Pamela Gwynn Krick v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00013-CR
PAMELA GWYNN KRICK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 97TH DISTRICT COURT OF ARCHER COUNTY
TRIAL COURT NO. 2015-0016A-CR
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MEMORANDUM OPINION1
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Appellant Pamela Gwynn Krick appeals from her conviction for prohibited
substance and items in a correctional facility and ten-year sentence. Because
we conclude that the evidence was sufficient to support her conviction but that
the judgment contains a clerical error, we modify the trial court’s judgment and
affirm it as modified.
1
See Tex. R. App. P. 47.4.
On December 19, 2014, Krick and her brother were attempting to move
some of his things out of a residence. Before they arrived at the house, they had
called the police for a “civil standby” to ensure “there’s not a breach of the peace”
and to protect them while they were removing his things. Chief Justin Perron of
the Archer City Police Department and Investigator Tony Hanley with the Archer
County Sheriff’s Office were dispatched to the house. After getting Krick’s and
her brother’s identifications, Perron discovered that Krick had an outstanding
warrant. Perron handcuffed Krick, and Hanley placed her in the back of his
patrol car. Krick was wearing a leather jacket and scrubs, but Perron did not
search her before or after the arrest. After Krick’s brother finished getting his
things from the house, Perron moved Krick to his patrol car and drove her to the
Archer County Jail.
While Perron and Krick were waiting to enter the secure area of the jail, he
warned her that if she had any contraband, she should turn it over before she
was searched and booked to prevent “another charge for introducing contraband
into the jail.” Krick did not tell Perron that she had contraband at that time.
Although Perron did not include in his incident report2 the fact that he informed
Krick to turn over any contraband, it was his normal practice to do so with
everyone he transported to jail. Perron then took Krick to the “book-in area,”
which was a secure area of the jail and where officers search all arrestees before
2
Perron’s incident report was not entered into evidence.
2
being processed into the jail. Krick “immediately” told the booking officer, Tina
Robertson, that she “wanted to use the restroom.” Robertson did not allow Krick
to use the restroom at that time because “a toilet is a subject’s best friend when
they’re trying to get rid of something.” Robertson then told Krick to remove her
jacket, which Krick refused to do because she said she was cold. Robertson
removed the jacket from Krick and found “two baggies with white substance” and
a small set of digital scales in an interior pocket. Another officer conducted a pat-
down search of Krick and found a “torch . . . used to light, heat up what we call a
crack pipe” rolled up in the waistband of Krick’s pants. The substance in the
baggies was tested and identified as methamphetamine.
A grand jury indicted Krick with “intentionally or knowingly tak[ing] a
controlled substance, namely, methamphetamine, into the Archer County Jail, a
correctional facility.” See Tex. Penal Code Ann. § 38.11(b) (West 2011). The
prefatory information to the indictment identified the offense charged as “PROH
SUB CORR FACIL-ALCOHOL/DRUG/PHONE/TOBACCO—38.11(d)(1) PC.” At
the conclusion of the guilt-innocence portion of the trial, the trial court instructed
the jury in the abstract portion of the jury charge that “[a] person commits an
offense if the person takes a controlled substance into a correctional facility.”
See id. The abstract portion of the jury charge also included the statutory
definitions for the culpable mental states of intentionally and knowingly. See id.§ 6.03(a)–(b) (West 2011). The application portion of the jury charge instructed
the jury that it could find Krick guilty “of the offense of Prohibited Substance and
3
Items in a Correctional Facility . . . as charged in the indictment” if it found
beyond a reasonable doubt that Krick “did . . . intentionally or knowingly take a
controlled substance, namely, methamphetamine into the Archer County Jail, a
correctional facility.” The jury found Krick “guilty of the offense of Prohibited
Substance and Items in a Correctional Facility as charged in the indictment.”
Krick elected for the trial court to assess her punishment. The trial court heard
punishment evidence—including Krick’s prior convictions for forgery, possession
of a controlled substance, fraudulent use or possession of identifying information,
and failure to identify while being a fugitive from justice—and assessed her
punishment at ten years’ confinement.
On appeal, Krick argues that the evidence was insufficient to support a
reasonable inference that she had the requisite intent to possess or transport
methamphetamine in a correctional facility. Specifically, she argues that the
evidence only showed that she may have “intended to possess a controlled
substance in the book-in area of the jail,” not that she intentionally or knowingly
took a controlled substance into the jail. In other words, Krick contends, “[t]he
context and background of the case [do] not contain facts which demonstrate
[she] meant to possess the drugs, let alone that she was aware of their presence
at the time she crossed the threshold into the jail facility.” Krick’s argument,
therefore, is an attack on the sufficiency of the evidence to support the alleged
culpable mental states—intentionally or knowingly.
