Petition for Writ of Certiorari — Campbell v. Texas

Supreme Court, Us.

FILED

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In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

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LARRY CAMPBELL,

Petitioner

v.

THE STATE OF TEXAS,

Respondent

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Petition For Writ of Certiorari To the Texas Court

of Appeals for the First Court of Appeals District

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PETITION FOR WRIT OF CERTIORARI

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* Jerome Godinich, Jr. R. Scott Shearer

TBA No. 08054700 TBA No. 00786464

1018 Preston, Suite 300 315 W. Alabama, Suite 107

Houston, TX 77002 Houston, TX 77006

(713) 237-0002 (713) 529-1918

(713) 224-2889 FAX (713) 529-2343 FAX

Counsel for Petitioner

* Counsel of Record

QUESTION PRESENTED FOR REVIEW

The Defendant was charged with possession of

cocaine and failure to pay tax on a controlled substance. The

controlled substance tax statute provides that a “dealer” of

drugs commits an offense if the dealer possesses a controlled

substance on which the tax has not been paid. “Dealer” is

defined as a person who imports, manufactures, produces,

acquires, or possesses more than seven grams of a controlled

substance. Does this deny the Defendant due process under

the Fourteenth Amendment?

ii

LIST OF PARTIES

Pursuant to Sup. CT. R. 14.1(b), the undersigned

counsel of record certifies that the following listed persons

have an interest in the outcome of this case.

Mr. R. Scott Shearer

Mr. Jerome Godinich - Counsel for Appellant.

315 W. Alabama, Ste. 107

Houston, TX 77006

Ms. Tanya L. Elliott - Counsel for Appellant on

appeal only.

P.O. Box 667118

Houston, TX 77266

Mr. Larry Campbell - Appellant.

Mr. Michael R, Little

Mr. Steve Green - Counsel for the State of

Texas.

P.O. Box 1409

Anahuac, TX 77514

Hon. Carroll E. Wilborn - Presiding Judge of the

Trial Court.

344th Judicial District Court

Chambers County Courthouse

Anahuac, TX 77514

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW............ il

LIST OF ALL PARTIES........c..ccccccccccsscssersosseecsconees ill

TABLE OF AUTHORITIEG................cccccsesssesseenees V, Vi

CITATIONS TO OPINIONS BELOW..................... l

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CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE............:cccccccseesseeeseeeenenens l

STATEMENT OF THE CASE.............:cccccsseseeeeseenes 2

SUMMARY OF THE ARGUMENT...............:::00004 3

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TABLE OF AUTHORITIES

CASES

Bass v. State, 830 S.W.2d 142 (Tex. App. - Houston

12 4OG Woes.) TODZ, BOL. TOT). ..vecececsscscesisvenbtesorsnstocsbin 5

Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098

Campbell v. State, --- S.W.2d ---, (Tex. App. -

Houston [1st Dist.] 1995, pet. ref’d)

CE DS We ta ee Pee Risen icsnnsiniasinnckahsnasndaipicntancessdtegesinies ae

Carella v. California, 491 U.S. 263, 109 S.Ct. 2419

CR iii cintieihbsconssiaticaniaisinmecbensaimaibualbenticaniandiaaba 4

Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965

ED TIar i ocs.cissiniccsssiabvadiebiomaperbilaideacaedecielibvaaumenaebaanbacaiian 4

Leary v. United States, 395 U.S. 6, 89 U.S. 1532

OR SGBD cansnsiccicccscnicctcsinnrtiiniciiitaanmaaannanunaimaloniiled 6

Lowry v. State, 692 S.W.2d 86 (Tex. Cr. App.

Menna v. New York, 423 U.S. 61, 96 S.Ct. 241

RR ei iactannct nia dutatasent dameensendacne eine aektecuaenties 3

Sandstrom v. Montana, 442 U.S: 510, 99 S.Ct. 2450

i, EF 51s Eee Oe ETE 4

Turner v. United States, 396 U.S. 398, 90 S.Ct. 642

hf tbat othe a Bical nee Mealthie totale diate 6

STATUTES

(2A n + okt > . » Sa eRe R ana mNCTES SAE l

TEx. HEALTH & SAFETY CODE ANN. §481.002

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TEX. TAX. CODE ANN. §159.001(3)

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TEX. TAX. CODE ANN. §159.001(3)(A)

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TEX. TAX CODE ANN. §159.201(Vernon 1995)......1, 4

RULES

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vi

CITATION TO OPINIONS BELOW

The opinion of the First Court of Appeals is not

reported. It is included in the appendix to this writ. The

opinion may also be retrieved electronically by citation to

1995 WL 457263.

STATEMENT OF JURISDICTION

The judgment of the court of appeals was entered on

August 3, 1995. The Defendant’s Petition for Discretionary

Review was denied by the Texas Court of Criminal Appeals

on October 11, 1995. This Court has jurisdiction pursuant to

28 U.S.C. §1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

The Fourteenth Amendment to the United States

Constitution reads in pertinent part:

[N]or shall any state deprive any person of life,

liberty, or property, without due process of law

The Texas tax statutes in question provide in pertinent

part as follows:

A dealer commits an offense if the dealer

possesses a controlled substance on which the

tax imposed by this chapter has not been paid.

