Jerry Lee Kershaw A/K/A Jerry Davis v. State

Opinion filed April 6, 2006

Opinion filed April 6, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00076-CR

                                                     __________

                 JERRY LEE KERSHAW A/K/A JERRY DAVIS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 104th District Court

                                                          Taylor County, Texas

                                                 Trial Court Cause No. 14,624-B

                                                                   O P I N I O N

The jury convicted Jerry Lee Kershaw a/k/a Jerry Davis of two offenses:  possession of cocaine with intent to deliver (a first degree felony) and possession of cocaine (a second degree felony).  See Tex. Health & Safety Code Ann. ' 481.102(3)(D) (Vernon Supp. 2005), '' 481.112(a), (d), 481.115(a), (d) (Vernon 2003).  Upon making a finding of Atrue@ to a prior felony alleged by the State for enhancement purposes, the trial court sentenced appellant to confinement in the Institutional Division of the Texas Department of Corrections for terms of 18 years on both counts with the sentences to be served concurrently.  We affirm the conviction for possession with intent to deliver and reverse the conviction for possession.

                                                               Background Facts

Officer Adam Lopez of the Abilene Police Department observed a vehicle being driven in a high drug activity area at approximately 9:30 p.m. on December 21, 2002, with an inoperative license plate light.  Officer Lopez ran a computer check on the vehicle=s license plate prior to stopping it.  The computer check revealed that the vehicle=s registration had expired.  The check also revealed that the vehicle was involved in appellant=s arrest for possession of a controlled substance approximately one month to six weeks earlier.

After stopping the vehicle, Officer Lopez determined that appellant was the driver. Officer Lopez further determined that appellant did not have a valid driver=s license.  Upon making his initial contact with appellant, Officer Lopez requested the assistance of a canine unit to aid with the stop.  He based this request on the proximity of the vehicle to a high drug activity area and appellant=s previous arrest for narcotics.

The canine unit arrived at the location approximately four to five minutes later. Officer Lopez testified that he had not completed writing the traffic citations he intended to issue  appellant prior to the arrival of the canine unit. The dog alerted on the driver=s side door of the vehicle during a Afree air sniff@ conducted around it.  The canine officer, Kevin Easley, searched the interior of the vehicle after the dog alerted on the car=s exterior.  His search of the vehicle did not reveal any contraband.  However, the dog alerted on the driver=s seat during the interior search of the vehicle. While Officer Easley searched inside of the vehicle, Officer Lopez conducted a pat-down search of appellant. As Officer Lopez patted down appellant=s leg, several off-white rock-like items fell out of his pants onto the street. 

                                                            Double Jeopardy Issue

The parties presented a double jeopardy issue to the court at oral argument which was not addressed in the briefs filed in this appeal.^[1]  As noted previously, the jury convicted appellant of two offenses:  possession of cocaine with the intent to deliver and possession without any specified intent.  Both of the offenses are supported by the same physical evidence C approximately thirty-five off-white rock-like substances with a combined weight of 8.71 grams which Officer Lopez seized from appellant on December 21, 2002. Appellant contends that he cannot be convicted of two possession offenses for possessing the same quantity of a controlled substance on a single occasion.  See Lopez v. State, 108 S.W.3d 293, 298-99 (Tex. Crim. App. 2003).

The Fifth Amendment protects against multiple punishments for the same offense.  Id. at 295-96.   The court of criminal appeals held in Lopez that a defendant cannot be prosecuted for both delivery of a controlled substance and possession of a controlled substance with the intent to deliver when the charged offenses involve the same substance.  Id. at 299.  The reasoning in Lopez

is applicable to this case because both of the possession offenses involve the same substance. 

The State acknowledged at oral argument that the conviction of appellant for multiple possession offenses under the facts of this case violates double jeopardy.^[2]  Pursuant to the State=s concession, appellant=s conviction for the second degree felony of possession of cocaine under Section 481.115 of the Texas Health and Safety Code is reversed, and a judgment of acquittal is rendered on this conviction.

                                                               Motion to Suppress

In his first issue, appellant contends that the trial court erred in overruling his pretrial motion to suppress the physical evidence which Officer Lopez seized from him. Appellant does not contest the reasonableness of Officer Lopez=s decision to initiate the traffic stop.  However, he challenges the duration of the stop.   He asserts that Officer Lopez lacked sufficient justification for continuing his detention while waiting on the canine unit to arrive.

In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.  2000). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo.  Id.; Davila v. State, 4 S.W.3d 844, 847-48 (Tex. App.C Eastland 1999, no pet.). Absent a showing of an abuse of discretion, the trial court=s finding should not be disturbed. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985).

