State v. Cameron Scott Moseley ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00279-CR
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THE STATE OF TEXAS, Appellant
V.
CAMERON SCOTT MOSELEY, Appellee
________________________________________________________________________
On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. 23340
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OPINION
The State of Texas appeals the trial court’s order granting appellee Cameron
Scott Moseley’s motion to quash and to dismiss the indictment. See Tex. Code
Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 2014) (“The state is entitled to
appeal an order of a court in a criminal case if the order . . . dismisses an
indictment . . . or any portion of an indictment[.]”). The State argues the trial court
erred in concluding that the State was required to allege in the indictment a
controlled substance specifically identified by scientific name in section 481.1031
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of the Texas Health and Safety Code when the non-exclusive list of prohibited
substances included therein is part of a broadly-defined subclass of synthetic
cannabinoids that includes the controlled substance alleged in Moseley’s
indictment. We reverse the trial court’s order and remand the cause to the trial
court for further proceedings.
Background
Moseley was indicted for possession with the intent to deliver a controlled
substance, as follows:
[Moseley] did then and there intentionally or knowingly possess a
controlled substance, namely a synthetic chemical compound that is a
cannabinoid receptor agonist and mimics the pharmacological effect
of naturally occurring cannabinoids of four hundred grams or more,
including any adulterants or dilutants, with intent to deliver said
controlled substance[.]
Moseley filed a motion to quash the indictment alleging that it does not appear
from the substance of the indictment that Moseley committed an offense because
(1) “no controlled substance listed in Penalty Group 2-A is named in the
indictment[,]” and (2) “use of the ‘controlled substance analogue’ provisions of the
Texas Health and Safety Code is not allowed for substances that are alleged to be
analogous to the controlled substances listed in Penalty Group 2-A.”
After conducting an oral hearing, the trial court granted the motion to quash
and entered written findings of fact and conclusions of law. The trial court found
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that both the State and Moseley agree that the substance at issue has the scientific
name XLR – 11 and it is not identified by scientific name under Penalty Group 2-
A. The trial court made the following conclusions: (1) the indictment fails to allege
a controlled substance specifically listed by scientific name in section 481.1031,
and should be dismissed; (2) the statutory language of section 481.1031 “creates an
exclusive list of substances instead of a broadly defined subclass of synthetic
cannabinoids supplemented by a list[,]” which precludes prosecution under Penalty
Group 2-A “even if ‘XLR – 11’ is in fact a synthetic chemical compound that is a
cannabinoid receptor agonist and mimics the pharmacological effect of naturally
occurring cannabinoids[;]” and (3) “[t]he defendant never argued, and therefore
waived for purposes of appeal, the issue that the indictment may have failed to
provide notice because it did not include the name of the non-listed substance as
‘XLR-11.’” The State timely filed its notice of appeal.
Discussion
Whether an indictment sufficiently alleges an offense is a question of law
subject to de novo review. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.
2004). To meet the accused’s right to notice under both the United States and
Texas Constitutions, the indictment “must be specific enough to inform the
accused of the nature of the accusation against him so that he may prepare a
defense.” Id. Article 21.02 of the Texas Code of Criminal Procedure sets forth
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requirements for an indictment and specifically provides that the “offense must be
set forth in plain and intelligible words.” Tex. Code Crim. Proc. Ann. art. 21.02(7)
(West 2009). Article 21.03 provides that “[e]verything should be stated in an
indictment which is necessary to be proved.” Id. art. 21.03. Article 21.04 provides
that “[t]he certainty required in an indictment is such as will enable the accused to
plead the judgment that may be given upon it in bar of any prosecution for the
same offense.” Id. art. 21.04. An indictment that tracks the statutory language
generally satisfies constitutional and statutory requirements, and the State need not
allege facts that are merely evidentiary in nature. State v. Mays, 967 S.W.2d 404,
406 (Tex. Crim. App. 1998). The trial court should grant a motion to quash “only
where the language concerning the defendant’s conduct is so vague or indefinite as
to deny the defendant effective notice of the acts he allegedly committed.”
DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988) (en banc).
In this case, the indictment alleges that Moseley committed the offense of
possession with the intent to deliver a controlled substance in Penalty Group 2-A.
The State argues that although the indictment does not contain the name of a
substance specifically identified in section 481.1031, its allegations are sufficient
because it does allege the basic requirements set forth in the statute that a
substance in Penalty Group 2-A be “a synthetic chemical compound that is a
cannabinoid receptor agonist and mimics the pharmacological effect of naturally
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occurring cannabinoids.” The State contends that it may prosecute a defendant
under Penalty Group 2-A for any substance that meets the basic requirements set
forth in the statute and that the list following the basic requirements only creates a
non-exclusive list of the substances which may be properly categorized under
Penalty Group 2-A. The State maintains that any substance that meets the basic
requirements identified in the statute is a “‘listed’” substance under Penalty Group
2-A subject to prosecution under section 481.113 of the Texas Health and Safety
Code. Moseley responds that Penalty Group 2-A contains an exclusive list of
substances and an indictment alleging an offense under section 481.113 must
allege manufacture, delivery, or possession with intent to deliver a substance that is
specifically identified in Penalty Group 2-A.