TEx. TAX. CODE ANN. §159.201(Vernon 1995).

“Dealer” means a person who in violation of

the law of this state imports into this state or

manufactures, produces, acquires, or possesses

in this state:

(A) seven grams or more of a taxable

substance containing a controlled substance, or

simulated controlled substance.

TEX. TAX. CODE ANN. §159.001(3)(Vernon 1995).

STATEMENT OF THE CASE

The Defendant was charged with possession of

cocaine and failure to pay tax on a controlled substance. The

two indictments were consolidated for trial. The Defendant

pleaded guilty and was sentenced to ten years confinement

and a $1000.00 fine on the possession offense and five years

confinement and a $52,800.00 fine on the tax count. The

Defendant then appealed to the court of appeals, where he

argued that the controlled substance tax statute was

unconstitutional because the definition of “dealer” denied him

due process of law. See Campbell v. State, --- S.W.2d ---,

2

(Tex. App. - Houston [lst Dist.] 1995, pet. ref'd)(1995 WL

457263). After the court of appeals affirmed his convictions,

the Defendant filed a Petition for Discretionary Review with

the Court of Criminal Appeals. Defendant’s petition was

denied on October, 11, 1995. This Petition for Writ of

Certiorari is timely filed within 90 days of the entry of the

order denying review. See Sup. CT. R. 13.1.

SUMMARY OF THE ARGUMENT

Sections 159.201 and 159.001(3) of the Texas Tax

Code are unconstitutional on their face because the definition

of “dealer” creates a mandatory or permissive presumption of

fact that is inconsistent with the due process requirements of

the Fourteenth Amendment.

ARGUMENT

A Defendant is not prohibited from raising some

constitutional violations even after a plea of guilty. Menna v.

New York, 423 U.S. 61, 96 S.Ct. 241 (1975); Blackledge v.

Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2104 (1974). The

question is whether the constitutional violation would stand in

the way of conviction even if factual guilt is established.

Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 242

n. 2 (1975). The Petitioner asserts that his plea of guilty does

not prohibit him from challenging the facial

unconstitutionality of the criminal statute upon which his

conviction lies. A conviction obtained upon a facially

unconstitutional statute is invalid despite an admission of

factual guilt.

Appellant was charged with the offenses of possession

of a controlled substance’ and failure to pay tax on a

controlled substance. See Campbell v. State, --- S.W.2d ---,

(Tex. App. - Houston [lst Dist.] 1995, pet. ref'd)(1995 WL

457263). Section 159.201 of the Texas Tax code defines the

elements of the offense of failure to pay a controlled

substance tax. It is an offense for a dealer to possess a

controlled substance on which the tax imposed has not been

paid. TEX. TAX CODE ANN. 159.201. The definition of

"dealer" presumes that one who possesses more than seven

grams of a controlled substance is a dealer. TEX. TAX CODE

ANN. §159.001(3)(A)(Vernon 1995). The applicable portion

of §159.001(3) reads as follows:

“Dealer” means a person who in

violation of the law of this state imports into

this state or manufactures, produces, acquires,

or possesses in this state:

(A) seven grams or more of a taxable

substance containing a controlled substance, a

counterfeit substance, or simulated controlled

substance.

' The Defendant was not charged with the higher offense of

delivery of a controlled susbstance or possession with intent

to deliver a controlled substance.

4

Tex. TAX. CODE ANN. §159.001(3)(A)(Vernon 1995).

The simultaneous operation of Sections 159.201 and

159.001 create a conclusive mandatory presumption. A

mandatory presumption is one that requires the fact finder’ to

find an elemental fact upon proof of a predicate fact, or

requires an accused to disprove the elemental fact once the

predicate fact has been shown by the state. Francis v.

