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White v. State

Court of Criminal Appeals of Texas

February 15, 2017

WILLIAM DEWAYNE WHITE, Appellant
v.
THE STATE OF TEXAS

         ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS FANNIN COUNTY

          Keller, P.J., and Keasler, Alcala, Richardson, Keel and Walker, JJ., joined. Hervey and Newell, JJ., concurred in the result.

          OPINION

          Yeary, J.

         Appellant was convicted of the offense of delivery of less than a gram of methamphetamine in a drug free zone, a third degree felony. Tex. Health & Safety Code §§ 481.112(a), (b); 481.134(d). His punishment was enhanced with a prior felony to a second degree felony, Tex. Penal Code § 12.42(a), and the trial court assessed his sentence at fifteen years' confinement in the penitentiary. On appeal, he urged the Sixth Court of Appeals to hold that the evidence was insufficient to support his conviction because it failed to establish that he knew he was in a drug free zone when he sold the methamphetamine. The court of appeals rejected this contention, holding that the statute does not require proof that a defendant had such an awareness. White v. State, 480 S.W.3d 824, 827 (Tex. App.-Texarkana 2015).[1] We granted Appellant's petition for discretionary review in order to examine this construction of the statutes in question, and we now affirm.

         The indictment alleged that Appellant delivered less than a gram of methamphetamine to a confidential informant "within 1, 000 feet of the premises of a youth center, to wit: the Family Life Center." Methamphetamine is a Penalty Group 1 controlled substance. Tex. Health & Safety Code § 481.102(6). The knowing delivery of a Penalty Group 1 controlled substance is an offense. Tex. Health & Safety Code § 481.112(a). This is a nature-of-conduct offense, and the statute expressly assigns culpable mental states to the nature of the conduct: A defendant must be aware that he is delivering a Penalty Group 1 substance to be guilty. See, e.g., Blackman v. State, 350 S.W.2d 588, 594 (Tex. Crim. App. 2011) (in order to convict a defendant for possession of a controlled substance with intent to deliver, the State must prove he knew that the substance in his possession was contraband). According to a different subsection of the same statute, if the amount he delivers is less than one gram, then the defendant is guilty of a state jail felony. Tex. Health & Safety Code § 481.112(b).

         By virtue of a separately enumerated statute, the delivery of less than one gram of a Penalty Group 1 substance becomes a third degree felony if, among alternative circumstantial elements, "it is shown on the trial of the offense" that it was committed "within 1, 000 feet of . . . the premises of a public or private youth center[.]" Tex. Health & Safety Code § 481.134(d).[2] This separate statutory provision does not contain any explicit culpable mental state with respect to the added circumstance surrounding conduct that elevates the knowing delivery of less than a gram of a Penalty Group 1 substance from a state jail felony to the level of a third degree felony. Appellant argues that we should nevertheless construe Section 481.134(d) to require an additional culpable mental state. A person cannot "intend" a circumstance surrounding conduct, of course, [3] so Appellant maintains that we should hold that Section 481.134(d) requires proof that he knew the delivery took place within 1, 000 feet of the youth center before he may be convicted of the third degree felony offense.

         The court of appeals rejected this contention on the strength of its own precedent and that of several other courts of appeals. White, 480 S.W.3d at 827 (citing Bridges v. State, 454 S.W.3d 87, 88 (Tex. App.-Amarillo 2014, pet. ref'd), and Williams v. State, 127 S.W.3d 442, 445 (Tex. App.-Dallas 2005, pet. ref'd)); see also Fluellen v. State, 104 S.W.3d 152, 166 (Tex. App.-Texarkana 2003, no pet.). All of these lower court opinions relied for their primary authority on this Court's opinion in Uribe v. State, 573 S.W.2d 819, 821 (Tex. Crim. App. 1978). And, indeed, Uribe provides an apt analogy.

