Stephen Russell Swilling v. State ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00199-CR ______________________________



STEPHEN RUSSELL SWILLING, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 115th Judicial District Court Upshur County, Texas Trial Court No. 14,197

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Stephen Russell Swilling appeals from his conviction on his open plea of guilty to the offense of evading arrest/detention with a vehicle. See Tex. Penal Code Ann. § 38.04 (Vernon 2003). The court sentenced Swilling to one year's confinement in a state-jail facility. See Tex. Penal Code Ann. § 12.35 (Vernon Supp. 2008). Swilling was represented by appointed counsel at trial and by different appointed counsel on appeal. Swilling's appellate attorney has filed a brief in which he concludes, after a review of the record and the related law, that the appeal is frivolous and without merit.

Appellate counsel states that he has studied the record and finds no error preserved for appeal that could be successfully argued. The brief contains a professional evaluation of the record and advances three arguable grounds for review. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

Counsel mailed a copy of the brief to Swilling March 3, 2008, informing Swilling of his right to examine the entire appellate record and to file a pro se response. Counsel simultaneously filed a motion with this Court seeking to withdraw as counsel in this appeal. This Court notified Swilling that any pro se response was due on or before April 7, 2008. Swilling has not filed a response, nor has he requested an extension of time in which to file such a response.

We have reviewed the possible issues raised by counsel in his appellate brief, and we agree that: (1) the trial court properly admonished Swilling of his rights at trial and that Swilling's plea of guilty was voluntary; (2) the failure, if any, to serve Swilling with a copy of the indictment was waived, and further, Swilling's attorney stated that Swilling had been served, that he had sufficient time to prepare, and waived arraignment; and (3) the record does not reveal ineffective assistance of counsel under the guidelines of Strickland v. Washington, 466 U.S. 668 (1984).

Swilling entered a voluntary, open plea of guilty to the state-jail felony offense of evading arrest/detention with a motor vehicle. Swilling was properly admonished by the trial court before his plea of guilty was entered. He testified he had committed the offense and signed a written stipulation of evidence. He was sentenced to one year's confinement in a state-jail facility, out of a maximum punishment allowed by statute of two years' confinement and a fine of $10,000.00. Our review has not revealed any reversible error. ⁽¹⁾    

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: May 7, 2008

Date Decided: May 8, 2008

Do Not Publish

1. Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Swilling in this case. No substitute counsel will be appointed. Should Swilling wish to seek further review of this case by the Texas Court of Criminal Appeals, Swilling must either retain an attorney to file a petition for discretionary review or he must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.

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(1) expressly represents the substance to be a controlled substance; [or]

(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance . . . .

Tex. Health & Safety Code Ann. § 482.002(a).

"Simulated controlled substance" is defined as "a substance that is purported to be a controlled substance, but is chemically different from the controlled substance it is purported to be." Tex. Health & Safety Code Ann. § 482.001(4) (Vernon 2003). "Expressly represents," under Section 482.002(a)(1), requires the use of the specific term defined in the Controlled Substances Act, e.g., "methamphetamine," and not a slang equivalent. See Grant v. State, 822 S.W.2d 639 (Tex. Crim. App. 1992); Jenkins v. State, 820 S.W.2d 178 (Tex. Crim. App. 1991); Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). "Represents," under Section 482.002(a)(2), is further explained in Section 482.003, which provides evidentiary rules for determining whether a person has represented a simulated controlled substance to be a controlled substance in a manner that would lead a reasonable person to believe the substance was a controlled substance. See Tex. Health & Safety Code Ann. § 482.003 (Vernon 2003). The statute establishes that, in making the determination, the court:

may consider, in addition to all other logically relevant factors, whether:

(1) the simulated controlled substance was packaged in a manner normally used for the delivery of a controlled substance;

(2) the delivery or intended delivery included an exchange of or demand for property as consideration for delivery of the substance and the amount of the consideration was substantially in excess of the reasonable value of the simulated controlled substance; and

(3) the physical appearance of the finished product containing the substance was substantially identical to a controlled substance.