Franklin, 471 U.S. 307, 314 n.2, 105 S.Ct. 1965, 1971 n.2

(1985). A mandatory presumption that eliminates the State's

burden of proof of the elemental fact, or shifts the burden on

the accused to disprove the elemental fact, is deemed

unconstitutional. Carella v. California, 491 U.S. 263, 109

S.Ct. 2419 (1989); Sandstrom v. Montana, 442 U.S. 510, 99

S.Ct. 2450 (1979); Francis v. Franklin, 471 "J.S. 307, 105

S.Ct. 1965 (1985). Texas courts recognize this proposition of

law. See e.g., Lowry v. State, 692 S.W.2d 86 (Tex. Cr. App.

1985)(Penal Code Sec. 25.05(f) providing that it is an

affirmative defense to criminal nonsupport that actor could

not provide support violated due process clause by shifting to

defendant the burden of disproving that element of the

offense).

Section 159.201 of the Texas Tax Code provides that

a dealer commits an offense if the dealer possesses a taxable

substance on which the tax imposed by this chapter has not

been paid. The status of "dealer" is clearly one of the

elements of the offense that the state must prove. See Bass v.

* Although the fact finder in this case was the trial court,

Texas law requires sufficient evidence independent of the

guilty plea itself before a defendant may be found guilty of a

felony offense. See TEX. CRIM. PROC. CODE ANN. art. 1.15

(Vernon 1995).

5

State, 830 S.W.2d 142, 148 (Tex. App. - Houston [14th Dist.]

1992, pet. ref'd). Therefore, dealer is an “elemental fact."

Likewise, the act of possessing more than seven grams of a

controlled substance is the predicate fact. The state's burden

of proof to show that the accused is a dealer is therefore

eliminated by proof of the predicate fact that the accused

possessed more than seven grams of a controlled substance.

This denies the defendant due process of law. Because of the

way the term “dealer” is defined by the statute, a defendant

charged with possessing more than seven grams of a

controlled substance is completely foreclosed from contesting

the fact that he is not a drug “dealer”. A defendant may be

charged and convicted for being a tax avoiding drug dealer

even though he or she may have had more than seven grams

of a controlled substance strictly for personal use.

B. The presumption created by operation of TEx.

TAX CODEANN. §$159.201and 159.001(3), even if

a beta Rieetinnel andl adhd

In the alternative, Section 159.001(3) is

unconstitutional because the statutory permissive presumption

of "dealer" status is not rationally related to possession of

seven Or more grams of a controlled substance. A statute

creating a permissive presumption of fact that is an element of

the offense may be established by proof of an underlying fact.

However, this presumption of an elemental fact is

unconstitutional if the underlying fact is not rationally related

to the element of the offense. Leary v. United States, 395

U.S. 6, 33, 89 U.S. 1532, 1546 (1969). A _ statutory

presumption is irrational or arbitrary unless there is

substantial assurance that the presumed fact is more likely

than not to flow from the provided fact upon which it

6

depends. Leary, 395 U.S. at 36, 89 S.Ct. at 1548. In Leary,

this Court applied this standard to a tax on the possession of

illegally imported marijuana. The Court held the statutory

presumption that mere possession was sufficient to prove

knowledge that the marijuana was illegally imported was

unconstitutional, concluding that knowledge of its illegal

importation was not more likely than not to flow from the act

of possession. Leary, 395 U.S. at 54, 89 S.Ct. at 1557. See

Turner v. United States, 396 U.S. 398, 90 S.Ct. 642

(1970)(Statutory presumption that unexplained possession of

cocaine is sufficient proof of trafficking offended due

process. ).

The statute in the case at bar assumes that the mere

possession of a certain quantity is sufficient to establish a

defendant's status as a drug dealer. The conclusion that one is

a dealer does not flow, more likely than not, from the fact that

they possess more than seven grams of a controlled substance.

Even a cursory sampling of drug cases teaches us that there is

no magic quantity that can distinguish between those

defendants who possess drugs for their personal use versus

those who deal drugs to others. A “dealer” may be the corner

crack purveyor selling one or two rocks or a member of a

major Colombian cartel. Likewise, a person who uses drugs

without selling them may possess a controlled substance in

large or small quantities.

It is pure folly to suggest, without any evidence, that

those who possess less than seven grams of a controlled

substance are not dealers and those that possess 7.01 grams or

more are drug dealers. Significantly, the statute makes no

distinction between the various types of drugs. See TEX.

TAX. CODE ANN. §159.001(3)(A)(Vernon 1995). The seven

gram cut-off point makes a “dealer” out of anyone who

possesses such weight variable drugs as LSD, morphine,

codeine, cocaine, opium, and heroin. See TEX. HEALTH &

7

Pe

ine seksi? he AiO

SAFETY CODE ANN. §481.002 (Vernon 1995). A defendant

who possesses over seven grams of LSD will, more than

likely, prove to be a “dealer”, whereas a defendant who

possesses over seven grams of cocaine may not. It is this

arbitrariness and irrationality that renders the statute

unconstitutional.

