Joe Starks, Jr. v. the State of Texas ( 2024 )

Opinion filed February 8, 2024
In The
Eleventh Court of Appeals
__________
No. 11-22-00236-CR
__________
JOE STARKS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 23145-B
OPINION
Appellant, Joe Starks, Jr., contests the sufficiency of the evidence supporting
the trial court’s guilty verdict—arguing that the approximately 5.2 grams of
substance containing methamphetamine found in his possession, was not a form of
methamphetamine that qualified as a controlled substance. See TEX. HEALTH &
SAFETY CODE ANN. § 481.115(d) (West Supp. 2023). After a bench trial, the trial
court found Appellant guilty of the second-degree felony offense of possession of
methamphetamine and assessed his punishment at imprisonment for five years in the
Institutional Division of the Texas Department of Criminal Justice. Following a
careful review of the record, construing the relevant statute, and examining the
evidence presented in the light most favorable to the verdict, we affirm.
Factual and Procedural History
When Esmerelda Brubaker left Abilene to attend a wedding, she allowed
Appellant to stay at her home and watch her dogs. Upon her return, Brubaker and
Appellant argued, after which, Appellant forced Brubaker out of her own home and
locked the doors. Brubaker called the Abilene Police Department, and Officers
Farley and Spurgin responded to the call. After having to forcibly extract Appellant
from the home, Officer Farley searched Appellant. He found two plastic containers
with clear plastic baggies inside and inside those baggies a “crystal-like substance”,
and a clear glass pipe that Officer Farley believed to be a “meth pipe,” used for
smoking methamphetamine. Officer Farley testified that Sergeant Harris performed
a field test on the crystal-like substance, which tested positive for methamphetamine.
The remainder of the substance was sent to a lab for testing. Christopher Cisneros,
a forensic scientist with the Texas Department of Public Safety Crime Laboratory,
assigned to the case, testified at trial. Cisneros conducted preliminary lab testing
that suggested the substance was methamphetamine, and he confirmed those
preliminary test results with a gas chromatograph mass spectrometer test. Cisneros
testified that the confirmed weight for the substances in the containers was
1.62 grams and 3.62 grams, for a total of 5.24 grams. Appellant’s trial counsel asked
Cisneros, “[t]here’s no doubt in your mind that this was actually methamphetamine,
a controlled substance?” Cisneros responded, “[n]o doubt in my mind.”
In Appellant’s sole issue, he contends that there is insufficient evidence to
support the conclusion that he possessed a prohibited form of methamphetamine.
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See HEALTH & SAFETY § 481.102(6). On appeal, Appellant does not dispute that the
evidence at trial established that the substance he possessed was methamphetamine.
Instead, he argues that Section 481.102(6) is written and should be interpreted to
include only its “salts, optical isomers, and salts of optical isomers,” and that, under
such an interpretation, the evidence is insufficient to support Appellant’s conviction
because it does not exclude the possibility that the substance possessed was a form
of methamphetamine that is not prohibited by the Health and Safety Code.
Standard of Review
We review a challenge to the sufficiency of the evidence, regardless of
whether it is denominated as a legal or factual sufficiency challenge, under the
standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the
charged offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v.
State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018); Brooks, 323 S.W.3d at 899;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When the trial court
makes fact findings, we determine whether the evidence, viewed in the light most
favorable to the trial court’s ruling, supports these fact findings. State v. Hardin,
664 S.W.3d 867, 872 (Tex. Crim. App. 2022). “We review legal conclusions, such
as the construction of a statute, de novo.” Id.Viewing the evidence in the light most favorable to the verdict requires that
we consider all the evidence admitted at trial, including improperly admitted
evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As such, we defer to the
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factfinder’s credibility and weight determinations because the factfinder is the sole
judge of the witnesses’ credibility and the weight their testimony is to be afforded.
Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is
deferential and accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from the facts.
Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778.
We may not reevaluate the weight and credibility of the evidence to substitute our
judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). Instead, we determine whether the necessary inferences are based
on the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict. Clement v. State, 248 S.W.3d 791, 796 (Tex. App.—
Fort Worth 2008, no pet.). Therefore, if the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict, and we
defer to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d
516, 525−26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.