Tex. Health & Safety Code Ann. § 482.003(a).

Palmer was found to have delivered "by actual transfer" a substance purported to be, by express representation or in a manner that would lead a reasonable person to believe it was, methamphetamine. The State presented evidence that the transfer, i.e., the exchange of money for substance, took place outside Troup in Cherokee County. Nonetheless, the State asserts that the representation that the substance was methamphetamine took place during negotiations for the sale at Palmer's house in the Smith County part of Troup.

Palmer asserts that the representation that the substance was methamphetamine must be made contemporaneously with the delivery, which was in Cherokee County. Palmer asserts that myriad cases require that the representation that a substance is a controlled substance be made contemporaneously with the sale or transfer of that substance. See Grant, 822 S.W.2d 639; Jenkins, 820 S.W.2d 178; Boykin, 818 S.W.2d 782; Evans v. State, 945 S.W.2d 259 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd); Holliman v. State, 692 S.W.2d 120 (Tex. App.--Waco 1985, pet. ref'd). We have reviewed Palmer's cited cases and disagree. In all these cases, to the extent the facts indicate any sense of the timing of the delivery and representation, these elements seem to have occurred at least relatively contemporaneously. But in none of these cases is the timing of the elements in issue. None of Palmer's cited cases analyzes, let alone requires, contemporaneity between the representation and the delivery.

Neither is contemporaneity required under the plain language of the statute. See Tex. Health & Safety Code Ann. § 482.002(a). We are also not persuaded by Palmer's contention that the chapter's nonexclusive evidentiary rules (see Tex. Health & Safety Code Ann. § 482.003) mandate that the representation and delivery elements be contemporaneous. While it is true that the first and third considerations (the packaging and physical appearance of the substance actually transferred) cannot be observed until actual transfer, the second consideration (exchange of or demand for property as consideration) does not require actual transfer at all. See Tex. Health & Safety Code Ann. § 482.003(a). This is consistent with the statutory definition of "delivery," which is not limited to physical transfer and "includes offering to sell a simulated controlled substance." Tex. Health & Safety Code Ann. § 482.001(2) (Vernon 2003). To interpret the statute to mean that a representation that a substance is a controlled substance may only be made contemporaneously with actual transfer of the simulated controlled substance would create, rather than resolve, an ambiguity in the statute that otherwise defines the offense in such a way as to not require actual transfer. Where a statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from the statute. Boykin, 818 S.W.2d 782. We decline to add a contemporaneity requirement to the statute.

Thus, if sufficient evidence supports that Palmer made a representation in Smith County that a simulated controlled substance was a controlled substance--either expressly or in a manner that would lead a reasonable person to believe the substance was a controlled substance--then venue in Smith County was appropriate.

D. The Evidence

Steve Henry, a detective with the Smith County Sheriff's Department, testified that on July 20, 2006, he and a confidential informant (CI) went to Palmer's house on the Smith County side of Troup, Texas. Henry remained in the car while the CI spoke with Palmer. Palmer and the CI's brief conversation was recorded, with video and audio, on a camera concealed in a button. The State played the DVD of the July 20 meeting for the jury. ⁽²⁾

The State commented at the trial while the DVD was playing: "[y]ou hear the defendant stating that he could basically get an eight ball -- he can get an eight ball for [the CI], isn't that correct?" Detective Henry agreed. Henry explained that, "[w]ith individuals that are in the drug industry," an "eight ball" is a common name for "3.5 grams of methamphetamine." Henry also stated that, based on his training and experience, he reasonably believed that Palmer was going to be producing methamphetamine based on the "offer to sell that dope" on July 20.