Section 481.113(a) of the Health and Safety Code provides that “a person
commits an offense if the person knowingly manufactures, delivers, or possesses
with intent to deliver a controlled substance listed in Penalty Group 2 or 2-A.” Tex.
Health & Safety Code Ann. § 481.113(a) (West Supp. 2014). Section 481.1031
identifies Penalty Group 2-A as consisting of “any quantity of a synthetic chemical
compound that is a cannabinoid receptor agonist and mimics the pharmacological
effect of naturally occurring cannabinoids, including: . . . .” Id. § 481.1031. After
the word, “including[,]” the statute identifies certain named substances to be
included in Penalty Group 2-A. Id.
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The resolution of this case depends on the meaning of the word “including”
as used in section 481.1031. Because statutory construction is a question of law,
we review it de novo. Johnson v. State, 423 S.W.3d 385, 394 (Tex. Crim. App.
2014). In interpreting a statute, “we seek to effectuate the ‘collective’ intent or
purpose of the legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d
782, 785 (Tex. Crim. App. 1991) (en banc) (citing Camacho v. State, 765 S.W.2d
431 (Tex. Crim. App. 1989)). We begin our analysis by examining the plain
language of the statute. State v. Vasilas, 187 S.W.3d 486, 488 (Tex. Crim. App.
2006) (citing Boykin, 818 S.W.2d at 785). The Court in Boykin explained,
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 [focusing] 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.
818 S.W.2d at 785. If, after analyzing the literal text of the statute, we find that it is
clear and unambiguous, we give effect to the plain meaning of the statute. See
Vasilas, 187 S.W.3d at 488-89 (citing Boykin, 818 S.W.2d at 785). However,
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where a statute’s language is ambiguous or where application of the statute’s plain
language leads to absurd results, we may consider executive or administrative
interpretations of the statute or legislative history. Boykin, 818 S.W.2d at 785-86.
Chapter 481 of the Health and Safety Code does not define “include” or
“including.” See Tex. Health & Safety Code Ann. § 481.001-.354 (West 2010 &
Supp. 2014). Section 1.002 of the Health and Safety Code indicates that the Code
Construction Act applies in the construction of its provisions unless expressly
stated otherwise. Id. § 1.002 (West 2010). The Code Construction Act provides
generally that “[w]ords and phrases shall be read in context and construed
according to the rules of grammar and common usage.” Tex. Gov’t Code Ann. §
311.011(a) (West 2013). But, “[w]ords and phrases that have acquired a technical
or particular meaning, whether by legislative definition or otherwise, shall be
construed accordingly.” Id. § 311.011(b). In section 311.005(13), the Legislature
indicated the meaning it intends to be given to the word “including” unless the
statute or context in which the word is used indicates a different definition is
required. See id. § 311.005(13). “‘Includes’ and ‘including’ are terms of
enlargement and not of limitation or exclusive enumeration, and use of the terms
does not create a presumption that components not expressed are excluded.” Id.
The Court of Criminal Appeals has relied on section 311.005(13) to interpret the
statutory meaning of the term “including” as a term of enlargement and not
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exclusion. See Vasilas, 187 S.W.3d at 489-90. In the civil law context, this Court
has interpreted the word “‘including’” as suggesting “an illustrative list rather than
an exclusive one.” Wang v. Wen-Ning Lee, 256 S.W.3d 862, 868 (Tex. App.—
Beaumont 2008, no pet.). “The verb to include introduces examples, not an
exhaustive list.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 132 (2012). We discern nothing from the context
in which “including” is used in section 481.1031 to indicate that we must disregard
either the common meaning of the term “including” or the definition provided by
the Legislature in the Code Construction Act. See Tex. Health & Safety Code
Ann. § 481.1031.
The Legislature’s definition of the term “including” is clear and
unambiguous. In applying this definition to section 481.1031, we conclude the
specific list of substances identified in the statute is non-exclusive and Penalty
Group 2-A should be interpreted as including any “synthetic chemical compound
that is a cannabinoid receptor agonist and mimics the pharmacological effect of
naturally occurring cannabinoids[.]” Id. § 481.1031. This interpretation does not
lead to an absurd result. There is nothing absurd about the Legislature drafting the
statute to allow for the inclusion of those substances not yet identified by name
when the statute was drafted, but that share the characteristics identified in the
statute as constituting Penalty Group 2-A.
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Because the plain language of the statute unambiguously allows Moseley to
be charged with possession of any substance specifically identified in the statute or
that otherwise is a “synthetic chemical compound that is a cannabinoid receptor
agonist and mimics the pharmacological effect of naturally occurring
cannabinoids,” Moseley’s indictment, which tracks the statutory language, is
sufficient to notify Moseley of the charges against him and to allow him to prepare
a defense. See Mays, 967 S.W.2d at 406. The trial court erred in granting
Moseley’s motion to quash. We sustain the State’s sole issue on appeal, reverse the
trial court’s order, and remand the cause for further proceedings consistent with
this opinion.
REVERSED AND REMANDED.
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CHARLES KREGER
Justice
Submitted on December 18, 2014
Opinion Delivered February 4, 2015
Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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