ON
STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE
ELEVENTH COURT OF APPEALS BROWN COUNTY
Newell, J., delivered the opinion of the Court, in which
Keasler, Hervey, Richardson, Yeary, Keel, Walker, and
Slaughter, JJ., joined. Keller, P.J., concurred.
NEWELL, J.
Shanna
Lynn Hughitt was charged with and convicted of engaging in
organized criminal activity ("engaging") based on
the predicate offense of possession of a controlled substance
with intent to deliver. The issue here is whether that
offense-possession of a controlled substance with intent to
deliver-is a valid predicate offense for the crime of
engaging.
The
issue turns on whether the phrase "unlawful manufacture,
delivery" as it modifies "controlled
substance" in Section 71.02(a)(5) of the Texas Penal
Code references the offense of "possession of a
controlled substance with intent to deliver." If it
does, then possession with intent to deliver is a predicate
offense. If not, then it is not. The court of appeals
concluded that the words "manufacture, delivery"
were inconsistent with the offense of "possession with
intent to deliver." Consequently, the court of appeals
held that possession with intent to deliver was not a
predicate offense for the crime of engaging. We agree and
affirm.
I.
Background
Shanna
Lynn Hughitt was living with Kevin Sliger, a self-described
drug addict and methamphetamine dealer. The Brown County
Sheriff's Office was conducting an investigation into
methamphetamine distribution in Brownwood, Texas. In
furtherance of that investigation, the Sheriff's Office
executed a search warrant at Hughitt and Sliger's home.
When
executing the warrant, police found Sliger in the dining room
with illegal drugs on his person. Hughitt was found in a
bedroom with about one gram of meth and a glass pipe under
her clothes. There was also an ounce of marijuana in the
bedroom closet and a gallon-sized ziploc bag with meth
residue under the mattress. Other items found in the house
included cash, drug packaging, rolling papers, syringes,
scales, a digital police scanner, and a large amount of MSN
"cut."[1]
The
State charged Hughitt with the offense of engaging predicated
on committing the offense of possession of a controlled
substance with intent to deliver.[2] Hughitt filed a motion to
quash the indictment, arguing that possession of a controlled
substance with intent to deliver is not a predicate offense
under the engaging statute. In other words, prior to trial,
Hughitt asserted that the indictment failed to allege the
offense of engaging.[3] The trial court denied the motion. Hughitt
proceeded to trial, and a jury found her guilty. The trial
court sentenced Hughitt to 18 years' imprisonment.
Hughitt
appealed, arguing, among other things, that the trial court
erred in denying her motion to quash the indictment. The
court of appeals agreed, holding that possession with intent
to deliver is not a predicate offense under the engaging
statute.[4] The court of appeals reasoned that the
engaging statute only lists manufacture or delivery of a
controlled substance as relevant possible predicate
offenses-not the distinct offense of possession with intent
to deliver.[5] The court further explained that
incorporating possession with intent to deliver into
"unlawful manufacture, delivery, . . . of a controlled
substance" in Section 71.02(a)(5) would be inconsistent
with the Health and Safety Code's definitions of
"manufacture" and
"delivery."[6] Thus, the court of appeals in this case
vacated Hughitt's engaging conviction and dismissed the
indictment because the indictment failed to allege an offense
under the engaging statute.
The
State Prosecuting Attorney's Office filed a petition for
discretionary review with this Court. The SPA argues that the
court of appeals erred in vacating the conviction and
dismissing the indictment. The SPA asks us to hold that
possession with intent to deliver is a predicate offense
under the engaging statute. We decline to do so.
II.
Standard of Review and Applicable Law
"An
'indictment' is the written statement of a grand jury
accusing a person therein named of some act or omission
which, by law, is declared to be an
offense."[7] In other words, an indictment must state
facts that, if proved, show an actual violation of the
law.[8]
The sufficiency of an indictment is a question of
law.[9]
When reviewing the denial of a motion to quash turns solely
upon the issue of the sufficiency of the indictment, we
review the trial court's decision de
novo.[10]
Generally,
an indictment that tracks the language of the applicable
statute will satisfy constitutional and statutory
requirements.[11] The first step in this analysis is to
identify the elements of the offense.[12] Here, the
State argues that the predicate offense of possession of a
controlled substance with intent to deliver can be an element
of the offense of engaging. Hughitt argues that it cannot. To
determine who is correct, we must analyze the engaging
statute to determine whether the indictment alleges the
necessary elements of the offense charged.
