James Harold Bryant v. State ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

James Harold Bryant

Appellant

Vs.                   No. 11-04-00104-CR -- Appeal from Midland County

State of Texas

Appellee

James Harold Bryant, appellant, was convicted in the 238th District Court of Midland County of delivery of a simulated controlled substance.  The jury assessed his punishment at one year confinement in a state jail facility and a $250 fine.  Appellant=s first point of error is that the trial court erred in proceeding to trial after dismissing the cause of action and divesting itself of jurisdiction.  Appellant=s second point of error is that the trial court erred in not including all of TEX. HEALTH & SAFETY CODE ANN. ' 482.003 (Vernon 2003) in its instructions to the jury and that such failure amounts to an impermissible comment upon the weight of the evidence.  Appellant=s third point of error is that the trial court denied appellant a fair trial because it delegated the preparation of the courts=s charge to the prosecution.  We affirm.

Dismissal of First Indictment

Appellant was indicted by a grand jury of the 385th District Court of Midland County. The indictment was given File Number CR28,905 in the 385th District Court on October 2, 2003.  A subsequent re-indictment of appellant was returned by a grand jury of the 238th District Court of Midland County.  The re-indictment was given the same file number of CR28,905 on January 29, 2004, although the re-indictment was filed in the 238th District Court.  Prior to trial, the 238th District Court granted the State=s motion to dismiss the indictment returned in the 385th District Court and allowed the trial to proceed based on the re-indictment in Cause No. CR28,905 in the 238th District Court. 

Appellant argues that the re-indictment was of no consequence and had no effect because the trial court was already vested with jurisdiction by the return of the first indictment.^[1]  He further contends that the dismissal of the first indictment divested the trial court of jurisdiction to prosecute him.  Therefore, appellant argues that, when the trial court granted the State=s motion to dismiss the first indictment, it in effect dismissed all prosecution in Cause Number CR28,905.  

A pending indictment does not prevent a grand jury from returning subsequent indictments charging the same offense.  Whitehead v. State, 286 S.W.2d 947, 948 (Tex.Cr.App.1956).  Thus, the presentment of the re-indictment to the 238th District Court on January 29, 2004, vested that court with jurisdiction to try appellant even though a prior indictment was pending.  See TEX. CONST. art. V, '12(b).  On January 29, 2004, when the re-indictment was presented to the 238th District Court, it vested the court with jurisdiction to hear the cause even though a prior indictment was pending.  The State had the option to proceed under either indictment until one of them was dismissed.  Whitehead v. State, supra at 948; see Flores v. State, 487 S.W.2d 122, 125 (Tex.Cr.App.1972).

Upon request of the State, the 238th District Court dismissed the first indictment and allowed the State to proceed on the second indictment.  The State should have filed its motion to dismiss the first indictment in the 385th District Court.  See Flores v. State, supra at 125-26.  However, appellant did not contest the 238th District Court=s dismissal of the indictment below, and appellant does not contest that dismissal here.  Appellant has waived any complaint concerning the 238th District Court=s dismissal of the initial indictment.  See Williams v. State, No. 11-01-00222-CR, 2002 WL 32344499 (Tex.App. - Eastland June 27, 2002)(not designated for publication); Evans v. State, 61 S.W.3d 688, 690 (Tex.App. - Fort Worth 2001, no pet=n).

After the first indictment was dismissed, the 238th District Court had jurisdiction to proceed to trial on the re-indictment.  The re-indictment had the requisites of a valid indictment.  TEX. CODE CRIM. PRO. ANN. art. 21.02 (Vernon 1989). There was no requirement that the re-indictment in the 238th District Court be given a file number different from the number of the original indictment in the 385th District Court.^[2]  Appellant=s first point of error is overruled.

Jury Charge

Appellant argues in his second point of error that the trial court erred by including in the court=s charge an instruction based on Section 482.003(a)(2) & (3).  He contends that the instruction impermissibly commented on the weight of the evidence.  The paragraph of the court=s charge in question reads:

In determining whether a person represented a simulated substance to be a controlled substance in a manner that would lead a reasonable person to believe the substance was a controlled substance, the jury may consider, in addition, to all other logically relevant factors, whether (1) the delivery or intended delivery included an exchange of or demand for property as a consideration for delivery of the controlled substance and the amount of the consideration was substantially in excess of the reasonable value of the simulated controlled substance, and (2) the physical appearance of the finished product containing the substance was substantially identical to a controlled substance.

Appellant argues that the instruction violated TEX. CODE CRIM. PRO. ANN. art. 36.14 (Vernon Supp. 2004 - 2005) because it commented on the weight of certain evidence and singled out Apackaging and the amount of remuneration as aspects of testimony the Jury should pay particular attention to.@

The function of the jury charge is to instruct the jury on the law applicable to the case.  Dinkins v. State, 894 S.W.2d 330, 338 (Tex.Cr.App.1995).  In examining appellant=s contention of jury charge error, we determine: (1) whether error actually existed in the charge; and (2) if an error existed, whether any resulting harm requires reversal.  Mann v. State, 964 S.W.2d 639, 641 (Tex.Cr. App.1998).

The instruction, taken verbatim from the Texas Health and Safety Code, gave the jury a nonexclusive list of factors it could consider in determining whether appellant represented the substance Ain a manner that would lead a reasonable person to believe the substance was a controlled substance.@ Section 482.003(a)(2) & (3). The instruction informed the jury of the Aspecial legal consequences@ of the receipt of particular evidence and was proper. See Atkinson v. State, 923 S.W.2d 21, 25 (Tex.Cr.App.1996).  A comment on the evidence is one which might suggest to the jury the judge=s personal estimation of the strength or credibility of certain evidence.  Atkinson v. State, supra at 24; Hathorn v. State, 848 S.W.2d 101, 114 (Tex.Cr.App.1992).  The instruction was not a comment on the weight of the evidence.

In the alternative, appellant argues that Section 482.003 (b) in its entirety should have been included in the court=s charge.  Section 482.003(b) states:  AProof of an offer to sell a simulated controlled substance must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree.@ 

Paragraph (b) of Section 482.003 specifically deals with offers to sell simulated controlled substances.  The State, in this case, presented evidence and argued that appellant actually sold the simulated controlled substance, not that he merely offered to sell the substance. Unnecessary instructions should not be given, even if they are correct statements of law.  Drichas v. State, 152 S.W.3d 630, 634 (Tex.App. - Texarkana 2004, pet=n granted).  We conclude that the trial court did not err in refusing to include additional statutory language that was unnecessary.  We overrule appellant=s second point of error.

                                         Delegating the Preparation of the Court=s Charge

To preserve error for appellate review, TEX.R.APP.P. 33.1 requires that a complaint be made to the trial court by a timely request, objection, or motion. Appellant did not object to the trial court=s charge on the ground that it was drafted by the State.  Therefore, appellant has not preserved this point for review.  Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Cr.App.1996), cert. den=d, 520 U.S. 1173 (1997).  Appellant=s third point of error is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

July 28, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

---

^[1]Although appellant refers to Athe trial court@ without specifying which court, it appears that he is referring to the 238th District Court. 

^[2]The record does not indicate that Cause No. CR28,905 was ever transferred from the 385th District Court to the 238th District Court.  The briefs indicate that the district clerk simply filed the indictments under the same number but in the separate courts.