Frazier Porter v. State

Opinion issued

March 10, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-10-00315-CR

———————————

FRAZIER PORTER , Appellant

V.

THE

STATE OF TEXAS , Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial

Court Case No. 1243911

MEMORANDUM OPINION

A

jury found appellant, Frazier Porter, guilty of the offense of possession with

intent to deliver a controlled substance, namely, hydrocodone, weighing at least

400 grams by aggregate weight, including adulterants and dilutants. [1] The trial court assessed punishment, enhanced

by two previous felony convictions, at 30 years in prison. The trial court did not assess a fine as

statutorily required. [2] On appeal, appellant challenges the sufficiency

of the evidence to support his conviction in one issue.

We affirm the trial court’s

judgment with respect to appellant’s conviction, reverse the portion of the

judgment assessing punishment, and remand the case to the trial court for a new

sentencing hearing to assess punishment within the applicable punishment range.

See

Tex. R. App. P. 43.2(d); Tex. Code Crim. Proc. art. 44.29(b)

(Vernon Supp. 2010).

Background

Officers M. Lopez and C.

Cantu, who were assigned to the Houston Police Department’s Special

Investigations Narcotics Division, set up a surveillance of a motel, the Red Carpet

Inn, located at 6161 Gulf Freeway in Harris, County. As part of the investigation, the officers

learned that appellant, Frazier Porter, was staying in Room 117. Eventually, the officers saw a man leave the

room and drive away in car with Alabama license plates. The officers checked the plate numbers and

determined that the vehicle had been reported stolen.

The officers called for a

marked patrol car to stop the vehicle. During

the stop, the driver was identified as Derick Rhone. It was also determined that the vehicle

belonged to appellant and had been reported stolen by him. Officers Lopez and Cantu went to Room 117 and

spoke to appellant. They learned that

appellant had forgotten to report that his vehicle had been recovered.

When the officers asked to

search Room 117, appellant consented to the search. Appellant told the officers that he was the

sole occupant of the room. Scattered on

the bed, the officers found 25 prescription bottles containing medication and

two empty prescription medicine bottles.

Fifteen of the bottles indicated that the medication had been prescribed

to appellant; the remaining ten indicated that they had been prescribed to Rhone

or to other individuals. Appellant told

the officers that he was very ill and had traveled from his native Alabama to

fill his prescriptions because they were cheaper to fill in Houston.

The

officers took appellant to the police station to interview him. The officers considered appellant to be under

arrest. Before the interview, appellant

was given the required statutory warnings.

Appellant

signed a written statement in which he disclosed the true purpose of his trip

to Houston. Appellant stated that a

person named Chris Mann had paid him and Rhone to travel from Alabama to

Houston to recruit homeless people to go to the doctor, obtain prescriptions

for certain medications, and fill them. Appellant would then mail the medication to

himself or to Mann in Alabama. Mann paid

appellant $600 to $700 per trip. Appellant

stated that he had made 15–20 trips that year to Houston and, during that time

he had mailed 50 packages of medications to his address or Mann’s address in

Alabama.

Appellant also stated that

he had sent one package to his address and one to Mann’s address the day before

through the United States Postal Service.

He said that each package contained about 1500 pills. Appellant also gave his permission to the

authorities to intercept and open the packages.

Because they did not have enough evidence to charge him with an offense

at that time, the officers released appellant after he gave his written

statement.

Officer Lopez contacted Special

Agent M. McClaid, with the United States Postal Inspection Service, regarding

the packages mailed to Alabama. Agent

McClaid contacted fellow agents in Alabama, who intercepted the package addressed

to appellant’s Alabama address. The

return address on the package included appellant’s name with the Houston address

for the Red Carpet Inn.

The package was transferred

to Agent McClaid. When he opened the

package, Agent McClaid found five smaller packages containing pills. In total, Agent McClaid recovered 860 pills

from the intercepted package. Agent

McClaid then transferred the pills to Officer Lopez.

The pills were turned over

to a criminalist with the Houston Police Department, who conducted tests on the

substances. The combined weight of the

pills the criminologist received was 488.4 grams. The tests concluded that the pills contained

dihydrocodeinone, which the criminologist testifed is hydrocodone and acetaminophen. Based on the narcotics recovered by the

postal inspector’s office, appellant was charged with possession with intent to

deliver a controlled substance, namely, hydrocodone, weighing at least 400

grams. The indictment also contained two

felony enhancement allegations.