         In Uribe, the defendant was prosecuted for the offense of unlawfully carrying a weapon. At that time, it was unlawful under Section 46.02(a) of the Penal Code for a person to intentionally, knowingly, or recklessly carry on or about his person a handgun, illegal knife, or club.[4] That offense ("UCW") was ordinarily a Class A misdemeanor, but under Subsection (c) of the same statute, the offense was raised to "a felony of the third degree if it occur[red] on any premises licensed or issued a permit by this state for the sale or service of alcoholic beverages." 573 S.W.2d at 821. Uribe argued that the indictment was insufficient to allege the third degree felony because it did not allege that he was aware that the premises upon which he carried the weapon was authorized to sell or serve alcohol. We rejected this argument, holding that the offense, as defined in Subsection (a), already defined an offense that was complete unto itself, and that boosting the level of that offense to a third degree felony offense under Subsection (c) "does not require a culpable mental state beyond that contained in Subsection (a)." Id. We contrasted Section 46.02 with then-Section 46.04 of the Penal Code, [5] a provision that made it an offense to carry a firearm on certain specified premises. Because Section 46.04 made it an offense for a person to carry a firearm only if he did so on those specific premises, we observed, it was clear that the entry onto the premises was an element that required a culpable mental state. Id. By comparison, because Section 46.02(a), the UCW statute, made it a complete offense to carry certain weapons anywhere, we concluded that there was no apparent intent on the Legislature's part to impose an additional culpable mental state with respect to the circumstance surrounding conduct that made it a felony, as described in Subsection (c). Id. at 821-22.

         The statutory provisions at issue here operate similarly to the former UCW statute. Section 481.112(a) defines an offense that is complete in itself, including a culpable mental state of knowledge with respect to the nature of conduct proscribed. By assigning that offense as a state jail felony based upon the amount delivered in Subsection (b) of Section 481.112, the Legislature has not created a separate offense requiring additional knowledge of the circumstance that the amount delivered was less than one gram. Likewise, when Section 481.134(d) converts that state jail felony into a third degree felony if committed within 1, 000 feet of a youth center, it has not created a separate offense that necessarily requires an additional culpable mental state with respect to the drug free zone. It has simply re-calibrated the seriousness of the core offense of delivery of a Penalty Group 1 substance according to 1) how much was delivered, and 2) whether it was delivered in a location with the grave potential to compromise the welfare of our young people.

         Whether the statutory provisions should be construed to require a showing of an additional culpable mental state with respect to these circumstantial elements that define the level of the offense is a question of legislative intent. See Schultz v. State, 923 S.W.2d 1, 2 (Tex. Crim. App. 1996) (plurality opinion) (in ascertaining whether the child-abandonment statute required only proof that the defendant intentionally abandoned the child, or also required proof that he was aware of the attendant circumstances that rendered leaving the child an "abandonment, " "our duty is to effectuate the intent of the Legislature in enacting the statute"). Section 481.134(d) makes no express mention of an additional knowledge requirement with respect to any of the drug free zones it identifies; it does not say a defendant must be aware that (or reckless with respect to whether) his delivery took place there. In the context of an offense that otherwise does prescribe a culpable mental state, the lack of express language requiring an additional mens rea with respect to other elements is a "compelling" indication that the Legislature did not intend an additional culpable mental state. See Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013) (plurality opinion) (citing Aguirre v. State, 22 S.W.3d 463, 473 (Tex. Crim. App. 1999), for the proposition that "the prescription of a mental state as to certain portions of a statute, but not as to others, is compelling evidence that the Legislature intended to dispense with a mental state as to the latter").

         Even so, Appellant argues, Section 6.02(b) of the Penal Code requires us to read an additional culpable mental state into Section 481.134(d).[6] Section 6.02(b) reads: "If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element." Tex. Penal Code § 6.02(b).[7] It is indeed true that, even when a statute expressly assigns a culpable mental state to one element of an offense, we have sometimes discerned a legislative intent to assign a culpable mental state to some other element as well, though the statute may not unambiguously do so. See, e.g., Delay v. State, 465 S.W.3d 232, 251 (Tex. Crim. App. 2014) ("[W]hen construing provisions within the Penal Code, we have typically resolved ambiguities with respect to the scope of the applicable mens rea in favor of making sure that mental culpability extends to the particular circumstance that renders otherwise innocuous conduct criminal."). Appellant relies upon McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989), for the proposition that we must assign a culpable mental state "to those elements of an offense that separate lawful conduct from criminal conduct." Appellant's Brief at 18. His reliance upon McQueen, however, is misplaced.