CONCLUSION

Section 159.201 of the Texas Tax Code, when used in

conjunction with the Section 159.001(3) definition of

“dealer”, operates to deny defendants due process of law

under the Fourteenth Amendment to the United States

Constitution.

Respectfully submitted,

Jerome Godinich, Jr.

TBA No. 08054700

1018 Preston, Suite 300

Houston, TX 77002

(713) 237-8388

(713) 224-2889 (FAX)

Counsel of Record

R. Scott Shearer

TBA No. 00786464

315 W. Alabama, Suite 107

Houston, TX 77006

(713) 529-1918

(713) 529-2343 FAX

Counsel for Petitioner

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

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LARRY CAMPBELL,

Petitioner,

Vv.

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THE STATE OF TEXAS,

Respondent,

; © ----

; Petition For Writ of Certiorari To the Texas Court

: of Appeals for the First Court of Appeals District

e ‘

PETITION FOR WRIT OF CERTIORARI

cusunedinbnnonsiont Qecenntttwentecccimn

OPINION

Judgment affirmed and Opinion filed August 3, 1995

In The

Court of Appeals

For The

First District of Texas

NOS. 01-94-00261-CR

01-94-00262-CR

LARRY CAMPBELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause Nos. 7891 & 7892

OPINION

Appellant, Larry Campbell, was indicted in

cause number 7891 for the offense of aggravated possession

of cocaine; the indictment alleged he used or exhibited a

deadly weapon, namely a firearm, during the commission of

2

Tis

the offense. Appellant was indicted in cause number 7892 for

failure to pay a controlled substance tax; the indictment again

alleged he used or exhibited a firearm during the commission

of the offense. The two indictments were consolidated for

trial.

After the trial court denied his motion to suppress, appellant

entered a plea of nolo contendere to both charges. The trial

court made affirmative findings that a deadly weapon was

used during the commission of both offenses. The trial

court then assessed punishment in cause number 7891 at 10-

years confinement and a $1000 fine and in cause number

7892, at 5-years confinement and a $52,800 fine. We

affirm.

Waiver of complaints on appeal

In the absence of a plea bargain agreement, a

voluntary plea of guilty waives all nonjurisdictional defects

occurring before the entry of the guilty plea. Jack v. State,

871 S.W.2d 741, 743 (Tex. Crim. App. 1994). Under this

rule, commonly known as the Helms’ rule, nonjurisdictional

defects are waived by pleas of either guilty or nolo

contenders. Jack, 871 S.W.2d at 742.

Here, appellant pled nolo contendere to both

charges without an agreed recommendation on punishment.

Appellant gave his plea in open court and signed the written

plea admonishments. Therefore, he has waived his right to

complain on appeal of defects which are not jurisdictional

that occurred before the entry of his plea.

a. Jurisdictional Defects for Purposes of the Helms

Rule

We are not dealing here with defects which

deprive the trial court of jurisdiction. Rather, we are

addressing jurisdictional defects for purposes of the Helms

rule, where a jurisdictional defect is, by definition, one

which may be raised on appeal despite the voluntary entry

of a plea of guilty. Jurisdictional defects include some

errors of constitutional dimension, but exclude others. The

basis for distinguishing which constitutional error is

"jurisdictional" was explained by the Supreme Court in

Menna v. New York, 423 U.S. 61, 62 n.2, 96 S. Ct. 241, 242

n.2 (1975) (holding that a double jeopardy claim was not

waived by the entry of a plea of guilty):

The point of these cases is that a counseled

plea of guilty is an admission of factual guilt

so reliable that, where voluntary and

intelligent, it quite validly removes the issue of

factual guilt from the case. In most cases,

factual guilt is a sufficient basis for the State's

imposition of punishment. A guilty plea,

therefore, simply renders irrelevant those

constitutional violations

'Helms v. State, 484 S.W.2d 925 (Tex. Cr. App. 1972).

Bf

not logically inconsistent with the valid

establishment of factual guilt and which do not

stand in the way of conviction if factual guilt is

4

validly established. Here, however, the claim

is that the State may not convict petitioner no

matter how valid his factual guilt is

established. The guilty plea, therefore does

not bar the claim.

(Emphasis added.)

Menna relied Upon Blackledge v. Perry, 417

U.S. 21, 30, 94 S. Ct. 2098, 2103 (1974), for the proposition

that "[w]Jhere the State is precluded by the United States

Constitution from haling a defendant into court on a charge,

federal law requires that a conviction on that charge be set

aside even if the conviction was entered pursuant to a

counseled plea of guilty." Menna, 423 U.S at 62, 96 S. Ct. at

242. In Blackledge, the Supreme Court had distinguished

between cases where the constitutional error had been

coerced confessions or tainted indictments and those cases

where the constitutional error involved the "right not to be

haled into court at all." 417 U.S. at 30, 94 S. Ct. at 2104.