Further, we treat direct and circumstantial evidence equally under this
standard. Isassi, 330 S.W.3d at 638; Clayton, 235 S.W.3d at 778; Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). It is not necessary that the evidence
directly prove the defendant’s guilt; circumstantial evidence is as probative as direct
evidence in establishing a defendant’s guilt, and circumstantial evidence can alone
be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim.
App. 2013) (citing Hooper, 214 S.W.3d at 13). Therefore, in evaluating the
sufficiency of the evidence, we must consider the cumulative force of all the
evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Murray v.
State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Each fact need not point
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directly and independently to guilt if the cumulative force of all incriminating
circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
When evidentiary sufficiency turns on the meaning of a statute, we must resort
to statutory interpretation, which is a question of law that we review de novo.
Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim. App. 2020). “Statutory construction
depends on the plain meaning of the statute’s language unless it is ambiguous or the
plain meaning would lead to absurd results that the legislature could not have
possibly intended.” Id. To determine plain meaning, we read the statute in context
and give effect to each word, phrase, clause, and sentence if reasonably possible, and
we construe them “according to any applicable technical definitions and otherwise
according to the rules of grammar and common usage.” Id. If the plain meaning is
not ambiguous and does not lead to absurd results, we do not consider extratextual
factors. Id.Analysis
A person commits the offense of possession of a controlled substance if he
intentionally or knowingly possesses a controlled substance in the applicable penalty
group without a valid prescription. See HEALTH & SAFETY § 481.115(a). Possession
of a controlled substance in penalty group one is a second-degree felony if the
aggregate weight of the substance is four grams or more but less than 200 grams. Id.
§ 481.115(d). One of the controlled substances in penalty group one is
“[m]ethamphetamine, including its salts, optical isomers, and salts of optical
isomers.” Id. § 481.102(6).
Police found a white, crystal-like substance on Appellant after his arrest. Field
testing determined that the substance contained methamphetamine. Further
laboratory results confirmed this fact. The forensic scientist that ran the laboratory
tests testified that there was “no doubt in [his] mind” that the substance was
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methamphetamine, a controlled substance. While Appellant, on appeal,1 concedes
that the evidence at trial established that the substance he possessed was
methamphetamine, he argues it might not have been a form of methamphetamine
proscribed by Section 481.102(6). Appellant contends that because
Section 481.102(6) specifically lists forms of methamphetamine, it must exclude
other forms. See Guinn v. State, 696 S.W.2d 436, 438 (Tex. App.—Houston [14th
Dist.] 1985, pet. ref’d) (explaining the statutory canon of construction expressio
unius est exclusio alterius); see also Ex parte Campbell, 267 S.W.3d 916, 923 (Tex.
Crim. App. 2008) (explaining that the maxim expressio unius est exclusio alterius
means that expressing one thing implies the exclusion of what was not expressed).
We disagree with Appellant’s interpretation of the statute.
In statutory construction, our aim is to effectuate the collective intent or
purpose of the legislators who enacted the legislation. Hardin, 664 S.W.3d at 872
(citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). Our focus is
“on the literal text of the statute in question and attempt to discern the fair, objective
meaning of the text at the time of its enactment.” Id. The text of the statute is the
law and the only definitive evidence of what the legislators had in mind when the
statute was enacted into law; constitutionally, the judiciary is bound to follow the
specific text that was adopted. Id. We presume that every word, phrase, clause, and
sentence has been used for a purpose and that each should be given effect if
reasonably possible. Id. at 873. We read them in context and construe them
according to rules of grammar. Id. Terms not legislatively defined but with an
1
At trial, Appellant testified that he did not have any methamphetamine on him at the time of arrest.
According to his testimony, the plastic capsules instead contained silver and gold metallic paper for model
cars, one of Appellant’s hobbies.