Our
precedents hold that, when interpreting a statute, we seek to
effectuate the "collective" intent or purpose of
the legislators who enacted the legislation.[13] We read the
statute as a whole and give effect to the plain meaning of
the statute's language, unless the statute is ambiguous
or the plain meaning leads to absurd results.[14] To determine
plain meaning, we look to the statute's literal text and
construe the words according to rules of grammar and
usage.[15] We presume that every word in a statute
has been used for a purpose and that each word, clause, and
sentence should be given effect if reasonably
possible.[16]
III.
The Words "Manufacture, Delivery" in Section
71.02(a)(5) Do Not Reference the Distinct Offense of
"Possession of a Controlled Substance With Intent to
Deliver"
Section
71.02 of the Penal Code makes it an offense to engage in
organized criminal activity.[17] A person commits that offense
if the person "commits or conspires to commit one or
more" predicate offenses (with the specific intent
described in the statute).[18] Part (a) of Section 71.02
lists the predicate offenses for engaging. Subsection
(a)(5)-the subsection at issue here-lists as a predicate:
unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous
drug or unlawful possession of a controlled substance or
dangerous drug through forgery, fraud, misrepresentation, or
deception.[19]
Here,
only the first clause of (a)(5) is at issue. Both parties
assert that the statutory language-"unlawful
manufacture, delivery, . . . of a controlled
substance"-is unambiguous. And we agree. However, the
parties disagree on the meaning of the statutory language and
how it should be interpreted. There is no question that
Section 71.02(a) does not explicitly include the crime of
"possession with intent to deliver" as a predicate
offense. The issue instead is whether our Legislature's
use of the words "manufacture, delivery" to modify
"controlled substance" includes, by way of
reference, the offense of "possession with intent to
deliver." We conclude that it does not.
In the
SPA's view, the words "manufacture, delivery"
in (a)(5) should be treated as a broader reference to offense
headings rather than as a description of specific offenses.
Treated as such, the use of the words "manufacture,
delivery" demonstrates the Legislature's intent to
include the offense of possession with intent to deliver as a
predicate offense for the greater offense of engaging. The
SPA asserts that, reading the original statute as a whole,
"most of the predicate offenses are listed by statutory
section heading." This suggests, according to the SPA,
that the phrase "manufacture, delivery . . . of a
controlled substance" is a reference to offense headings
in the Controlled Substances Act.[20]
The SPA
points to the fact that, "[w]hen the [engaging statute]
was created in 1977, there was a single, comprehensive
offense in the Controlled Substances Act with the section
heading 'Unlawful Manufacture or Delivery of Controlled
Substances.'"[21] Possession with intent to deliver was
an offense under that section heading.[22] In the
SPA's view, the Legislature intended to reference that
section heading in the Controlled Substances Act (which,
following some amendments, was codified in the Health and
Safety Code). Therefore, the SPA concludes,
"manufacture, delivery" includes the offense of
possession of a controlled substance with intent to deliver,
making it a predicate offense under the engaging statute.
We have
addressed the language of (a)(5) in another context. In
Nichols v. State, the appellant argued that (a)(5)
was vague because "deliver" and "controlled
substance" are not defined in the Penal
Code.[23]
We held
that the statute was not vague, reasoning:
We think it obvious that the references of Sec. 71.02(a)(5)
to "unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous
drug through forgery, fraud, misrepresentation, or
deception" are necessarily references to those offenses
as defined in the Controlled Substances Act and the Dangerous
Drugs Act.[24]
In a
possession with intent to deliver case, Lopez v.
State, we recognized the purpose of including possession
with intent to deliver under "manufacture or
delivery" offenses.[25] We stated ...