At trial, the State

presented the testimony of Officers Lopez and Cantu, Agent McClaid, and the

criminologist. The State also admitted

into evidence appellant’s written statement in which he admitted that he was

paid by Mann to travel to Texas to recruit homeless people to obtain

prescription medication, which he then shipped back to Alabama.

The jury found appellant

guilty of the primary offense charged in the indictment. Appellant agreed to be sentenced by the trial

court. During the sentencing phase,

appellant stipulated to evidence supporting the enhancement allegations. At the end of the punishment hearing, the

trial court sentenced appellant to 30 years in prison, but did not assess a monetary

fine.

This appeal followed. In one issue, appellant contends that the

evidence is insufficient to support his conviction. Specifically, appellant contends that the

State presented no evidence regarding the appellant’s intent to deliver the

hydrocodone, an element of the charged offense.

See Tex. Health &

Safety Code Ann. §§ 481.102(3), 481.112(a),(f) (Vernon 2010).

A. Standard of Review

This Court reviews

sufficiency-of-the-evidence challenges applying the same standard of review,

regardless of whether an appellant presents the challenge as a legal or a

factual sufficiency challenge. See Ervin v. State , No. 01-10-00054-CR,

2010 WL 4619329 , at *2–4 (Tex. App. — Houston [1st Dist.] Nov. 10, 2010, pet. filed)

(construing majority holding of Brooks v.

State , 323 S.W.3d 893 (Tex. Crim. App. 2010)). This standard of review is the standard

enunciated in Jackson v. Virginia ,

443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979). See id .

Pursuant to this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in

the light most favorable to the verdict, no rational fact finder could have

found that each essential element of the charged offense was proven beyond a

reasonable doubt. See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; In re Winship , 397 U.S. 358, 361 , 90 S. Ct.

1068, 1071 (1970); Laster v. State ,

275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams

v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be insufficient under

the Jackson standard in two

circumstances: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) the evidence

conclusively establishes a reasonable doubt. See Jackson ,

443 U.S. at 314 , 318 n. 11, 320, 99 S. Ct. at 2786 , 2789 n. 11, 2789; see also Laster , 275 S.W.3d at 518 ; Williams , 235 S.W.3d at 750 .

The

sufficiency-of-the-evidence standard gives full play to the responsibility of

the fact finder to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact

finder resolved any conflicts in the evidence in favor of the verdict and

defers to that resolution, provided that the resolution is rational. See

Jackson , 443 U.S. at 326 , 99 S. Ct. at 2793 . In viewing the record, direct and

circumstantial evidence are treated equally; circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton ,

235 S.W.3d at 778 . Finally, the

“cumulative force” of all the circumstantial evidence can be sufficient for a

jury to find the accused guilty beyond a reasonable doubt. See

Powell v. State , 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B. Elements of the Offense and Pertinent

Legal Principles

Here, the State was required

to show that appellant possessed a controlled substance, namely, hydrocodone,

weighing at least 400 grams by aggregate weight, including adulterants and

dilutants, with the intent to deliver it. See Tex. Health & Safety Code Ann. §§ 481.102(3),

481.112(a),(f). “To prove

possession, the State must show the accused (1) exercised control, management,

or care over the contraband and (2) knew the substance possessed was

contraband. Evans v. State , 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Roberts v. State , 321 S.W.3d 545, 548

(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). Possession may be proved through either

direct or circumstantial evidence. Poindexter v. State , 153 S.W.3d 402 , 405–406

(Tex. Crim. App. 2005); see also Rice v. State , 195 S.W.3d 876, 881 (Tex.

App. — Dallas 2006, pet. ref’d)

(stating jury could infer knowing or intentional possession of contraband).

The term “deliver” means to

transfer, actually or constructively, a controlled substance to another. Tex.

Health & Safety Code Ann. § 481.002(8) (Vernon 2010). Intent to deliver a controlled substance can

be proven by circumstantial evidence, including evidence that an accused

possessed the contraband. Moreno v. State , 195 S.W.3d 321, 325

(Tex. App. — Houston

[14th Dist.] 2006, pet. ref’d); (citing Patterson

v. State , 138 S.W.3d 643, 649 (Tex. App. — Dallas 2004, no pet.); Mack v. State , 859 S.W.2d 526, 528 (Tex. App. — Houston [1st Dist.] 1993, no pet)).

