Devin Lamarcus Diggs v. State ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00201-CR
DEVIN LAMARCUS DIGGS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Hill County, Texas
Trial Court No. M0063-19
DISSENTING OPINION
We stand at the confluence of at least three great rivers of precedents; and it is
raining really, really hard. We are in danger of being swept away by the State’s
confession of error without adequate briefing and analysis. I hope to throw out a life raft,
a dingy in the form of this little ditty.
The rivers of precedents that converge here are:
1) Sufficiency of the evidence review under the Jackson standard as developed
and applied in Malik, Gollihar, Fuller, Cada, and Byrd;
2) Defective charging instruments and the need to quash them before trial as
developed in Studer and Jenkins; and
3) Double Jeopardy as developed in Bailey (and about a thousand others).
The rain that seems to be impairing a proper view of our dangerous predicament is an
alleged variance between the pleading and proof, and the State’s confession of purported
error.
One comment about the facts is necessary to allow a proper focus on the
precedents. On the face of the information, there is an indication that the charge is for
“POSS CS PG3 < 28G” which is also the offense to which Diggs pled nolo contendere and
for which he was convicted. Remember, this is a misdemeanor, so his plea of nolo
contendere is sufficient evidence of his guilt; independent evidence is not necessary. See
Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986) (“…normally on appeal
from a misdemeanor conviction based on a plea of guilty or nolo contendere there can be
no question of the sufficiency of the evidence.”); see also TEX. CODE CRIM. PROC. art.
27.14(a).
Whether the specific compound in Penalty Group 3 has to be alleged in the
information is immaterial to my analysis. Whether or not it is a required averment, the
disposition of this issue is controlled by the Court of Criminal Appeals’ opinion in Grant
and should be dispatched with equal brevity as Presiding Judge Keller’s analysis therein:
This case does not involve a “variance” of any type; it simply involves a
missing allegation that is required to be in the charging instrument…The
missing first name is a defect that was waived under Studer when appellant
failed to object. See Article 1.14(b); Studer v. State, 799 S.W.2d 263 (Tex.
Crim. App. 1990).
Diggs v. State Page 2
Grant v. State, 970 S.W.2d 22, 23 (Tex. Crim. App. 1998). With equally quick dispatch, I
would hold that this case does not involve a variance. At most, the information was
defective; but it was not objected to and, thus, any error was waived. Moreover, a defect
in the information is not the complaint on appeal.
The complaint on appeal is insufficiency of the evidence which is dependent upon
the unpreserved error of a potential defect in the information. But if I had to address this
as a sufficiency issue under the rubric of Malik, Gollihar, Fuller, Cada, and Byrd, I would
conclude that a hypothetically correct jury charge necessarily relies upon a hypothetically
correct charging instrument. Otherwise, we allow through the back door what we now
categorically refuse to let enter through the front door: unpreserved defects in the
charging instrument. That is precisely what we have done if this information can be
attacked in this case as a variance. There is no question that the “evidence,” the plea, is
sufficient to support the conviction for possession of a controlled substance Penalty
Group 3, less than 28 grams. The evidence is “insufficient” only if you attempt to measure
the sufficiency against the defective charging instrument and limit it to the formal content
of the information and not to all the content on the face of the information. Such an
analysis is directly contrary to Jenkins in which we are directed to examine the charging
instrument “as a whole.” Jenkins v. State, No. PD-0086-18, 2018 Tex. Crim. App. LEXIS
1162, at *6-14 (Crim. App. Dec. 5, 2018) (publish). I would overrule appellant’s first issue.
Appellant’s second issue attacks the trial court’s overruling of the motion to
Diggs v. State Page 3
suppress.1 Appellant argues the road-side search was illegal because it was unnecessarily
delayed. We should dispatch this issue with even greater brevity than the first. The car
was searched with the driver’s consent which was never withdrawn.
Absent some other argument not made by appellant, such as the scope of the
driver’s consent did not extend to the backpack of the passenger, unrevoked consent to
search ends the suppression analysis. See e.g. Estrada v. State, 30 S.W.3d 599, 605 (Tex.
App.—Austin 2000, pet. ref’d) (“Because the search at the station was a continuation of
the search begun beside the highway, to which appellant gave his voluntary and
unrevoked consent, the question of probable cause [to search] is again irrelevant.”) I
would, therefore, overrule appellant’s second issue.
Having overruled all of appellant’s issues, I would affirm the trial court’s
judgment. Because the Court reverses the judgment and acquits appellant, I respectfully
dissent.2
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed February 26, 2020
1
Clearly, the trial court authorized the appeal of this issue. There is some question of whether the
“permission” to appeal extended to appellant’s first issue.
2
A collateral consequence of this analysis is that the can-of-worms that is the precedent for whether a
subsequent prosecution for possession of the same three Tylenol-with-Codeine pills can be accomplished
would thus, not be opened.
Diggs v. State Page 4
APPENDIX
CITATIONS OF REFERENCED CASES NOT FULLY CITED IN DISSENTING OPINION
1. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)
2. Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)
3. Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001)
4. Fuller v. State, 73 S.W.3d 250 (Tex. Crim. App. 2002)
5. Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011)
6. Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011)
7. Bailey v. State, 87 S.W.3d 122 (Tex. Crim. App. 2002)