Error which may be raised on appeal despite a plea of guilty

is, thus, error of a constitutional dimension which goes "to

the very power of the State to bring the defendant into court

to answer the charge brought against him." Id. at 30, 94 S.

Ct. at 2103.

The Court of Criminal Appeals first applied Menna within

the context of a post-conviction writ of habeas corpus

proceedings See Ex parte Green, 548 S.W.2d 914, 915 (Tex.

Crim. App. 1977) (addressing a claim of violation of the

doctrine of carving, a Texas common-law variety of double

jeopardy protection which no longer exists).’ Judge Clinton

included Menna in his warning that not all antecedent

constitutional violations were waived by the Helms rule in

King v. State, 687 S.W.2d 762, 767 n.3 (Tex. Crim. App.

1985) (Clinton, J., concurring).”

: The carving doctrine was abandoned in Ex parte

McWilliams, 634 S.W.2d 815, 824 (Tex. Crim.

App. 1980) (op. on reh'g).

Judge Clinton’s understanding of the Helms rule was

adopted by the full court in Jack v. State, 871 S.W.2d

at 742-44.

vie

The Fifth Court of Appeals relied upon

Menna in holding that a claim of double jeopardy was not

waived by the entry of a voluntary plea of guilty. Harrison

v. State, 721 S.W.2d 904, 905 (Tex. App.--Dallas 1986),

rev'd on other grounds, 788 S.W.2d 18, 24 (Tex. Crim.

App. 1990). This Court held that attacks on the

constitutionality of the controlled substances tax statute

were not waived by a plea of guilty in Lopez v. State, 837

S.W.2d 863, 865 (Tex. App.--Houston [Ist Dist.] 1992, no

pet.).

Accordingly, we now hold that a claim is

jurisdictional for purposes of the Helms rule, when it goes to

the very power of the State to bring the defendant into court

to answer the charge against him. This includes claims of

double jeopardy and facial unconstitutionality of the statute

prescribing the offense alleged, but does not include

constitutional violations in obtaining evidence, defects in

the indictment, or sufficiency of the evidence. We now

determine whether appellant has raised jurisdictional defects

or waived his appellate complaints.

b. Violations of Federal Due Process

In points of error one, three, and four,

appellant contends the controlled substance tax statute, TEX.

TAX CODE ANN. §§ 159.001, 159.101, 159.201 (Vernon

1992), is unconstitutional because the statute violates his

right to due process under the United State Constitution.

1. Tax on foreign property

In his first point of error appellant challenges

the constitutionality of the controlled-substance tax statute

that required him, a nonresident of Texas, to pay a property

tax on cocaine that did not obtain a situs in Texas.

Appellant was convicted under TEX. TAX

CODE ANN § 159.201 (Vernon 1992) that provides a dealer

commits an offense if the dealer possesses a taxable

substance on which the tax imposed by the code has not

been paid. Section 159.101 sets forth the taxes to be

imposed on the possession, purchase, acquisition,

importation,

-4-

manufacture, or production by a dealer of a taxable substance.

TEx. TAX CODE ANN. § 159.101

(Vernon 1992). A taxable substance is defined as, among

other things, a controlled substance under TEX. HEALTH &

SAFETY CODE ANN. § 481.002 (Vernon 1992). TEX. TAX

CODE ANN. § 159.001 (Vernon 1992).

Appellant argues that he was a resident of

Louisiana, the controlled substance was only temporarily in

7

ee ee eee ee Oe Rey a A ol ee

;

ie

Texas, and the substance did not acquire situs in Texas.’ He

contends,- therefore, the tax imposed on him was in violation

of the due process clause, and the tax was unconstitutional.

Appellant is not contending the statute is facially

unconstitutional, that is, it is unconstitutional under every

circumstance to which it is applied. Rather, he contends it is

only unconstitutional as it was applied to him. Therefore,

appellant's complaint is not jurisdictional for purposes of the

Helms rule. Appellant has waived his first point of error.

Accordingly, we overrule point of error one.

2. Presumption of Dealer Status

In points three and four, appellant contends

that his federal due process rights were violated because TEX.

TAX CODE ANN. § 159.001 (Vernon 1992) contains either a

mandatory or permissive statutory presumption. Appeliant

specifically targets the definition of "dealer:"

(3) "Dealer" means a person who in

violation of the law of this state

imports into this state or manufactures,

produces, acquires, or possesses in this

State:

(A) seven grams or more of a taxable

substance consisting of or containing a

controlled substance, counterfeit

substance, or simulated controlled

substance; ...

