Bigley v. State , 1993 Tex. Crim. App. LEXIS 124 ( 1993 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

A jury convicted appellant of possession of 400 grams or more of methamphetamine and assessed punishment, enhanced by proof of one prior felony conviction, at ninety-nine years confinement and a $250,000 fine. On appeal, appellant argued that the evidence was insufficient to prove that the amount of the methamphetamine he possessed weighed at least 400 grams. The court of appeals agreed. Bigley v. State, 831 S.W.2d 409 (Tex.App.—Austin 1992) (opinion on rehearing).

In reliance on this Court’s decisions in McGlothlin, Reeves, and Engelking,¹ the court of appeals held that the State had failed to prove that the substances with which the methamphetamine was mixed had been added with the intent to increase the bulk of the final product. Therefore, the court of appeals held that the State had failed to prove that the controlled substance, including adulterants and dilutants, weighed at least 400 grams. Bigley, 831 S.W.2d at 412.

The court of appeals also held, however, that there was ample evidence of appellant’s guilt of the lesser-included offense of possession of 28 grams or more but less than 400 grams of methamphetamine because the State proved that appellant possessed 388.76 grams of pure methamphetamine. Since the jury had been instructed on the lesser-included offense of possession of 28 grams or more of methamphetamine, the court of appeals held that by finding appellant guilty of possession of at least 400 grams of methamphetamine, the jury had also necessarily found that appellant possessed at least 28 grams of methamphetamine. The court of appeals relied on Texas Rule of Appellate Procedure 80² (hereinafter “rule 80”) to reform the judgment to reflect a conviction for possession of 28 grams or more, but less than 400 grams of methamphetamine. The judgment of conviction, as reformed, was affirmed as to the adjudication of guilt, but remanded for a new trial as to punishment.

We granted appellant’s petition for discretionary review to determine whether the court of appeals had the authority to reform the judgment to reflect a conviction for the lesser-included offense. Appellant asserts that the court of appeals’ application of Rule 80 is in conflict with this Court’s construction of the rule in Urbano v. State, 837 S.W.2d 114 (Tex.Cr.App.1992).

While Urbano did involve Rule 80, that decision is not dispositive of the issue confronting us in this case. Urbano was a capital murder prosecution in which this Court found the evidence insufficient to prove the aggravating element of remuneration. 837 S.W.2d at 117. The State sought to have this Court reform the judgment of conviction to reflect a conviction for the lesser-included offense of murder because the evidence was sufficient to prove the offense of murder. This Court declined the State’s invitation upon observing that “this Court does not have the authority to reform a conviction of a greater felony found to be based on insufficient evidence to [a] lesser felony, which the evidence will support.” Id., citing Stephens v. State, 806 S.W.2d 812, 818, fn. 8 (Tex.Cr.App.1990) (Emphasis added).

The fact that we have interpreted Rule 80 in such a manner as to preclude this Court from having the power to reform judgments, however, does not mean that an intermediate court of appeals is also denied the power to reform judgments. Indeed, Rule 80 specifically states that “[t]he court of appeals may: ... (2) modify the judgment of the court below by correcting or reforming it, ... ” Tex.R.App.Proc. 80 (Emphasis added). Appellant, citing Asberry v. State, 813 S.W.2d 526 (Tex.App.—Dallas 1991, pet. ref'd), argues that “errors of a clerical nature may be corrected, [but] reformation involving the judicial reasoning of the district court is not authorized.” Nothing in the text of Rule 80, however, so limits the power of the court of appeals to reform a judgment of the court below. Therefore, we refuse to limit the authority of the courts of appeals to reform judgments to only those situations involving mistakes of a clerical nature.

In this case, the court of appeals reformed the judgment to reflect that appellant had been convicted of the lesser included offense of possession of an amount of methamphetamine greater than 28 grams and less than 400 grams. Sam Bivone’s testimony in support of the State’s case established that the unadulterated methamphetamine possessed by appellant weighed 388.76 grams. Since we have concluded that Rule 80 empowers the courts of appeals to reform judgments, we find that the court of appeals acted properly in reforming the judgment to reflect that appellant was guilty of possessing more than 28 grams of methamphetamine based on Bivone’s testimony.

The judgment of the court of appeals is AFFIRMED.

1 . McGlothlin v. State, 749 S.W.2d 856 (Tex.Cr.App.1988); Reeves v. State, 806 S.W.2d 540 (Tex.Cr.App.1990); Engelking v. State, 750 S.W.2d 213 (Tex.Cr.App.1988).

2 . In relevant part, Texas Rule of Appellate Procedure 80 reads:

Rule 80. Judgment of Court of Appeals

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(b) Types of Judgment. The court of appeals may: ... (2) modify the judgment of the court below by correcting or reforming it, ...

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(c) Other Orders. In addition, the court of appeals may make any other appropriate order, as the law and nature of the case may require.