Gregory Lynn Franklin v. State ( 2002 )

NO. 07-02-0046-CR NO. 07-02-0047-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 7, 2002

______________________________



GREGORY LYNN FRANKLIN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 42,935-A & 31,402-A; HONORABLE DAVID GLEASON, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Following his plea of not guilty, appellant Gregory Lynn Franklin was convicted by a jury of delivery of a controlled substance in cause number 42,934-A. The record in cause number 42,934-A reflects that appellant negotiated a plea bargain for punishment of 25 years confinement in exchange for his agreement to plead guilty to delivery of a controlled substance in cause number 42,935-A and burglary of a habitation in cause number 31,402-A, each carrying sentences of eight years. Upon receipt of the plea agreement, the trial court informed appellant of his right to appeal his conviction in cause number 42,934-A; however, in accepting appellant's guilty pleas in the remaining two causes, the trial court admonished appellant and explained that he would not have a right of appeal. Notwithstanding the trial court's announcement that he would not have the right to appeal, appellant filed general notices of appeal from his plea-bargained convictions in cause numbers 42,935-A and 31,402-A. By the notices he asserted he could not perfect an appeal pursuant to Rule 25.2(b)(3)(A) and (B) of the Texas Rules of Appellate Procedure for jurisdictional defects or by written motions ruled on before trial. Instead, he requested that the trial court grant him permission to appeal pursuant to Rule 2.52(b)(3)(C). We dismiss the purported appeals for want of jurisdiction.

Appellate jurisdiction is invoked by filing a timely and proper notice of appeal. See State v. Riewe, 13 S.W3d 408, 410 (Tex.Cr.App. 2000). To perfect an appeal from a judgment that was rendered on a defendant's guilty plea and in which the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, a notice of appeal must (a) specify that the appeal is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (c) state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3); see also White v. State, 61 S.W.3d 424, 428-29 (Tex.Cr.App. 2001) (holding that the notice requirements set forth in Rule 25.2(b)(3) should be interpreted according to their plain meaning and that failing to meet the requirements fails to invoke the jurisdiction of an appellate court).

Appellant's notices of appeal do not contain any of the requirements set forth in Rule 25.2(b)(3) necessary to invoke this Court's jurisdiction over his convictions. Thus, our jurisdiction has not been invoked and the appeals are dismissed for want of jurisdiction.

Don H. Reavis

Justice

Do not publish.

l', sans-serif">                                                                                                           Appellant

v.

THE STATE OF TEXAS,

                                                                                                           Appellee

_________________________________

FROM THE 216^TH DISTRICT COURT OF KERR COUNTY;

NOS. A05-278 & A05-320; HON. KARL PROHL, PRESIDING

_______________________________

Opinion

_________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Appellant, Charles Sisco Newman, was convicted of both possessing a controlled substance in a drug-free zone and engaging in organized criminal activity. He contends on appeal that 1) the trial court abused its discretion in ordering the sentences for those crimes to run consecutively, and 2) the evidence is legally insufficient to support the conviction of engaging in organized criminal activity. We affirm.

          Stacking of Sentences

          Appellant was tried for both offenses mentioned above in the same criminal trial. Furthermore, he received a sentence of ten years for possessing methamphetamine and 40 years for engaging in organized criminal activity. The sentences were ordered to run consecutively by the trial court. Additionally, the accusation about appellant possessing controlled substances was one of the allegations in the indictment used to illustrate his involvement in organized criminal activity. These circumstances, according to appellant, when considered within the framework of §3.03 of the Texas Penal Code, purportedly require that his sentences run concurrently. We disagree.

          Per §3.03 of the Penal Code:

When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.  

Tex. Pen. Code Ann. §3.03(a)(Vernon Supp. 2008). Yet, another statute provides that “[p]unishment that is increased for a conviction for an offense listed under this section [i.e. Texas Health and Safety Code, §481.134] may not run concurrently with punishment for a conviction under any other criminal statute.” Tex. Health & Safety Code Ann. §481.134(h) (Vernon Supp. 2008). Appellant recognizes the conflict between the two provisions but argues, nonetheless, the former controls. He is mistaken.

          Whether two statutes collide resulting in one overriding the other is a matter of law that we consider de novo. State v. Salinas , 982 S.W.2d 9, 10 -11 (Tex. App.–Houston [1^st Dist.] 1997, pet. ref’d). And, in considering the instant matter de novo, we find guidance in the recent Court of Criminal Appeals opinion in Williams v. State, 253 S.W.3d 673 (Tex. Crim. App. 2008). There, the Court was asked to compare and construe sections 481.132(d) and 481.134(h) of the Health and Safety Code. Per §481.132(d),

[i]f the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which the accused has been found guilty shall be pronounced, and those sentences run concurrently.