 An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.  Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997).  During an investigative traffic stop, an officer is entitled to request information concerning the driver=s license, ownership of the vehicle, and the driver=s insurance information. See id. at 245 n.6; McQuarters v. State, 58 S.W.3d 250, 255-56 (Tex. App.CFort Worth 2001, pet. ref=d).  An officer is also permitted to check for outstanding warrants.  See Davis, 947 S.W.2d at 245 n.6. Once an officer concludes the investigation of the conduct that initiated the stop, the continued detention of a person is permitted only if there is reasonable suspicion to believe another offense has been or is being committed.  Id. at 245.

Appellant contends that Officer Lopez lacked reasonable suspicion to continue detaining him while awaiting for the arrival of the canine unit.  He cites McQuarters in support of his contention.  The police officer in McQuarters stopped a driver for a suspected traffic violation.  58 S.W.3d at 255.  The officer did not seek to conduct a canine search of the vehicle until after he issued two traffic warnings to the driver.  Id. at 256.  Since the officer had effectuated the initial purpose of the stop when he issued the warnings to the driver, the court of appeals examined the record to determine if the officer had reasonable suspicion for further detaining the driver. Id. at 256-58.   The court concluded that the officer did not have a sufficient basis for continuing the driver=s detention after issuing the traffic warnings. Id.

The analysis used in McQuarters is not applicable to this appeal.  Unlike the situation in McQuarters, the canine search of appellant=s vehicle occurred prior to Officer Lopez=s issuance of the traffic citations to appellant. We note that the canine search occurred within a relatively short amount of time after Officer Lopez initiated the stop. Thus, the canine search occurred before the completion of Officer Lopez=s work in effectuating the initial purpose of the stop.  Officer Lopez=s original basis for initiating the stop constituted a sufficient justification for appellant=s detention at the time the canine search occurred.  Appellant=s first issue is overruled. 

                                                    Objection to the Court=s Charge

In his second issue, appellant asserts that the trial court erred in overruling his objection to the inclusion of the statutory definition of Acontrolled substance@ in the court=s charge.  See Tex. Health & Safety Code Ann. ' 481.002(5) (Vernon Supp. 2005).  Appellant bases his argument on the contention that the statutory definition of Acontrolled substance@ is unconstitutionally vague and unintelligible. We  disagree.^[3]

When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The burden is on the party challenging the statute to establish that it is unconstitutional. Granviel, 561 S.W.2d at 511. In order to establish that a statute is unconstitutional on its face, the challenger must establish that no set of circumstances exists under which the statute would be valid.  Briggs v. State, 740 S.W.2d 803 (Tex. Crim. App. 1987). A person who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989). Accordingly, when challenging a statute for vagueness, a defendant must show that the statute as it applies to him in his situation is unconstitutional. Bynum, 767 S.W.2d at 774; Briggs, 740 S.W.2d at 803.

A criminal statute is not vague if (1) it gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited and (2) it provides sufficient notice to law enforcement to prevent arbitrary or discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108‑09 (1972); State v. Edmond, 933 S.W.2d 120, 125 (Tex. Crim. App. 1996); Long v. State, 931 S.W.2d 285, 287 (Tex. Crim. App. 1996). A statutory provision need not be mathematically precise; it need only give fair warning in light of common understanding and practices. Grayned, 408 U.S. at 110.

In this case, appellant possessed several rock-like substances containing cocaine. The evidence indicated that each of the rock-like pieces constituted a usable unit of cocaine to be smoked in a crack pipe.  The statute clearly provided that it was illegal to possess a controlled substance and that the aggregate weight of any mixture or solution would be used to determine the amount of controlled substance possessed. We hold that appellant has not established that Section 481.002(5) is unconstitutionally vague as applied to him in his situation.  Moreover, the language in Section 481.002(5) clearly states that the term Acontrolled substance@ Aincludes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.@ A person of ordinary intelligence should know what conduct is prohibited given the definition of controlled substance in Section 481.002(5). Furthermore, the definition is sufficient to notify law enforcement and to prevent the arbitrary or discriminatory enforcement of the statute.  Appellant=s second issue is overruled.

