).
The indictment alleged that Jones did:
then and there knowingly possess, with intent to deliver, a controlled
substance, namely, a compound, mixture, or preparation in an amount of
200 grams or more but less than 400 grams, that contained not more than
200 milligrams of codeine per 100 milliliters or 100 grams and includes one
or more non-narcotic active medicinal ingredients of codeine, [Emphases
added.]
Section 481.105(1) of the Texas Health & Safety Code provides in pertinent part:
Penalty Group 4 consists of:
(1) a compound, mixture, or preparation containing limited
quantities of any of the following narcotic drugs that includes one or more
nonnarcotic active medicinal ingredients in sufficient proportion to confer
on the compound, mixture, or preparation valuable medicinal qualities other than
those possessed by the narcotic drug alone:
not more than 200 milligrams of codeine per 100 milliliters or per 100
grams; ...
TEX. HEALTH & SAFETY CODE ANN. § 481.105(1) (emphasis added).
Jones asserts that the body of the indictment does not allege delivery of a
Jones v. State Page 5
controlled substance in Penalty Group 4,4 nor does it mention the nonnarcotic
promethazine as the “one or more nonnarcotic active medicinal ingredients in sufficient
proportion to confer on the compound, mixture, or preparation valuable medicinal
qualities other than those possessed by the narcotic drug alone.” Thus, Jones concludes,
his judicial confession to the offense charged in the indictment is insufficient to support
the conviction for the first-degree felony offense of possession of a Penalty Group 4
controlled substance with intent to deliver under section 481.114(a, d). That statute
provides in part:
(a) Except as authorized by this chapter, a person commits an offense if the
person knowingly manufactures, delivers, or possesses with intent to
deliver a controlled substance listed in Penalty Group 3 or 4.
….
(d) An offense under Subsection (a) is a felony of the first degree, if the
amount of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 200 grams or more but
less than 400 grams.
TEX. HEALTH & SAFETY CODE ANN. § 481.114(a, d).
To prove unlawful possession of a controlled substance, the State must prove
that: (1) the accused exercised control, management, or care over the substance; and (2)
the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d
402, 405-06 (Tex. Crim. App. 2005). Jones admitted that he sold the promethazine with
codeine for cash, and the DPS lab report, which was admitted, proved the controlled
substance, codeine, and the liquid amount weight of 228.53 grams.
4
The indictment’s caption reads in part: “Charge: MAN/DEL CONT SUB PG 4 200-400 GRAMS.”
Jones v. State Page 6
The plea agreement that Jones signed states that he “agrees to plead guilty to the
offense … of Man/Del CS PG 4 200-400g … .” At the punishment hearing, after Jones
was sworn, the following occurred:
THE COURT: It was on May the 15th. Do you remember signing
this document that I’ve got in front of me called Defendant’s Plea of Guilty?
THE DEFENDANT: Yes.
THE COURT: And you understand that I’m the person that's going
to make the decision about your punishment today? And that’s what you
want to do, right?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Let me ask you this, sir: The State – ma’am,
do you need to sit down?
Okay. The State alleges that back on December 1st of 2011, here in
Brazos County, Texas, you possessed -- knowingly possessed with the
intent to deliver a compound mixture or preparation in an amount of more
than 200 grams but less than 400 grams, that contained not more than 200
milligrams of codeine per 100 milliliters or 100 grams and included one or
more non-narcotic active medicinal ingredients of codeine.
Do you understand that charge of manufacture and delivery of
controlled substance, specifically codeine? Do you understand that
charge against you?
THE DEFENDANT: I guess I do, Your Honor. I didn’t know at first
it was a controlled substance, but yes, sir.
THE COURT: But you understand that’s what you're charged with?
THE DEFENDANT: Yes, sir.
THE COURT: And how do you plead to that charge?
THE DEFENDANT: Guilty.
We agree with the State that Jones’s judicial confession and the above evidence,
Jones v. State Page 7
including Jones’s sworn answers to the trial court about the charge he was pleading guilty
to, embrace every constituent element of the offense charged in the indictment and is thus
sufficient to support Jones’s felony conviction based upon his guilty plea. We overrule
his sole issue and affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurs in the judgment to the extent it affirms the judgment
of the trial court. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed August 31, 2015
Do not publish
[CR25]
Jones v. State Page 8