Other factors courts have considered

include the following: (1) the nature of the location at which the accused was

arrested; (2) the quantity of contraband in the accused’s possession; (3) the

manner of packaging; (4) the presence or lack thereof of drug paraphernalia

(for either use or sale); (5) the accused’s possession of large amounts of

cash; and (6) the accused’s status as a drug user. Id.

at 325–26 (citing Lewis v. State , 664 S.W.2d 345, 349

(Tex. Crim. App. 1984); Williams v. State ,

902 S.W.2d 505, 507 (Tex. App. — Houston [1st Dist.] 1994, pet. ref’d)). An oral expression of intent is not required. Moreno ,

195 S.W.3d at 326 . “Intent can be inferred from the acts, words,

and conduct of the accused.” Patrick v. State , 906 S.W.2d 481, 487

(Tex. Crim. App. 1995).

With these principles in

mind, we turn to appellant’s arguments and the evidence in the record.

C. Analysis

Appellant does not dispute

that he “possessed” the hydrocodone; rather, he contends that no evidence

showed that he had the intent to deliver it.

To support his sufficiency challenge, appellant points out that the

State presented no evidence regarding a number of the factors listed

above.

Generally, appellant

accurately cites the record. Appellant’s

analysis, however, does not appropriately view the evidence in the light most

favorable to the verdict and improperly discounts evidence showing that he had

the intent to deliver the hydrocodone. Appellant

also does not recognize that the number of factors present is not as important

as the logical force the factors have in establishing the elements of the

offense. See Moreno ,

195 S.W.3d at 326 ; see also Gilbert v.

State , 874 S.W.2d 290, 298 (Tex. App. — Houston [1st Dist.] 1994, pet. ref’d).

Appellant also relies on Officer

Lopez’s testimony regarding appellant’s oral statements at the motel. Officer Lopez testified that appellant told

him that he was ill and had traveled from Alabama to Houston because it was a

cheaper place to fill his prescriptions.

Appellant contends that this shows that he did not have the required

intent to deliver. Again, appellant does

not recognize established legal precepts, namely, that the jury was entitled to

weigh and to resolve conflicts in the evidence and to draw reasonable inferences

from the evidence. See Clayton , 235 S.W.3d at

778 . Also, when faced with conflicting

evidence, we “presume the trier of fact resolved any such conflict in favor of

the prosecution.” See Turro v. State , 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

Here, appellant’s written

statement showed that he possessed the hydrocodone with the intent to deliver

it to another. In his statement,

appellant indicated that he was paid by Mann to travel to Texas to recruit

homeless people to obtain prescription medication, which he then shipped back

to Alabama for Mann.

Appellant correctly points

out that established precedent requires that a defendant’s extrajudicial

confession be corroborated by other evidence tending to prove that the corpus

delicti of the crime occurred. See Salazar v. State , 86 S.W.3d 640, 644

(Tex. Crim. App. 2002); Williams v. State ,

958 S.W.2d 186, 190 (Tex. Crim. App. 1997). In other words, evidence must be presented that

the crime occurred independent of a defendant’s confession. See Salazar ,

86 S.W.3d at 644 ; Williams , 958

S.W.2d at 190 . Importantly, the

corroborating evidence need not be independently sufficient to prove the

offense. Rocha v. State , 16 S.W.3d 1 , 4–5 (Tex. Crim. App. 2000). Instead, the independent, corroborating

evidence need only “render the commission of the offense more probable than it

would be without the evidence.” Williams , 958 S.W.2d 190 (quoting Chambers v. State , 866 S.W.2d 9, 15-16

(Tex. Crim. App. 1993); see also Rocha ,

16 S.W.3d 1 , 4–5.

Here, intent to deliver is

part of the corpus delicti of the charged offense. See Tex.

Health & Safety Code Ann. § 481.112(a),(f). Appellant contends that his confession

indicating that he possessed the hydrocodone for the purpose of delivering it

to Mann was not corroborated; therefore, the evidence is insufficient to prove

beyond a reasonable doubt that he committed the charged offense.

We are mindful that the corroborating

evidence need not be sufficient alone to prove that appellant harbored the

requisite intent to deliver; rather, the corroborating evidence need only make

this conclusion more probable than it would be without such evidence. See Williams ,

958 S.W.2d at 190 . A review of the

record reveals such corroborating evidence.

At trial, the evidence

showed that the police first encountered appellant in his motel room. Appellant admitted that he had traveled from

Alabama to Houston for the purpose of obtaining prescription medication. Although appellant said that he was the only

occupant of the room, a number of other individuals were in the motel

room. After appellant consented to a

search of the motel room, the police found 25 prescription bottles containing

pills scattered on the bed. Fifteen of

the bottles indicated that the medication had been prescribed to appellant; the

other 10 bottles bore the names of other individuals. The police also found two empty prescription

bottles.

