DocketNumber： 06-06-00215-CR
Filed Date： 8/1/2007
Status： Precedential
Modified Date： 4/17/2021
On April 22, 2005, Glen Ray Bigham pled guilty to possessing less than one gram of cocaine in trial court cause number 18,601-2004. See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003). The trial court assessed Bigham's punishment at two years' imprisonment. But, in accordance with the parties' negotiated plea agreement, the trial court suspended imposition of that sentence and released Bigham to community supervision for a period of five years.
The State filed a motion to revoke Bigham's community supervision on November 10, 2005. That motion was dismissed on January 9, 2006. On that same date, the trial court modified Bigham's community supervision and directed Bigham to attend and successfully complete the Substance Abuse Felony Punishment Facility (SAFPF) drug treatment program. (1)
On June 13, 2006, the State filed a new application to revoke Bigham's community supervision. The State's application alleged that Bigham had violated the conditions of his community supervision in several ways: (1) by failing to report to his community supervision officer on the first and fifteenth days of September and October, 2005, as previously ordered by the trial court; (2) by becoming $125.00 delinquent in the payment of his court costs, as directed by the trial court; and (3) by using illegal narcotics (cocaine) on or about May 20, 2005, June 17, 2005, July 7, 2005, August 11, 2005, and October 31, 2005 (the substance of each of these allegations had, more or less, been made in the November 10 revocation motion). The State subsequently amended the June 13 motion to assert Bigham had further violated his community supervision by using illegal narcotics (cocaine) on or about August 1 and 7, 2006. After conducting a September 5, 2006, hearing on the State's motion, the trial court found all the alleged violations to have been proven by the evidence, revoked Bigham's community supervision, and assessed Bigham's punishment at imprisonment for one year.
In this appeal, Bigham first contends the trial court was without authority to revoke his community supervision because (1) the State's motion to revoke alleged only allegations that were raised in the pre-modification motion and (2) principles of double jeopardy prohibited the trial court from considering the merits of such allegations as a basis to revoke Bigham's community supervision. In his second issue, Bigham acknowledges that his first point of error was not raised before the trial court and normally could not be considered on appeal. However, Bigham alleges the error under his first appellate issue was of such a nature as to cause the trial court's judgment to be void, which, if correct, would now permit him to present that point of error on appeal. See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). The thrust of Bigham's argument is this: the State's motion to revoke community supervision was insufficient to invoke the trial court's jurisdiction over the issues raised in that motion because the motion did not allege violations other than those that had been presented in the pre-modification revocation motion. Without an adequate instrument to invoke the trial court's subject-matter jurisdiction, Bigham argues that the trial court's judgment is void based on the post-modification revocation motion.
We addressed this preservation issue in our opinion issued today in Bigham v. State, cause number 06-06-00214-CR. In that case, we held that jeopardy did not bar the State from raising anew the same allegations it had raised in the pre-modification revocation motion and that the trial court's judgment was, therefore, not void. The factual and legal posture of this case is identical to Bigham, cause number 06-06-00214-CR. Therefore, for the reasons stated in that opinion, we similarly conclude Bigham's failure to raise the subject matter of his first point of error at the trial level now precludes our consideration of it at the appellate level.
Yet, even if we considered the merits of Bigham's argument, we would conclude that no error occurred, and we reach that conclusion for the same reasons already expressed in our other opinion issued today in Bigham, cause number 06-06-00214-CR. We overrule Bigham's first and second points of error.
In his final point of error, Bigham contends the evidence is insufficient to support the trial court's decision to revoke his community supervision. We review a trial court's decision to revoke a defendant's community supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). Proof of a single violation, by a preponderance of the evidence, will support a trial court's decision to revoke the defendant's community supervision. Id. at 763-64; Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.--Tyler 2002, no pet.).
The trial court received testimony at the revocation hearing from both Verlinda McCalla (Bigham's community supervision officer) and Bigham. McCalla testified that Bigham (1) failed to report to his community supervision officer during the months of September and October, 2005; (2) failed to pay his court costs, his fine, and his court-appointed attorney's fees as prescribed in this case; and (3) has repeatedly failed urinalysis tests and has admitted using crack cocaine while on community supervision. During Bigham's testimony, he admitted to the trial court that he had used cocaine as recently as two weeks before the revocation hearing. He also admitted having a positive urinalysis test result for cocaine on August 7. He further affirmed that he had previously admitted to McCalla that he had been using crack cocaine while on community supervision.
In ruling on the State's motion to revoke Bigham's community supervision, the trial court made oral findings of fact and conclusions of law. The trial court found that the State had proved (1) Bigham failed to report to his community supervision officer in September and October, 2005; (2) Bigham had failed to pay his court costs as directed by the trial court and was thereby in arrears; and (3) Bigham had violated his community supervision by using cocaine in violation of the prohibition against using illegal drugs or narcotics. Based on those findings, the trial court revoked Bigham's community supervision.
The testimony heard by the trial court clearly supports the trial court's findings of fact and conclusions of law. The State met its burden of proving at least a single violation by a preponderance of the evidence in that Bigham himself admitted using cocaine while on community supervision. Therefore, the record before us does not demonstrate the trial court abused its discretion by revoking Bigham's community supervision.