The CI testified that on July 20, he received money from Detective Henry to try to purchase drugs from Palmer but that he was not able to purchase on that day. The CI agreed that on July 20, he  and  Palmer  talked  about  setting  up  a  deal  to  buy  methamphetamine.  The  CI  stated  that on July 20, Palmer "said a gram was, like, 100 to 8 bucks. And he couldn't get -- could buy an eight ball for $250; and I didn't have enough money to get an eight ball that day" and Palmer did not have the "eight ball" at that time, either. The CI also said that on July 20, Palmer offered to sell him "an eight ball for 250 bucks."

Henry and the CI returned to Palmer's house in Smith County on July 25, 2006. Again, Henry stayed in the car while the CI went to the house and spoke with Palmer. A second DVD, of the meeting at Palmer's house on July 25, was played for the jury, and Henry again commented as it played. ⁽³⁾

Henry related that on the July 25 DVD, the CI said, "[w]e got the money for the eight ball," and Palmer replied it would take forty-five minutes to get an eight ball. The CI said that he engaged in discussions about the methamphetamine and "ice" on July 25 at Palmer's home. The CI agreed that Palmer, at his home, represented that the substance he was going to purchase was methamphetamine by referring to it as an "eight ball" and "ice." The CI also testified that based on Palmer's representations and the CI's knowledge, the CI believed the substance they were discussing was methamphetamine. The CI also said that he is familiar "with some of the suppliers" in the Troup area and with "Palmer as being a supplier."

The DVDs shown to the jury establish that Palmer, in Smith County, first established a price of about $250.00 for an "eight ball" and later agreed to meet to provide a "ball." The jury heard testimony from the CI and Detective Henry that the term "eight ball" carries, in the drug community, a particular and common meaning: 3.5 grams of methamphetamine. The jury heard the testimony of Henry and the CI that, based on Palmer's representations in Smith County, they believed he was representing that he would deliver a controlled substance. The fact that further representations were also made in Cherokee County is of no consequence. See Wood, 573 S.W.2d at 210 (a single element can occur in several counties); Tucker v. State, 751 S.W.2d 919, 924 (Tex. App.--Fort Worth 1988, writ ref'd) (continuing transaction, in which an offense is committed across several counties raises venue in one of those counties).

Viewing the evidence in the light most favorable to the verdict, a rational jury could have found, by a preponderance of the evidence, that the representation element of the offense occurred in Smith County. Viewing all the evidence in a neutral light, we cannot say the evidence supporting venue in Smith County is outweighed by the great weight and preponderance of the evidence or is so weak that the finding of venue in Smith County is clearly wrong or manifestly unjust. The jury could reasonably conclude, by a preponderance of the evidence, that the representation element of the offense was committed in the county alleged. We overrule the point of error.

We affirm the judgment.

Bailey C. Moseley

Justice

Date Submitted: November 21, 2007

Date Decided: December 5, 2007

Do Not Publish

1. This is not a case in which the exact location within the State of Texas where the offense occurred cannot be readily identifiable, thus allowing prosecution in the county of the defendant's residence. See Tex. Code Crim. Proc. Ann. art. 13.19 (Vernon 2005). Neither is it a case where the offense occurred on, or within 400 yards of, a county line. See, e.g., Tex. Code Crim. Proc. Ann. art. 13.04 (Vernon 2005) (applicable to an "offense committed on the boundaries of two or more counties, or within four hundred yards thereof").

2. The DVD has poor audio and video quality. Nonetheless, our review of the DVD reveals that the DVD depicts a markedly different exchange than that testified to by the State's witnesses. Our review of this DVD reveals that the CI asked about "coke"; Palmer responded that the CI had contacted him about "weed." Palmer stated he did not know how much a "G" costs. The CI asked how much "an eight ball" would cost and Palmer replied, "normally costs 250. Could be 3-0. I don't know."

3. The second DVD also has poor audio and video quality and, again, our review reveals a different exchange than that testified to by the State's witnesses. In our review of the July 25 DVD, the CI states, "I'm trying to get a ball." Palmer replies, "Oh really? When do you need it?" The CI answers, "Now." Palmer states, "It'll take about 45 minutes."