There is no evidence in the record of how long the

cocaine was in Texas or of how it came into

appellant’s possession.

Mr

Tex. TAX CODE ANN. § 159.001(3A) (Vernon 1992).

Appellant's particular complaint is that the statute sets up an

unconstitutional presumption that one who possesses more

than seven grams of a controlled substance is a dealer.

It appears that appellant has raised an attack on

the facial constitutionality of the statute under which he was

prosecuted. We are, therefore, required to address appellant's

third and fourth points of error on the merits. See Lopez, 837

S.W.2d at 865 (where this Court addressed several attacks of

the constitutionality of the same statute). When an appellate

court is called upon to determine the constitutionality of a

statute, the initial presumption is that the statute is

constitutional. Jd.

Appellant argues that the statute establishes a

presumption which relieves the State from proving every

element of the offense beyond a reasonable doubt. The State

responds that the statute provides a definition of dealer, rather

than a presumption arising from an underlying factual

predicate. The State asserts that appellant's argument is

similar to the one raised and rejected in Forte v. State,, 707

S.W.2d 89, 93-94 (Tex. Crim. App. 1986) (holding that the

definition of intoxication, replacing the former presumption,

was not a presumption at all). We agree.

The legislature has defined the offense of

possession of an item if tax unpaid as applicable to "a person

9

who in violation of the law of this state imports into this state

or manufactures, produces, acquires, or possesses in this state

seven grams or more of a taxable substance consisting of or

containing a controlled substance, counterfeit substance, or

simulated controlled substance." TEX. TAX CODE ANN. §§

159.001(3)(A), 159.201(a) (Vernon 1992). Appellant has not

demonstrated any reason why the iegislature's determination

to tax those who unlawfully possess seven grams or more of a

controlled substance is unsound. Appellant has failed to rebut

the presumption of constitutionality enjoyed by legislative

enactments. See Lopez, 837 S.W.2d at 865-67.

4

Therefore, we find no facial constitutional

defect in the statutory definition of "dealer." We overrule

points of error three and four.

ce. Lack of Jurisdiction to Tax Appellant's Property

In point of error two, appellant contends his

conviction for failure to pay the controlled substance tax is

invalid because, under TEX. TAX CODE ANN. § 11-01

(Vernon 1992), the State of Texas did not have jurisdiction

to tax his property. Section 11.01(c) authorizes the State to

tax personal property if it is in the State for longer than a

temporary period. Appellant contends the cocaine was only

temporarily in Texas.” Appellant does not complain that the

statute is facially unconstitutional; instead, he argues that it

is unconstitutional as applied to him because his property

was not subject to taxation under the Tax Code. appellant’s

complaint is not jurisdictional for purposes of the Helms

rule; therefore, he has waived it on appeal.

We overrule point of error two.

10

d. Denial of Motion to Suppress Evidence

In points of error five and six, appellant

contends the trial court erred by denying his motion to

suppress the cocaine because his detention by the police was

not lawful and because he did not voluntarily consent to

search the car in which the cocaine was found. Because

appellant pled nolo contendere without an agreed

recommendation on punishment, he has waived for review

on appeal any error regarding the denial of his motion to

suppress. Wheeler v. State, 628 S.W.2d 800, 803 (Tex.

Crim. App. 1982). Any error in denying a motion to

suppress evidence is not jurisdictional for purposes of the

Helms rule. Shallhorn v. State, 732 S.W.2d 63610 637

(Tex. Crim. App. 1987) (finding that plea of guilty without

plea bargain agreement waived review of pretrial motion to

suppress confession). Appellant waived his fifth and sixth

points of error.

We overrule points of error five and six.

The record is silent as to when and where appellant

obtained the cocaine.

ll

£

$

Conclusion

We affirm the court’s judgment in cause numbers 7891 and

7892.

</ Timm Taf

Tim Taft

Justice

Chief Justice Oliver-Parrott and Justice O'Connor also

participating.

Do not publish. TEX. R. App. P. 90.

Judgment rendered and opinion delivered AUG - 3 1995

True Copy Attest:

/s/

Margie Thompson

Clerk of Court

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STATUTORY MATERIAL

TX TAX s 159.001

V.T.C.A., Tax Code § 159.001

VERNON’S TEXAS STATUTES AND CODES

ANNOTATED

TAX CODE

TITLE 2. STATE TAXATION

SUBTITLE E. SALES, EXCISE, AND USE TAXES

CHAPTER 159. CONTROLLED SUBSTANCES TAX

SUBCHAPTER A. GENERAL PROVISIONS

Copr. West 1996. All rights reserved.

