Pope v. State

ROBERTSON, Justice.

Following appellant’s conviction on a plea of nolo contendere for possession of cocaine where punishment of two years was assessed in accordance with a plea negotiation, the trial court at first denied and then granted appellant the right to appeal. We affirm.

In his first two grounds of error, appellant contends there was no evidence or insufficient evidence of guilt. He argues that since “the Statement of Facts does not show that [the signed stipulation of evidence] was ever offered in evidence” nor is it “shown as an exhibit to the Statement of Facts” there is no evidence to support the plea. We disagree. After the court carefully admonished appellant as of the consequences of his plea of nolo con-tendere, the following occurred:

THE COURT: I will accept the plea and hear the evidence.
MR. VALLEJO (the prosecutor): At this time the state will offer what is before the court in the form of stipulation of evidence, which has been freely and voluntarily signed by the defendant on advice and consent of his counsel; if there’s no objection, the state rests.
MR. GAY (defense counsel): No objection.
*165THE COURT: Do you agree to the facts stated in the stipulation?
THE DEFENDANT: Yes, sir.
THE COURT: Is there evidence in defense?
MR. GAY: None, Your Honor.

Included within the clerk’s transcript is the form document “WAIVER OF CONSTITUTIONAL RIGHTS, AGREEMENT TO STIPULATE, AND JUDICIAL CONFESSION,” signed by appellant, his counsel, and the prosecutor by which appellant waived trial by jury, appearance of witnesses, and self-incrimination. It also included his sworn stipulation of facts in support of the allegations of the indictment. The form further contains the prosecutor’s consent to waiver of jury trial and his approval of the stipulated evidence. The last entry on the form, which is signed by the trial judge, reads:

This document was executed by the defendant, his attorney, and the attorney representing the state, and then filed with the papers of the case. The defendant then came before me and I approved the above and the defendant entered a plea of nolo contendere. After I admonished the defendant of the consequences of his plea, I ascertained that he entered it knowingly and voluntarily after discussing the case with his attorney. It appears that the defendant is mentally competent and the plea is free and voluntary. I find that defendant’s attorney is competent and has effectively represented the defendant in this case. I informed the defendant that I would not exceed the agreed recommendation as to punishment.

The above procedure used to introduce a stipulation of evidence and the attack on the sufficiency of the evidence are identical to that which was before this court in James v. State, 643 S.W.2d 439 (Tex.App.—Houston [14th Dist.] 1982) pet. ref'd, 640 S.W.2d 910 (Tex.Cr.App.1982). There, it was held that the evidence was sufficient to support the plea. Appellant’s first two grounds of error are overruled.

In his third and fourth grounds of error, appellant complains of a lack of speedy trial—the third asserting rights under TEX.CODE CRIM.PROC.ANN. arts. 32A.01, et seq. (Vernon Supp. 1982-1983) (Texas Speedy Trial Act) and the fourth asserting rights under both the federal and state constitutions. The state, relying upon cases where the plea was guilty, asserts these issues were waived when appellant entered a plea. On the other hand, appellant argues that, unlike entering a plea of guilty, an accused may enter a plea of nolo contendere and thereby preserve his contention of lack of a speedy trial. The Court of Criminal Appeals has already decided the issue adversely to appellant’s contention in Fleet v. State, 607 S.W.2d 257 (Tex.Cr.App.1979). We also hold that a plea of nolo contendere, just as a plea of guilty, knowingly made waives all non-jurisdictional defects, including a claimed deprivation of the constitutional right to a speedy trial. Chapman v. State, 525 S.W.2d 8 (Tex.Cr.App.1975). Appellant’s third and fourth grounds of error are overruled.

In his fifth ground of error, appellant contests the constitutionality of the Texas Controlled Substance Act because it does not “set out any standards as to what constitutes the contents of cocaine and the Act does not define the contents of cocaine.” In supporting argument, appellant states that without a statutory definition a person must speculate “whether a particular substance or compound would constitute cocaine.” We are unimpressed with this argument. The term “cocaine” is commonly understood to be a narcotic drug. The American Heritage Dictionary of the English Language 256 (New College ed. 1976) defines “cocaine”as “[A] colorless or white crystalline narcotic alkaloid, C17H21No4 entracted from coca leaves and used as a surface anesthetic.” It could hardly be argued that had the statute contained this or any other similar definition it would reduce the ordinary person’s speculation that the substance was cocaine. The bottom line is the statute must be sufficiently definite so that a per*166son of common intelligence can determine with reasonable precision what conduct it is he must avoid under the statute. Campos v. State, 623 S.W.2d 657 (Tex.Cr.App.1981). We hold that the failure to define “cocaine” does not render the statute defective or unconstitutionally vague. Appellant’s fifth ground of error is overruled.

The judgment is affirmed.

CANNON, J., not participating.