Berry Trout v. State

Trout v. State

IN THE

TENTH COURT OF APPEALS

No. 10-95-030-CR

     BERRY TROUT,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 220th District Court

Bosque County, Texas

Trial Court # 11,387

                                                                                                    

CONCURRING OPINION

                                                                                                    

      I concur with the opinion affirming the conviction and reversing and remanding for re-sentencing, but I do have concerns about this case which I wish to address.

      First, Trout was driving a car when he was apprehended by the police. The police officer saw part of a marihuana cigarette in plain view in the car. Trout was placed under arrest and carried to the Bosque County jail, where, during a strip search, two more marihuana cigarettes were found on his person. Trout was then indicted for taking and attempting to take a controlled substance, a usable amount of marihuana, into the Bosque County Jail, which effectively elevated this case from a misdemeanor to a felony with a range of punishment from two to fifteen years in prison. Tex. Loc. Gov't Code § 361.082 (Vernon Supp. 1995) (repealed by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, § 5.03, effective Oct. 1, 1991). I agree with Trout's appointed counsel, Mr. Harris, when he argued that section 361.082 was meant to punish those who would try to sneak or illegally introduce drugs or controlled substances into county jails and was not intended to be applied in a situation such as this where the facts indicate Trout had only a small amount of marihuana when stopped by the police officer while driving. Trout was placed under arrest at his car and transported to the jail. He was not at the jail trying to illegally introduce contraband into the jail when he was arrested. In my opinion, the use of section 361.082 was inappropriate in this case and was not the type of conduct which the legislature intended to proscribe by this statute.

      Secondly, the indictment in this case does not allege a culpable mental state, as required by section 6.02 of the Texas Penal Code. Tex. Penal Code Ann. § 6.02 (Vernon 1974). However, failure to timely object to an essential mental state constitutes waiver, and such a previously fundamental error will not result in an automatic reversal. Murk v. State, 815 S.W.2d 556 (Tex.Crim.App. 1991). In my opinion, however, omission of a culpable mental state from the indictment makes the indictment subject to constitutional attack. See Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). The court's admonishment to Trout concerning the charge against him would have been stronger if "knowingly and intentionally take or attempt to take" had been in the indictment. Former Presiding Judge John F. Onion, Jr., in a dissenting opinion in Richards v. State, 562 S.W.2d 456, 461 (Tex. Crim. App. 1977), commented concerning the court's responsibility in admonishing a defendant on a guilty plea. If a culpable mental state had been in the indictment and the court had tracked the language of the indictment, there could not have been a question whether the plea in this case was freely and voluntarily given. Here, the court's admonition could not include a culpable mental state because same was not in the indictment and it did not include "take or attempt to take" as was alleged in the indictment. The admonition given was, "You are charged with possession of marihuana in the county jail." As given, the admonition does not state a crime because it omits "take or attempt to take," which is the language that elevates the charge from a misdemeanor to a felony. Neither was it a correct admonition for a possession crime because it failed to allege the amount of marihuana the defendant was alleged to have possessed.

      As noted above, I believe it was inappropriate to charge Trout under section 361.082 because he did not "intentionally or knowingly" take the marihuana into the county jail. He was arrested at his car and he and the marihuana were taken into the county jail by the police officer, which, in my opinion, is a far cry from what the legislature intended by this statute. Moreover, as noted, the indictment did not allege a culpable mental state, and the court's admonition did not advise Trout of the crime for which he stood charged. Admittedly, there were no objections to these omissions, thus making them harmless errors. However, taken together, I believe that Trout did not receive a fair trial, and I would prefer to reverse and dismiss this case. Since Trout admitted to possession of a small amount of usable marihuana, and, hopefully, the evidence has not been destroyed so that an accurate determination may be made as to the actual amount of marihuana he possessed, I will concur that the case be remanded for a punishment hearing in accordance with the punishment guidelines stated in the majority opinion.

 

                                                                               BOBBY L. CUMMINGS

                                                                               Justice

Opinion delivered and filed November 15, 1995

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ops:23.4pt'>1.   Factual Sufficiency of the Evidence.  In Appellant’s first issue, she contends that the evidence was factually insufficient.  Appellant points out that neither the forged check nor a carbon copy were introduced, that there was no handwriting expert testimony, and that she did not forge any other checks made to her by the victim.  The victim testified as to the amount of the check as made, and the altered amount on the check as passed.  Appellant admitted to passing the check.  Even though the altered amount of the check would have paid the victim’s debt for legal fees to Appellant in full, Appellant accepted and cashed another check from the victim for legal fees the next month.  Viewing the evidence in a neutral light, and giving due deference to the trial court’s credibility determinations, the court was rationally justified in finding beyond a reasonable doubt that Appellant committed forgery.  See Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  We overrule Appellant’s first issue.

2.    Legal Sufficiency of the Evidence.  In Appellant’s second issue, she contends that the evidence was legally insufficient.  Viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have found beyond a reasonable doubt that Appellant committed forgery.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Herrin v. State, 125 S.W.3d 436, 439 (Tex. Crim. App. 2002).  We overrule Appellant’s second issue.

3.    Specific Intent.  In her third issue, Appellant contends that she could not have had the specific intent to defraud the victim, since the victim owed her child support arrearages.  Appellant need not have had the specific intent to defraud the maker of the check, but only that passing the check was, in its nature, calculated to injure or defraud, for example, the financial institution to which she passed the check.  See Tex. Code Crim. Proc. Ann. art. 38.19 (Vernon 1979).  We overrule Appellant’s third issue.

      Having overruled Appellant’s issues, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Opinion delivered and filed September 15, 2004

Affirmed

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