Current through end of 1995 Reg. Sess.

§ 159.001. Definitions

In this chapter:

(1) "Controlled substance’ has the meaning assigned by

Section 481.002, Health and Safety Code.

(2) "Counterfeit substance’ has the meaning assigned by

Section 481-002, Health and Safety Code.

(3) "Dealer" means a person who in violation of the law

of this state imports into this state or manufactures,

produces, acquires, or possesses in this state:

(A) seven grams or more of a taxable substance consisting

of or containing a controlled substance, counterfeit substance,

or simulated controlled substance;

(B) fifty dosage units or more of a taxable substance not

commonly sold by weight, consisting of or containing a

controlled substance, counterfeit substance, or simulated

controlled substance; or

(C) more than four ounces of a taxable substance

consisting of or containing marihuana.

(4) "Marihuana" has the meaning assigned by Section

481.002, Health and Safety Code.

(5) "Simulated controlled substance" has the meaning

assigned by Section 482.001, Health and Safety Code.

(6) “Tax payment certificate" means a stamp or other

device provided by the comptroller under Section 159.003 of

this code for use under this chapter.

(7) "Taxable substance" means a controlled substance, a

counterfeit substance, a simulated controlled substance, or

marihuana, or a mixture of any materials that contains a

controlled substance, counterfeit substance, simulated

controlled substance, or marihuana.

(8) “Dosage unit" means a tablet, pill, capsule, via),

ampule, or other identifiable or separated unit designed or

packaged to be used, taken, or ingested at one time.

N05

; , f

CREDIT(S)

1992 Main Volume

Added by Acts 1989, 71st Leg., ch. 1152, § 1, eff. Sept. 1,

1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 284(45),

(65), eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 705, § 20,

eff. Sept. 1, 1991.

1996 Pocket Part

Copr. West 1996 No claim to orig. U.S. govt. works

TX TAX s 159.001

Amended by Acts 1993, 73rd Leg., ch. 1031, § 23, eff. Sept.

1, 1993.

HISTORICAL AND STATUTORY NOTES

1996 Pocket Part

1993 Legislation

The 1993 amendment, added a new subd. (3)(B) and

redesignated former subsec. (3)(B) as (3)(C), and added subd.

(8).

1992 Main Volume

Acts 1991, 72nd Leg., ch. 14, in subds. (1), (2), and (4),

substituted "Section 481.002, Health and Safety Code" for

"Section 1.02, Texas Controlled Substances Act (Article

4476-15, Vernon’s Texas Civil Statutes)", and in subd. (5),

substituted "Section 482.001, Health and Safety Code" for

"Section 1, Chapter 306, Acts of the 68th Legislature, Regular

Session, 1983 (Article 4476-15b, Vernon’s Texas Civil

Statutes)".

Acts 1991, 72nd Leg., ch. 705, § 20 made the same changes;

and in subsec. (3)(B) substituted "more than four ounces" for

"four ounces or more".

V.T. C. A., Tax Code § 159.001

TX TAX § 159.001

END OF DOCUMENT

Copr. West 1996 No claim to orig. U.S. govt. works

TX TAX s 159. 101

V.T.C.A., Tax Code § 159. 101

VERNON’S TEXAS STATUTES AND CODES

ANNOTATED

TAX CODE

TITLE 2. STATE TAXATION

SUBTITLE E. SALES, EXCISE, AND USE TAXES

CHAPTER 159. CONTROLLED SUBSTANCES TAX

SUBCHAPT'ER B. IMPOSITION, RATE, AND

PAYMENT OF TAX

Copr. West 1996. All rights reserved.

Current through end of 1995 Reg. Sess.

§ 159. 101. Tax Imposed; Rate of Tax

(a) A tax is imposed on the possession, purchase,

acquisition, importation, manufacture, or production by a

dealer of a taxable substance on which a tax has not

previously been paid under this chapter.

(b) The rate of the tax is:

(1) $200 for each gram of a taxable substance consisting

of or containing a controlled substance, counterfeit

substance, or simulated controlled substance;

(2) $3.50 for each grain of a taxable substance

consisting of or containing marijuana; and

(3) $2,000 on each 50 dosage units, or portion of 50 dosage

units, if the total amount is less than 50 dosage units, of

a controlled substance that is not sold by weight.

(c) The tax becomes due immediately when a dealer

possesses, purchases, acquires, manufactures, or produces in

this state or imports into this state the taxable substance on

which the tax has not previously been paid.

(d) In determining the total weight of taxable substance, a

part of a gram remaining after the measurement of whole

grams is considered as one gram.