         As was the case in Celis, the facts of McQueen are "distinguishable in two ways" from the facts of the present case. 416 S.W.3d at 427-28. First of all, in McQueen, we noted that the language of the unauthorized use of a motor vehicle statute was ambiguous with respect to whether the prescribed culpable mental state modified only the conduct element of "operating" the motor vehicle, or also modified the circumstantial element-the lack of the owner's effective consent. 781 S.W.2d at 603-04 (noting the "confusion" attendant on the fact that "intentionally or knowingly" seemed syntactically to modify the "operating" element). There is no such ambiguity in the statutory provisions at issue here. The question in this case is not "how far down the sentence the word 'knowingly' is intended to travel[.]" Liparota v. United States, 471 U.S. 419, 424 n.7 (1985) (quoting W. LaFave & A. Scott, Criminal Law § 27 (1972)). The culpable mental state of knowingly delivering a Penalty Group 1 controlled substance, contained in Section 481.112(a), cannot possibly be read to apply to the drug free zone circumstance, contained in Section 481.134(d), that boosts the offense from a state jail felony to a third degree felony. Instead, it is a question of whether we should incorporate a culpable mental state requirement into a distinct statutory provision-Section 481.134(d)-that is patently silent with respect to mens rea. In addressing this question, we must be mindful that Section 6.02(b) of the Penal Code requires us to append a culpable mental state to an "offense" that does not otherwise prescribe one-not to an enhancement statute that does not otherwise prescribe one.

         But this case is also different from McQueen in a second, more fundamental respect. We held that it was necessary in McQueen to construe the ambiguous culpable mental state also to modify the circumstantial element in the unauthorized use of a motor vehicle statute because, absent the circumstance surrounding conduct as defined by the UCW offense, there would be no culpable mental state assigned to the very element that differentiated lawful from unlawful conduct. Id. at 603 ("What makes the conduct unlawful is that it is done under certain circumstances, i.e., without the owner's permission."). To intentionally or knowingly operate a motor vehicle is a perfectly lawful activity when it is with the owner's effective consent. The same is not true of selling a controlled substance; that conduct is unlawful regardless of whether it occurs in a drug free zone. The knowing delivery of a Penalty Group 1 substance is an actionable offense anywhere it happens in Texas. That the sale takes place within 1, 000 feet of a youth center is not a circumstance that is necessary to render otherwise innocuous conduct wrongful. The Legislature may well have intended that one who is already engaged in the unlawful sale of contraband should have to bear the risk that, if he does so at or near certain designated locations, the gravity of his offense will be elevated regardless of whether he was aware of his proximity to that location.[8] The drug free zone circumstance does not separate lawful from unlawful conduct, as Appellant's argument presumes. Rather, it separates already-unlawful conduct from even more egregiously unlawful conduct. There is no particular requirement that the Legislature append a culpable mental state to the elevating circumstance. See United States v. X-Citement Video, 513 U.S. 64, 72 n.3 (1994) ("Criminal intent serves to separate those who understand the wrongful nature of their act from those who do not, but does not require knowledge of the precise consequences that may flow from that act once aware that the act is wrongful."). "[C]ourts generally have not required proof of an additional culpable mental state when a statute has already prescribed a culpable mental state as to at least one element of the offense." Celis, 416 S.W.3d at 428 n.13.

         Moreover, when it comes to the protection of children, we have frequently declined to impose a culpable mental state upon a circumstance-surrounding-conduct element of the offense in the absence of an express assignment of such a mental state-even when it was a circumstance that elevated the level of the offense. See, e.g., Aguirre, 22 S.W.3d at 475 & n.48 (recognizing cases in which this Court has declined to impose a culpable mental state with respect to "the element of a child's age in statutes that protect children"); Johnson v.State, 967 S.W.2d 848, 849-50 (Tex. Crim. App. 1998) ("[T]his Court has previously held that in cases involving sexual assault of a child, such as rape of a child or indecency with a child, the State is not required to show that appellate knew the victim to be younger than 17 years of age."). It is the extremely tender age of the child, for example, that elevates statutory rape in some instances to the level of an aggravated sexual assault. See Tex. Penal Code ยง 22.011(a)(2)(B) ...


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