David Wayne Bryan v. State of Texas

11th Court of Appeals Eastland, Texas Opinion David Wayne Bryan Appellant Vs. No. 11-00-00379-CR C Appeal from Erath County State of Texas Appellee The jury convicted appellant of possession with intent to manufacture a controlled substance, methamphetamine, in an amount more than 4 grams and less than 200 grams and, assessed punishment at 25 years confinement. We affirm. There is no challenge to the sufficiency of the evidence. Scotty Chew, a former agent for the Stop the Offender Program Narcotics Task Force (S.T.O.P.), testified that on February 8, 2000, he was conducting surveillance on a residence after receiving information that appellant had been selling methamphetamine. Agent Chew testified that, while conducting surveillance, he observed a vehicle approach the residence that matched the description he had been given for appellant=s vehicle. The vehicle left, and Agent Chew intercepted the vehicle and arrested appellant for outstanding warrants. Agent Chew obtained a search warrant, executed the search warrant, and seized the methamphetamine. In his first point of error, appellant argues that the trial court erred in denying his motion to quash the indictment. The indictment alleged that appellant did Aintentionally or knowingly possess with intent to manufacture a controlled substance, to-wit: Methamphetamine, in the amount by aggregate weight, of four grams or more but less than 200 grams.@ Appellant contends that the indictment does not assert a crime because it is grammatically incorrect. Appellant asserts that Athe verb >possess= has no object@ and, therefore, that indictment does not charge him with the commission of an offense. A written instrument is an indictment or information under the Texas Constitution if it accuses someone of a crime with enough clarity and specificity to identify the statute under which the State intends to prosecute, even if the instrument is otherwise defective. Duron v. State, 956 S.W.2d 547 (Tex.Cr.App.1997). The indictment in the present case tracks the language of TEX. HEALTH & SAFETY CODE ANN. ' 481.112(a) (Vernon Supp. 2001). The indictment contains all of the elements of the offense and, therefore, sufficiently charges appellant with an offense. Duron v. State, supra. Additionally, an indictment tracking the language of the statute normally provides sufficient notice to allow the accused to prepare a defense. Curry v. State, 30 S.W.3d 394 (Tex.Cr.App.2000). See Blackmon v. State, 786 S.W.2d 467, 469 (Tex.App. - Houston [1st Dist.] 1990, no pet=n). The trial court did not err in denying appellant=s motion to quash the indictment. Appellant also argues that Section 481.112 (a) is vague and unconstitutional. A penal statute may be void for vagueness when it either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application. Engelking v. State, 750 S.W.2d 213 (Tex.Cr.App.1988). A statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden, and the statute may not encourage arbitrary and erratic arrests and convictions. Engelking v. State, supra. We do not find the statute to be unconstitutionally vague. See Engelking v. State, supra; Beck v. State, 741 S.W.2d 516 (Tex.App. - Corpus Christi 1987, pet=n ref=d). Appellant=s first point of error is overruled. In his second point of error, appellant complains that the trial court erred in denying his second motion for new trial. In his second motion for new trial, appellant argued that the definition of Acontrolled substance@ is overly broad and unconstitutional because it included innocent behavior. TEX. HEALTH & SAFETY CODE ANN. ' 481.002(5) (Vernon Supp. 2001) defines controlled substance as Aa substance, including a drug, an adulterant, a dilutant, and an immediate precursor, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4.@ Appellant argues on appeal that, if the phrase Alisted in@ modifies Asubstance,@ then the statute criminalizes innocent behavior and that, if Alisted in@ modifies Aa drug, an adulterant, a dilutant, and an immediate precursor,@ then the State is required to prove that adulterants or dilutants are listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4. We must interpret a statute in accordance with the plain meaning of its language, unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not possibly have intended. McCain v. State, 22 S.W.3d 497 (Tex.Cr.App.2000); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). The statute requires that a controlled substance be listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4. The term also includes the Aaggregate weight of any mixture, solution, or other substance containing a controlled substance.