For the reasons stated, we overrule each of Bigham's points of error and affirm the trial court's judgment.
Bailey C. Moseley
Justice
Date Submitted: July 13, 2007
Date Decided: August 1, 2007
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In his first point of error, Stevens argues the trial court lacked jurisdiction because the indictment was so defective as to be a nonindictment. A judgment is void in very rare situations, usually due to a lack of jurisdiction. The indictment in this case provides as follows in pertinent part:
knowingly deliver, by actual transfer, to C. Payne, a controlled substance, namely, a material, compound, mixture, or preparation in an amount of four grams or more but less than two-hundred grams, that contained a quantity of 3,4-methyldioxymethamphetamine . . . .
The indictment clearly alleges that Stevens possessed a controlled substance. However, the compound alleged 3,4-methyldioxymethamphetamine is not listed in the Texas Controlled Substances Act. See Tex. Health & Safety Code Ann. §§ 481.001–.205 (Vernon 2003 & Supp. 2005). The Texas Health and Safety Code, though, does include a compound entitled 3,4-methylenedioxy methamphetamine. Tex. Health & Safety Code Ann. § 481.103. The compound described in the Texas Health and Safety Code contains the letters "ene," which are not included in the indictment.
In support of his argument, Stevens cites Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995), and Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). In Cook, a fractured Texas Court of Criminal Appeals held that an indictment is not required to charge every element of an offense in order to vest jurisdiction with the trial court, with the proviso that an indictment must charge a person with a criminal offense. Cook, 902 S.W.2d at 477–78. In Duron, the Texas Court of Criminal Appeals explained that the indictment must allege an offense with enough specificity and clarity that the defendant can ascertain the penal statute under which the State intends to prosecute. Duron, 956 S.W.2d at 550–51.
Historically, "fundamental" errors in the indictment could be challenged at any point in the proceedings. See, e.g., Morris v. State, 13 Tex. App. 65, 71 (1882); see also Cook, 902 S.W.2d at 476. In 1985, Texas voters approved an amendment to Section 12 of Article V of the Texas Constitution that a defect of form or substance in an indictment is waived if no objection is made before the date trial commences and that the presentation of an indictment or information vests the trial court with jurisdiction over the case. Tex. Const. art. V, § 12; see Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990); see also Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005), arts. 21.01–.31 (Vernon 1989 & Supp. 2005).
However, an instrument which is not an "indictment" under Article V, Section 12 of the Texas Constitution fails to vest the trial court with jurisdiction and can be raised for the first time on appeal. See Duron, 956 S.W.2d at 555; Cook, 902 S.W.2d at 479–80. "[T]o comprise an indictment within the definition provided by the constitution, an instrument must charge: (1) a person; (2) with the commission of an offense." Cook, 902 S.W.2d at 476. "[A] written instrument is an indictment or information under the Constitution if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the indictment is otherwise defective." Duron, 956 S.W.2d at 550–51. The issue presented to this Court is whether the omission of the letters "ene" prevents the charging instrument from describing the crime with enough clarity and specificity to identify the relevant penal statute.
Stevens argues that 3,4-methyldioxymethamphetamine is a mere "jumble of letters that means nothing." The State responds, although the record is not clear whether 3,4-methyldioxymethamphetamine is a salt or isomer of 3,4-methylenedioxy methamphetamine, the compounds are essentially identical and no reasonable person would be confused. Although the indictment in this case misspelled the scientific name of the controlled substance, the indictment provided sufficient notice to the defendant. In general, the mere misspelling of a name does not prevent an indictment from alleging an offense, provided the indictment nevertheless provides the necessary notice of the statutory offense. See Cantu v. State, 944 S.W.2d 669, 671 (Tex. App.—Corpus Christi 1997, pet. ref'd) ("heroin" misspelled as "herion"); Ex parte Eckrich, No. 02-04-00133-CR, 2004 Tex. App. LEXIS 5398 (Tex. App.—Fort Worth June 17, 2004, no pet.) (mem. op.) (not designated for publication) ("3,4-methylenedioxy methamphetamine" misspelled as "3,4-theylenedioxy methamphetamine"); see also Fitts v. State, 982 S.W.2d 175, 184 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) ("remuneration" misspelled as "renumeration"); Enriquez v. State, No. 08-02-00005-CR, 2004 Tex. App. LEXIS 6480 (Tex. App.—El Paso July 21, 2004, no pet.) (not designated for publication) ("benefit" misspelled as "bebfit"). Given the similarity between the names of the compounds and that the indictment clearly provides Stevens was accused of delivery of a controlled substance, no reasonable person would have been confused that the State was alleging delivery of a controlled substance listed in penalty group 2 of the Texas Controlled Substances Act. Such a conclusion is particularly true when one considers that scientific names appear excessively complex to most laymen. The indictment, even with the misspelled word, accused Stevens of a crime with enough clarity and specificity to identify the penal statute under which the State intended to prosecute. As such, Stevens was not deprived of the screening function of a grand jury. The typographical error in the spelling of the scientific name of the compound is not sufficient to deprive Stevens notice of the crime of which he was accused or to deprive the trial court of jurisdiction. We overrule Stevens' first point of error.
For the reasons stated, we affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: April 21, 2006
Date Decided: May 2, 2006
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