Tex. Health & Safety Code Ann. §481.132(d) (Vernon 2003). Yet, §481.134(h) mandated that the sentences run consecutively, according to the State. The Court ultimately held that §481.132(d) precluded the trial court from stacking one sentence upon another in that case. But, it did so not because §481.132(d) trumped the affect of §481.134(h). Rather, it did so because the multiple convictions there involved were not for violations of different criminal statutes as required by §481.134(h). So, the two provisions did not conflict. Williams v. State, 253 S.W.3d at 678. On the other hand, when statutes do conflict, the Court acknowledged that the specific overrides the general. Id.

          Here, we have the situation missing in Williams. While we have one criminal episode resulting in joint prosecutions and convictions in the same trial, one prosecution and conviction involved the possession of controlled substances in a drug-free zone while the other involved his effort to engage in organized crime. And, because the former involved a drug-free zone, §481.134(h) of the Health and Safety Code (which expressly addressed situations involving drug-free zones) was implicated. Again, that provision specifically focuses upon the ability of the trial court to allow a sentence within the scope of §481.134(h) to run concurrently with another sentence outside the scope of §481.134. On the other hand, §3.03(a) of the Penal Code does not deal with offenses occurring with drug-free zones. Thus, in following the admonishment in Williams that the specific must control over the general and since §481.134(h) covers the specific circumstances in our case, we conclude that the trial court had no option but to order that the sentences run consecutively.     

           Issue 2 - Legal Sufficiency

          Next, appellant claims there is insufficient non-accomplice testimony to sustain his conviction for engaging in organized criminal activity. We disagree.

          To support conviction, non-accomplice testimony need not directly link the accused to the crime or establish his guilt beyond a reasonable doubt. Rather, it need only tend to connect him to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005) (stating that a conviction may not rest upon the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant to the offense); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). And, it does here.

          Admittedly, accomplices testified that over a period of time, appellant and other persons, most of whom were drug addicts and concerned on a daily basis with obtaining their next “fix,” manufactured methamphetamine. So too did several identify appellant as one of the primary “cooks” of the methamphetamine. Yet, non-accomplice evidence illustrated that 1) appellant was stopped while driving a vehicle in which were found ingredients used to cook methamphetamine, 2) at the time of the stop, appellant’s hands were stained orange, a stain often associated with manufacturing that drug, 3) appellant admitted to the officer that he had cooked methamphetamine two weeks earlier, 4) five weeks later, appellant again was stopped while driving a vehicle that had left a site containing both a methamphetamine laboratory and evidence of a recent methamphetamine cook, 5) someone was observed throwing several small baggies containing methamphetamine and pseudoephedrine out of the window of the vehicle while appellant drove it, 6) a red duffle bag was found in the same vehicle, which bag contained a letter from appellant’s mother, drug paraphernalia used to manufacture methamphetamine, and a small baggie containing a trace of methamphetamine, 7) all of the occupants in the vehicle had needle tracks on their arms, and 8) appellant and several other occupants of the vehicle had orange stains on their hands. This is some evidence which tends to connect appellant to organized criminal activity consisting of the manufacture of methamphetamine.  

          Appellant also argues that the evidence insufficiently establishes that he participated in a combination because the memories of the accomplices were affected by their drug use. Furthermore, they only could provide vague details about the time and place of the cooks and who was present, he continues. Thus, the State allegedly failed to prove the mens rea required for conviction. We disagree for circumstantial evidence may be used to prove a defendant’s intent. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Munoz v. State, 29 S.W.3d 205, 209 (Tex. App.–Amarillo 2000, no pet.). And, both the direct and circumstantial evidence alluded to above provided basis upon which a reasonable jury could conclude, beyond reasonable doubt, that he intended to establish, maintain, and participate in a combination and conspiracy to manufacture as well as intentionally and knowingly manufacture methamphetamine. Simply put, sufficient evidence existed upon which a jury could legitimately conclude that he acted with the requisite mens rea.

          Finally, appellant claims the evidence is insufficient to support the finding that he used or exhibited a deadly weapon. We disagree. While it may be that the bulk of the evidence that appellant possessed a sawed off shotgun and threatened to use it in the event of a raid by police came from accomplice testimony, non-accomplice evidence did tie him to the crime of engaging in organized criminal activity. And, so long as he was legitimately connected to the crime in general, accomplice testimony may be used to link him to the use and exhibition of the shotgun. Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001).

          Having overruled all of appellant’s issues, we affirm the judgments.

                                                                           Brian Quinn

                                                                          Chief Justice   

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