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acquired technical meaning are construed in their technical sense. Otherwise, we
construe terms according to common usage. Id.Using these principles, we note that Section 481.102(6) does not textually
exclude any form of methamphetamine from penalty group one. Instead, the statute
reads: “Penalty Group 1 consists of: . . . (6) Methamphetamine, including its salts,
optical isomers, and salts of optical isomers[.]” HEALTH & SAFETY § 481.102(6)
(emphasis added). Here, it is the word “including” as used in the statute that is the
focus of our statutory construction. A plain reading of the statute indicates that
methamphetamine, in all forms, is a controlled substance. By using the term
“including,” the enumerated contents of methamphetamine that might be extracted
to create other “bootlegged” substances do not limit the term methamphetamine;
instead, the statute clarifies that methamphetamine, in the wide range of forms that
it may be possessed, used, manufactured, or delivered, is an illegally controlled
substance, and the statute prevents the exclusion of its salts, isomers, component
parts, and other forms of methamphetamine as illegally controlled substances. See
TEX. GOV’T CODE ANN. § 311.005(13) (West 2013) (“‘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.”);
Clark v. State, 704 S.W.2d 561, 565 (Tex. App.—Beaumont 1986, no pet.)
(construing a previous version of Section 481.102(6), and stating, “Had the
definition not contained the word ‘including’, but simply listed ‘its salts, isomers
and salts of isomers’ then one might argue the legislature intended them to be
considered separate items and the proof of one would not sustain a conviction for
the other. This is not the case.”); See Maley v. 7111 Sw. Freeway, Inc., 843 S.W.2d
229, 231 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (In statute
construction, “words such as ‘including’ or ‘etc.’ . . . open the door for us to expand
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the list.”); see also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 132–33 (2012) (The term “include” “introduces
examples, not an exhaustive list.”).
Appellant incorrectly argues the rule of expressio unius est exclusio aterius
favors his interpretation of the statute. As noted in St. Paul Mercury Ins. Co. v.
Lexington Ins. Co., 78 F.3d 202, 206–07 (5th Cir. 1996) “the rule of expressio unius
est exclusio aterius [does not apply when] . . . the challenged list of provisions . . .
is prefaced by the word ‘including,’ which is generally given an expansive reading,
even without the additional if not redundant language of ‘without limitation.’”
To support the argument that multiple forms of methamphetamine exist,
Appellant cites to federal case law that interprets a prior version of a federal
sentencing guideline that differentiated between certain forms of methamphetamine,
for which the guidelines previously suggested a lesser sentence than other forms of
methamphetamine or its isomers. See, e.g., U.S. v. Acklen, 47 F.3d 739, 742 (5th
Cir. 1995); U.S. v. Bogusz, 43 F.3d 82, 88 (3d Cir. 1994), superseded by regulation
as recognized in U.S. v. DeJulius, 121 F.3d 891, 894–95 (3rd Cir. 1997). Even if
these cases were relevant to interpreting Texas’ Health and Safety Code, they do not
address sufficiency of the evidence to support a conviction. For the purposes of
conviction, Federal law does not differentiate between forms of methamphetamine.
Acklen, 47 F.3d at 742 (“For purposes of conviction, the difference between the
isomers is irrelevant; section 841 does not distinguish among types of
methamphetamine.”).
Section 481.102(6) unambiguously lists all forms of methamphetamine as a
controlled substance, and there is undisputed evidence that Appellant possessed
methamphetamine at the time of his arrest. Even if we were to interpret the statute
as Appellant advocates, which we do not, there is testimony in the record from which
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the trial court could have concluded that the form of methamphetamine possessed
by Appellant was that of a controlled substance as described in penalty group one.
Expert testimony confirmed, and there was no scientific evidence to the contrary,
that the substance possessed by Appellant and lab tested “was actually
methamphetamine, a controlled substance.” The evidence, viewed in a light most
favorable to the verdict, is sufficient to support the trial court’s conclusion, as the
trier of fact, that Appellant possessed methamphetamine, a controlled substance in
penalty group one, without a valid prescription. See HEALTH & SAFETY
§ 481.115(a).
Accordingly, we overrule Appellant’s sole issue on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
February 8, 2024
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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