The package intercepted by

the postal service indicated that it was being mailed to appellant’s address in

Alabama with a return address bearing appellant’s name and the street address

of the Houston motel. The package

contained approximately 860 pills, which was later determined to contain 488.4

grams of dihydrocodeinone, which is hydrocodone and acetaminophen. Agent McClaid’s testimony indicated that the

pills in the package were not in prescription bottles but were loose in five smaller

packages packed inside the larger package.

In addition to the package that was intercepted, Agent McClaid confirmed

that a package had been mailed to Chris Mann, with appellant’s name on the

return address. We conclude that the

foregoing corroborating evidence made the determination that appellant had the

intent to deliver the hydrocodone more probable than it would be without such

evidence. See Williams , 958 S.W.2d at 190 .

When viewed in a light most

favorable to the verdict, given the corroborating evidence and appellant’s written

statement, the evidence is sufficient to support a rational jury’s finding,

beyond a reasonable doubt, that appellant possessed the hydrocodone with the

intent to deliver. See id. (concluding that appellant’s confession and corroborating

evidence was legally sufficient to support jury’s finding of guilty in murder

case). Accordingly, we hold that the

evidence is sufficient to support the judgment of conviction.

We overrule appellant’s sole

issue.

Void Sentence [3]

A sentence that is outside

the maximum or minimum range of punishment is unauthorized by law and therefore

illegal. Mizell v. State , 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). As a result, a sentence outside the statutory

punishment range for an offense is void. See Hern

v. State , 892 S.W.2d 894, 896 (Tex. Crim. App. 1994). If a sentence is void because it is below the

minimum sentencing range, an appellate court has no authority to reform the

judgment. See Scott v. State , 988 S.W.2d 947, 948 (Tex. App.—Houston [1st

Dist.] 1999, no pet.); cf. Tex. Code of Crim. Proc. Ann . art.

37.10 (permitting trial or appellate court to omit punishment when jury assesses

punishment that is both authorized by law and not authorized by law for the

offense). A new punishment hearing is the

only remedy when the assessed punishment falls below the minimum required. See Scott

v. State , 988 S.W.2d 947, 948 (Tex. App.—Houston [1st Dist.] 1999, no

pet.); see also T ex. Code Crim. Proc. Ann. art.

44.29(b).

The sentencing range for the

offense of possession of a controlled substance, such as hydrocodone, weighing

at least 400 grams, including adulterants or dilutants, is confinement for life

or for a term of 15 to 99 years, and a

fine not to exceed $250,000. See Tex. Health & Safety Code

Ann. § 481.112(f). Here,

the record shows that the trial court sentenced appellant to 30 years in prison

but did not impose a fine, as statutorily required. Because appellant’s sentence did not include a

fine, the punishment assessed fell below that required, was not authorized by

law, and is therefore illegal and void. See Scott , 988 S.W.2d at 948 (holding

that sentence, which did not including mandatory fine, was void in case in

which appellant was convicted of possession with intent to deliver at least 400

grams of cocaine); see also Mizell ,

119 S.W.3d at 806 ; Hern , 892 S.W.2d at

896 . Accordingly, we hold that appellant

is entitled to a new sentencing hearing. See Scott ,

988 S.W.2d at 948 .

Conclusion

We affirm the trial court’s

judgment with respect to appellant’s conviction, reverse the portion of the

judgment assessing punishment, and remand the case to the trial court for a new

sentencing hearing and assessment of punishment within the applicable

punishment range. See Tex. R. App. P.

43.2(d); see also Tex. Code Crim. Proc. art. 44.29(b).

Laura Carter Higley

Justice

Panel consists of

Justices Jennings, Higley, and Brown.

Do not

publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Health & Safety Code Ann.

§§ 481.102(3), 481.112(a),(f) (Vernon 2010).

[2] See

Tex. Health & Safety Code Ann.

§ 481.112(f) (requiring both confinement and fine be assessed in cases

involving possession with intent to deliver at least 400 grams of Penalty Group

1 controlled substance, which include hydrocodone).

[3] Any court with jurisdiction may, on its own motion

and at any time, notice and take action upon a void or illegal sentence. See

Mizell v. State , 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Baker v. State , 278 S.W.3d 923, 926

(Tex. App. — Houston [14th Dist.] 2009, pet. ref’d). For this reason, we may take action to correct

appellant’s sentence, even though neither party complains of it. See

Mizell , 119 S.W.3d at 805 .