(e) For purposes of this section, if a taxable substance

consists of a mixture containing both marihuana and another

substance listed in the definition of taxable substance

provided by Section 159.001 of this code, the taxable

substance is taxable under Subsection (b)(1) of this section

and not under Subsection (b)(2) of this section.

(f) Ifa determination made under this chapter becomes

final without payment of the amount of the determination

being made, the comptroller shall add to the amount a

penalty of 10 percent of the amount of the tax and interest.

(g) Ina redetermination proceeding held or a judicial

proceeding brought under this chapter, a certificate from the

comptroller that shows the issued determination is prima

facie evidence of:

(1) the determination of the stated tax or amount of the

tax;

(2) the stated amount of the penalties and interest: and

6

(3) the compliance of the comptroller with this chapter

in computing and determining the amount due.

(h) The suppression of evidence on any ground in a

criminal case that arises out of facts on which a

determination is made under this chapter or the dismissal of

criminal charges in such a case does not affect a

determination made under this chapter.

Copr. West 1996 No claim to

orig. U.S. govt. works

TX TAX s 159. 101

CREDIT(S)

1992 Main Volume

Added by Acts 1989, 71st Leg., ch. 1152, § 1, eff. Sept. 1,

1989. Amended by Acts 1991, 72nd Leg., ch. 484, § 1, eff.

Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 705, § 21, eff.

Sept. 1, 1991.

1996 Pocket Part

Amended by Acts 1995, 74th Leg., ch. 1000, § 57, eff. Oct.

1, 1995.

HISTORICAL AND STATUTORY NOTES

1996 Pocket Part

1995 Legislation

The 1995 amendment deleted former subsec. (f) and

redesignated subsecs. (g) through (i) as subsecs. (f) through

(h), respectively.

Sections 74(a) to (c) and 75 of the 1995 amendatory act

provides:

"See. 74. (a) The change in law made by this Act does not

affect the collection or the enforcement of the payment of

taxes imposed before the effective date of this Act, and the

law in effect before the effective date of this Act is

continued in effect for purposes of the liability for and

collection of those taxes. This subsection does not apply to

the change to Section 201.201, Tax Code, as amended by

this Act, for taxes made due by that section in the second

month after the effective date of that section.

"(b) The change in law made to Chapter 159, Tax Code, by

this Act applies only to a violation of the penal law of this

state that occurs on or after the effective date of this Act. A

violation of the penal law of this state occurs on or after the

effective date of this Act if any element of the violation

occurs on or after that date.

"(c) A violation of the penal law of this state that occurs

before the effective date of this Act is governed by the law

in effect at the time the violation occurred, and that law is

continued in effect for that purpose."

"Sec. 75. If legislation is enacted transferring the

responsibilities of the treasurer to the comptroller, the

comptroller shall administer this Act consistent with that

legislation.’

1992 Main Volume

Acts 1991, 72nd Leg., ch. 484, § I added subsec. (b)(3); and —

inserted "possesses" following "when a dealer".

Acts 1991, 72nd Leg., ch. 705, § 21 added subsecs. (f) to (i).

V. T. C. A., Tax Code § 159. 1 01

TX TAX § 159. 101

END OF DOCUMENT

Copr. West 1996 No claim to orig. U.S. govt. works

TX TAX s 159.201 Page 1 V.T.C.A., Tax Code § 159.201

VERNON’S TEXAS STATUTES AND CODES

ANNOTATED

TAX CODE

TITLE 2. STATE TAXATION

SUBTITLE E. SALES, EXCISE, AND USE TAXES

CHAPTER 159. CONTROLLED SUBSTANCES TAX

SUBCHAPT'ER C. CRIMINAL PROVISIONS

Copr. West 1996. All rights reserved.

Current through end of 1995 Reg. Sess.

§ 159.201. Possession of Item if Tax Unpaid

(a) A dealer commits an offense if the dealer possesses a

taxable substance on which the tax imposed by this chapter

has not been paid.

(b) Anoffense under this section is a felony of the third

degree. In addition to the fine provided by law for a felony of

the third degree, a person convicted of an offense under this

section shall be fined an amount equal to the amount of tax

due and unpaid on the taxable substance that is the subject of

the offense.

(c) An indictment for an offense under this section may

be presented within six years from the date of the offense and

not afterward.

10

CREDIT(S) 1992 Main Volume Added by Acts 1989, 71st

Leg., ch. 1152, § 1, eff. Sept. 1, 1989. V. T. C. A., Tax Code

§ 159.201

TX TAX § 159.201

END OF DOCUMENT

Copr. West 1996 No claim to orig. U.S. govt. works

11

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