                                  Sufficiency of the Indictment=s Enhancement Allegation

Appellant asserts that the trial court erred in denying his AMotion to Quash Prior Conviction Alleged for Enhancement.@  The indictment contained the following enhancement allegation:

AND THE GRAND JURORS AFORESAID, do further present that prior to the commission by the said JERRY LEE KERSHAW AKA JERRY DAVIS of the offense which is hereinabove charged against him, he, the said JERRY LEE KERSHAW AKA JERRY DAVIS was duly and legally convicted on the 16th day of January, 1998 in the 42nd District Court of Taylor County, Texas of a felony offense, to-wit: POSSESSION OF COCAINE in Cause Number 17794-A, said Cause being styled the State of Texas vs. JERRY DAVIS, being one and the same as the said JERRY LEE KERSHAW AKA JERRY DAVIS, and after the judgment of conviction had become final against him, he, the said JERRY LEE KERSHAW AKA JERRY DAVIS committed the offense hereinabove alleged.      

He contends that the enhancement allegation was insufficient because it did not allege the degree of felony of the prior conviction for possession of cocaine.  Appellant argues that the allegation is defective because it seems to permit a state jail felony conviction for possession of cocaine to enhance the applicable punishment range for a first degree felony.  See Tex. Pen. Code Ann. ' 12.42(c)(1), (e) (Vernon Supp. 2005).  We note that appellant does not allege that he was convicted of a state jail felony in Cause No. 17794-A.  To the contrary, the documents from Cause No. 17794-A indicate that appellant was convicted of third degree possession of cocaine in the previous proceeding. Appellant=s complaint is solely directed to the manner in which the indictment=s enhancement allegation described his previous conviction.  

The guilt/innocence phase of appellant=s jury trial occurred on January 10 and 11, 2005. The sentencing hearing occurred on February 17, 2005.  Appellant did not file his motion to quash the indictment until the day prior to the sentencing hearing.  The State argues that appellant waived any error concerning the sufficiency of the language of the indictment by not filing  his motion to quash the indictment prior to trial.  We agree. 

Ordinarily, a complaint regarding the adequacy of an indictment must be raised before trial to preserve the issue for appellate review.  See Tex. Code Crim. Pro. Ann. art. 1.14(b) (Vernon 2005);  Sanchez v. State, 120 S.W.3d 359, 364 (Tex. Crim. App. 2003); Steadman v. State, 160 S.W.3d 582, 584 (Tex. App.CWaco 2005, pet. ref=d).  Appellant asserts that he was excused from the requirements of Article 1.14(b) under the holdings in Steels v. State, 858 S.W.2d 636, 637 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d), and Wiltz v. State, 787 S.W.2d 511, 513 (Tex. App.CHouston [1st Dist.] 1990, no pet.).  Steels and Wiltz are distinguishable because the defendants in those cases were not complaining that the prior convictions were inadequately described in their respective indictments.  Instead, they were arguing that the alleged prior convictions could not be used for enhancement purposes. Since appellant is arguing that the indictment=s enhancement allegation was defective, he was required to raise the complaint by filing a pretrial motion.  See Steadman, 160 S.W.3d at 585.

Moreover, the State is not required to allege prior convictions for enhancement of punishment with the same particularity that is required in charging the primary offense.  Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986).  As the court of criminal appeals held in Morman v. State, 75 S.W.2d 886, 887 (Tex. Crim. App. 1934)(per curiam), overruled on other grounds, Rooks v. State, 576 S.W.2d 615 (Tex. Crim. App. 1978), an Aaccused is entitled to a description of the judgment of former conviction that will enable him to find the record and make preparation for a trial of the question whether he is the convict named therein.@  The enhancement allegation in this case provided appellant with ample information regarding the previous felony conviction alleged by the State.  It informed appellant of the court in which the conviction was obtained, the time of the conviction, and the nature of the offense.  See Hollins v. State, 571 S.W.2d 873, 876 (Tex. Crim. App. 1978).  Appellant=s third issue is overruled. 

                                                               This Court=s Ruling

The portion of the trial court=s judgment convicting appellant of second degree possession of cocaine is reversed, and a judgment of acquittal is rendered.  The portion of the judgment convicting appellant of first degree possession of cocaine with intent to deliver is affirmed.

TERRY McCALL

JUSTICE

April 6, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

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^[1]A double jeopardy claim may be raised for the first time on appeal when (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and (2) the enforcement of the usual rules of procedural default serves no legitimate state interests. See Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).

^[2]The State discovered the double jeopardy violation during the pendency of this appeal and advised appellant=s counsel of the problem prior to oral argument.   We commend the State for bringing this matter to the attention of the court and opposing counsel. 

^[3]We have previously held that a hypothetically correct jury charge would include the definition of Acontrolled substance@ found in Section 481.002(5).  Lilly v. State, 119 S.W.3d 900, 905  (Tex. App.CEastland 2003, pet. ref=d); see Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).