4
As a preliminary matter, we note that Krick seems to argue that because
the indictment alleged the culpable mental states of intentionally or knowingly,
the offense was “transitioned” into a possession case under section
38.11(d)(1)—possession of a controlled substance or dangerous drug while in a
correctional facility. See Tex. Penal Code Ann. § 38.11(d)(1). The alleged
culpable mental state did not change the character of the charged offense. The
indictment recited the offense elements found in section 38.11(b)—takes a
controlled substance into a correctional facility—and included the culpable
mental states of intentionally or knowingly.3 See id. § 38.11(b). The trial court
followed the language found in the indictment in its jury charge. Section 38.11(b)
does not expressly mandate the appropriate culpable mental state; thus, the
culpable mental state may be alleged as either intentionally, knowingly, or
recklessly. See id. § 6.02(b)–(c) (West 2011). Accordingly, the alleged culpable
mental states did not require the State to prove possession under section
38.11(d)(1). See cf. Smith v. State, No. 06-13-00185-CR, 2014 WL 1379640, at
*1 (Tex. App.—Texarkana Apr. 8, 2014, no pet.) (mem. op., not designated for
publication) (noting that indicted offense under section 38.11(b) included culpable
3
Krick argues that the State alleged the elements of section 38.11(c) in the
indictment. That subsection criminalizes taking a controlled substance or
dangerous drug on “property owned, used, or controlled by a correctional facility.”
Tex. Penal Code Ann. § 38.11(c). The indictment alleged that Krick took
methamphetamine “into the Archer County Jail, a correctional facility,” which
tracks the language of section 38.11(b). Id. § 38.11(b). Neither subsection
delineates a culpable mental state.
5
mental states of intentionally or knowingly). We now address whether the
evidence supported Krick’s conviction under section 38.11(b), which was the
indicted offense and the offense the trial court included in its charge to the jury.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979). In determining the sufficiency of the
evidence to show an appellant’s intent, and faced with a record that supports
conflicting inferences, we “must presume—even if it does not affirmatively appear
in the record—that the trier of fact resolved any such conflict in favor of the
prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d
839, 846 (Tex. Crim. App. 1991) (quoting Farris v. State, 819 S.W.2d 490, 495
(Tex. Crim. App. 1990), cert. denied, 503 U.S. 911 (1992), overruled on other
grounds by Riley v. State, 889 S.W.2d 290, 300 (Tex. Crim. App. 1993), cert.
denied, 515 U.S. 1137 (1995)).
We conclude that the jury could have reasonably inferred that Krick
intentionally or knowingly took methamphetamine into the jail. Perron warned
Krick that any contraband should be disclosed before they entered the book-in
area of the jail. Krick “immediately” wanted to go to the restroom with her jacket
on when she got to the book-in area. When she was not allowed to do so, she
refused to take off her jacket. Not only were drugs and scales found in her
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jacket, a specialized lighter for a “crack pipe” was found rolled up in the
waistband of her pants. These facts were sufficient to infer Krick’s culpable
mental state. See Alvarado v. State, No. 11-10-00262-CR, 2012 WL 3133792, at
*2 (Tex. App.—Eastland July 26, 2012, no pet.) (mem. op., not designated for
publication); cf. Brown v. State, 89 S.W.3d 630, 632–33 (Tex. Crim. App. 2002)
(concluding evidence sufficiently established appellant voluntarily took marijuana
into a jail under sections 6.01(a) and 38.11(b)); Short v. State, 995 S.W.2d 948,
951–52 (Tex. App.—Fort Worth 1999, pet. ref’d) (holding evidence sufficient to
establish appellant’s intent to commit offense under section 38.11(a)). We
overrule Krick’s issue.
During our review of the record, we observed that the written judgment of
conviction contains a clerical error. As did the prefatory information to the
indictment, the judgment lists “PENAL CODE 38.11(d)(1)” as the “Statute for
Offense.”4 As we have discussed, this was incorrect. The jury charge and the
indictment’s “plain and intelligible words” tracked the language found in section
38.11(b). Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009); see also id.art. 21.11 (West 2009) (providing indictment is sufficiently certain if offense is
charged “in ordinary and concise language”). Although the indictment identified
section 38.11(d)(1) in a prefatory paragraph, this paragraph was not a required
The section entitled “Offense for which Defendant Convicted” showed that
4
Krick was convicted of “PROH SUB CORR FACIL-
ALCOHOL/DRUG/PHONE/TOBACCO.”
7
part of the indictment, and the indictment’s plain allegations clearly tracked the
elements provided in penal code section 38.11(b). See id. art. 21.02 (listing
required elements of indictment), art. 21.16 (West 2009) (describing sufficient
form of indictment, which does not include specific penal code section), art. 21.19
(West 2009) (mandating that defect of form of indictment will not affect result of
trial if defect did not prejudice defendant’s substantial rights); Oliver v. State,
692 S.W.2d 712, 714 (Tex. Crim. App. 1985) (holding language of indictment
should be construed in context “by practical rather than by technical
considerations and by reading the indictment as a whole”). Because we have the
authority to modify incorrect judgments when, as here, the necessary information
to do so is available, we modify the trial court’s December 10, 2015 judgment to
reflect that the “Statute for Offense” is “PENAL CODE 38.11(b).”5 See Juarez v.
State, 461 S.W.3d 283, 300–01 (Tex. App.—Texarkana 2015, no pet.); Figueroa
v. State, 250 S.W.3d 490, 518 (Tex. App.—Austin 2008, pet. ref’d), cert. denied,
555 U.S. 1185 (2009). See generally Bigley v. State, 865 S.W.2d 26, 27–28
(Tex. Crim. App. 1993) (discussing appellate courts’ authority to modify
judgments).
As modified, we affirm the trial court’s judgment. See Tex. R. App. P.
43.2(b).
5
Both section 38.11(b) and section 38.11(d)(1) are third-degree felonies.
Tex. Penal Code Ann. § 38.11(g).
8
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 14, 2016
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