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Carter v. State

Court of Appeals of Texas, Seventh District, Amarillo

May 14, 2019

ANTHONY CARTER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

          On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2017-413-558, Honorable John J. McClendon, III, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          OPINION

          Brian Quinn Chief Justice

         Anthony Carter (appellant) appeals his conviction for possessing a controlled substance with intent to deliver and his 90-year prison sentence. He operated several smoke shops from which he sold, among other products, an item called "Chilly Willy" which contained the compound fluoro-ADB. Though fluoro-ADB was not expressly named as a controlled substance by Texas statute, several components of it allegedly were within Penalty Group 2-A of § 481.1031(b) of the Texas Health and Safety Code. Four issues pend for our review. After considering each, we affirm.

         Void Indictment

         Though not the first issue mentioned by appellant, we address it first. He contends that the indictment was void because it did not allege an offense. It purportedly failed to allege an offense because, through it, the State accused "Anthony Carter" of "knowingly possess[ing], with intent to deliver, 'Chilly Willy; 2g Chronic Hypnotic' which contains a compound controlled in Penalty Group 2-A, Chapter 481.1031(b)(5) of the Texas Health and Safety Code, to wit: fluoro-ADB, by aggregate weight including adulterants and dilutants 400 grams or more." As previously mentioned, fluoro-ADB was not expressly named as a controlled substance in that statutory provision. Because it was not, appellant believed the indictment failed to vest the trial court with subject-matter jurisdiction, which rendered the conviction void. We overrule the issue.

         The sufficiency of an indictment is a question of law. State v. Zuniga, 512 S.W.3d 902, 906 (Tex. Crim. App. 2017). Additionally, whether a charging instrument is sufficient and avers an offense depends on whether the statements therein "are clear enough that one can identify the offense alleged." Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007). In other words, we must assess if "the trial court (and appellate courts who gives deference to the trial court's assessment) and the defendant [can] identify what penal code provision is alleged and [whether] that . . . provision [is] one that vests jurisdiction in the trial court." Id. If the answer is yes, then the indictment is sufficient to vest the trial court with subject-matter jurisdiction. Id. If not, then the conviction is void for want of jurisdiction.

         Here, the indictment identified 1) the name of the accused and 2) the crime or offense of which he was accused. The former was "Anthony Carter," our appellant. The latter was "knowingly possess[ing]" 400 or more grams of a "compound controlled in Penalty Group 2-A [of] Chapter 481.1031(b)(5) of the Texas Health and Safety Code." Furthermore, possessing a controlled substance within that penalty group in a quantity having an aggregate weight of 400 or more grams was and is a felony. See Tex. Health & Safety Code Ann. § 481.1161 (b)(3) (West 2017) (stating that the offense is a state jail felony if the amount is, by aggregate weight, including adulterants and dilutants, five pounds or less but more than four ounces).[1] Appellant being identified as the accused and being told of the criminal statute he violated satisfied the requirements of Zuniga. So, the indictment was sufficient to vest the district court with subject-matter jurisdiction over the proceeding. See Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009) (finding that the indictment sufficiently alleged an offense within the district court's jurisdiction because it was returned in a felony court and on its face disclosed the name of the offense and the penal code provision assigned it). And, that the indictment failed to mention the particular compound or chemical within the litany of compounds and chemicals itemized within § 481.1031 (b)(5) does not alter our decision.

         Penalty Group 2-A encompasses "materials, compounds, mixtures, or preparations" containing certain specified natural or synthetic chemical substances listed within § 481.1031 (b). See Tex. Health & Safety Code Ann. § 481.1031 (b)(1)-(8) (West Supp. 2018) (naming the natural or synthetic chemical substances comprising the materials, compounds, mixtures, or preparations). If appellant were confused about or questioned whether "fluoro-ADB" or the chemicals comprising it fell within the category of prohibited materials, compounds, mixtures, or preparations, he could and should have objected to the indictment before trial. See Kirkpatrick, 279 S.W.3d at 329 (stating that "if [Kirkpatrick] had confusion about whether the State did, or intended to, charge her with a felony, she could have, and should have, objected to the defective indictment before the date of trial"). Because appellant did not do so, he waived his complaint. See Herrera v. State, No. 06-18-00111-CR, 2019 Tex.App. LEXIS 3018, at *2-3 (Tex. App.- Texarkana Apr. 15, 2019, no pet. h.) (mem. op., not designated for publication) (so holding when addressing a similar contention also involving fluoro-ADB).

         Sufficiency of the Evidence

         Next, appellant questions the sufficiency of the evidence underlying his conviction. His attack is directed at whether the State proved 1) he knowingly sold a controlled substance listed in § 481.1031(b)(5) and 2) the substance he was convicted of possessing fell within that provision. We overrule both issues.

         The pertinent standard of review is explained in Johnson v. State, 560 S.W.3d 224, 226 (Tex. Crim. App. 2018). We refer the parties to that opinion and forgo reiterating the standard here.

         Again, the controlled substance appellant allegedly possessed fell within § 481.1031(b)(5) of Penalty Group 2-A of the Texas Health and Safety Code. Per § 481.113 of the same Code, a person commits an offense if he "knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in . . . Penalty Group . . . 2-A." Tex. Health & Safety Code Ann. § 481.113(a) (West 2017). Therefore, securing a conviction under that statute obligated the State to prove not only that the substance in question was within § 481.1031(b)(5) but also that the accused (appellant) knew it was a substance within that provision. See White v. State, 509 S.W.3d 307, 309 (Tex. Crim. App. 2017) (involving a Penalty Group 1 controlled substance and stating that "[t]his 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"); Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011) (stating that to prove "the unlawful-possession-of-a-controlled-substance element of the charged offense in this case, the State was required to prove that: 1) appellant exercised control, management, or care over the three kilograms of cocaine; and 2) appellant knew that this was cocaine"). We first address if the State proved that the item possessed by appellant was a controlled substance under § 481.1031(b)(5).

         Proof Chilly Willy Was a ...


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