@ Section 481.002(5). We find that the language of the statute is not so vague that men of ordinary intelligence must guess at its meaning. Engelking v. State, supra; see Blackmon v. State, supra. Appellant=s second point of error is overruled. In his third point of error, appellant argues that the trial court erred in denying his motion to recuse the district attorney. Appellant orally presented a motion to the trial court on the day of trial seeking to have the district attorney recused or disqualified. Appellant alleged that he had consulted with the Assistant District Attorney John Cashon about possible representation prior to Cashon beginning employment at the district attorney=s office. At the hearing on the motion, appellant testified that he called Cashon about possible representation and that Cashon visited with him at the jail about the case. Cashon later sent appellant a letter stating that he would not represent appellant. Appellant further testified that, on the morning of trial, he overheard Cashon talking to other staff members of the district attorney=s office talking about appellant=s mother. Cashon testified at the hearing that he was first employed with the district attorney=s office on August 28, 2000. Cashon stated that, prior to that time, he consulted with appellant at the jail. After he began his employment with the district attorney=s office, Cashon became aware that appellant=s case was pending in that office. The district attorney instructed Cashon not to work on the case, not to divulge any information on the case, and not to participate in the trial of the case. Cashon testified that he did not participate in the case and that he had not had any conversation about the case with other staff members. The district attorney called other members of his office, and they all testified that they had not discussed appellant=s case with Cashon. The district attorney also testified at the hearing that he instructed Cashon not to have any communication with anyone in the district attorney=s office about appellant=s case and that, to his knowledge, Cashon had followed those instructions. The record shows that Cashon did not directly participate in the case and that procedures were implemented to screen him from the case. At the hearing, appellant was unable to state any specific conversation between Cashon and staff members concerning his case. The trial court did not err in denying appellant=s motion to disqualify the district attorney from prosecuting his case. State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex.Cr.App.1994); State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Cr.App.1990); Clarke v. State, 928 S.W.2d 709 (Tex.App. - Fort Worth 1996, pet=n ref=d). Appellant=s third point of error is overruled. In his fourth point of error, appellant complains that the trial court erred in denying his motion to dismiss. In his motion to dismiss, appellant states that he was arrested on February 8, 2000; that he was first indicted on June 20, 2000; and that a second indictment was filed on August 24, 2000. Appellant contends that, because the second indictment was not filed within 180 days of his arrest, the trial court should have dismissed the indictment. TEX. CODE CRIM. PRO. ANN. art. 32.01 (Vernon Supp. 2001) provides: When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution...shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever date is later. The Erath County District Court grand jury has two terms per year. The first term begins on the first Monday of January, and the second term begins on the first Monday of July. TEX. GOV=T CODE ANN. ' 24.302 (Vernon 1988). Therefore, the second indictment was returned before the last day of the next term of court after his arrest. The trial court did not err in denying his motion to dismiss. Appellant=s fourth point of error is overruled. In his fifth point of error, appellant contends that the trial court erred in admitting a videotaped confession. The record reveals that, on the night of his arrest, appellant was interviewed by Jeffrey Lee Monk with the S.T.O.P. Narcotics Task Force. Officer Monk testified that, prior to beginning the interview, he advised appellant of his constitutional rights. Officer Monk stated that appellant voluntarily waived his rights and consented to the interview. Officer Monk did not advise appellant that the interview was being recorded. The videotape also depicts Officer Monk advising appellant of his rights. Appellant specifically argues that the trial court should not have admitted the videotape because he was unaware that he was being recorded. However, TEX. CODE CRIM. PRO. ANN. art. 38.22, ' 3(a) (Vernon Pamph. Supp. 2001), which governs the admissibility of oral confessions, does not require that the accused be informed that the statement is being recorded. Moore v. State, 882 S.W.2d 844 (Tex.Cr.App.1994). Appellant=s fifth point of error is overruled. The judgment of the trial court is affirmed. JIM. R. WRIGHT JUSTICE October 4, 2001 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.