Delford Bernard Mathews v. The State of Texas--Appeal from Criminal District Court No. 5 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Delford Bernard Mathews

Appellant

Vs. Nos. 11-02-00294-CR, 11-02-00295-CR, & 11-02-00296-CR - Appeals from Dallas County

State of Texas

Appellee

Delford Bernard Mathews waived his right to trial by jury in three related cases,[1] made a judicial confession in each case, and entered guilty pleas and pleas of Atrue@ to all three indictments. The first two indictments charged appellant with the delivery of more than one gram but less than 4 grams of cocaine, and the other indictment charged him with possession Awith intent to deliver@ more than one gram but less than 4 grams of cocaine. All three indictments alleged two prior final felony convictions. There was no plea bargain, and the court ordered a presentence investigation. After that report was prepared, the trial court sentenced appellant to confinement for 25 years.[2] We affirm the convictions.

Hearing on August 16, 2002 (Acceptance of Pleas)

The trial court had a discussion in open court with appellant, appellant=s trial counsel, and the prosecutor to confirm that appellant understood all three indictments, that he realized that he was charged as a habitual offender in all three cases, and that appellant understood that there was no plea bargain agreement. Appellant said that he understood that the range of punishment in each case Awould be not less than 25 years nor more than 99 years or life in the penitentiary@ and that it could include a fine of up to $10,000 in each case. Relevant portions of the hearing on August 16 read as shown:

THE COURT: Sir, it=s my understanding you=ve expressed an intention to enter a plea of guilty to each one of these charges and a plea of true to the enhancement paragraphs to each one of these charges. And you filed papers with the court in each of these cases waiving or giving up certain legal rights that the law allows you; is that correct?

[APPELLANT]: Yes, sir.

THE COURT: Did you sign these papers of your own free will?

[APPELLANT]: Yes, sir.

* * *

THE COURT: Sir, it=s also my understanding, according to these papers, that you have no type of plea bargain agreement with the State in your cases in exchange for your pleas; is that correct?

[APPELLANT]: Yes, sir.

Appellant=s trial counsel told the court that he concurred in his client=s pleas and that he felt that appellant was competent and understood the nature and consequences of his pleas. The trial court then accepted appellant=s pleas of guilty to all three indictments and his pleas of Atrue@ to the enhancement allegations. The court ordered a presentence investigation.

Hearing on September 6, 2002 (Sentencing)

Relevant portions of the reporter=s record of the hearing when the sentences were imposed read as shown:

[PROSECUTOR]: We would ask the Court to take judicial notice of the presentence report prepared in this case.

[DEFENSE COUNSEL]: No objections.

[PROSECUTOR]: State would rest.

THE COURT: The PSI is ordered to be made a part of this record.[3]

[DEFENSE COUNSEL]: Thank you. We will call [appellant].

[After he was sworn by the court, appellant testified in response to questions by his trial counsel.]

Q: And you are pleading guilty because you are guilty and for no other reason; isn=t that true?

A: Yes.

Q: And you are throwing yourself upon the mercy of the court here today in essence and you are asking the Court to consider you for drug treatment; is that why we are here?

A: Yes.

* * *

Q: One thing I want to point out, all three of these offenses that you are in court on today all occurred on the same day, did they not?

A: Yes.

* * *

Q: What is your plea to the Court?

A: To give me some rehab help so I can get off my addiction so I can get back into society.

Appellant=s mother testified in support of his request for getting treatment for his drug problem. After her testimony, appellant=s trial counsel argued for treatment instead of confinement as a habitual felony offender. The prosecutor then closed by arguing that this was Anot a probation case and asking the court to sentence appellant to the penitentiary.

Sole Point of Error

Appellant filed one brief for all three cases, and it contains a single point of error. Appellant argues that TEX. HEALTH & SAFETY CODE ANN. ' 481.115 (Vernon 2003) is Avoid for vagueness and violates due process.@ The point of error is overruled. Section 481.115 is not void for vagueness, and it does not violate due process.

Appellant concedes that Jackson v. State, 807 S.W.2d 387 (Tex.App. - Houston [14th Dist.] 1991, pet=n ref=d), rejected a claim that an earlier version of this statute was Aunconstitutionally vague and that it violated Adue process. At the time of the offense in that case, Section 481.115 provided that it was a felony of the second degree to possess cocaine Aif the amount of the controlled substance possessed is, by aggregate weight, including adulterants and dilutants, less than 28 grams. [4] Former TEX. HEALTH & SAFETY CODE ' 481.115 (1992). The court said in Jackson v. State, supra at 390:

The meaning of the statute...is readily discernible by [people] of common intelligence. Intentional or knowing possession of cocaine in any amount less than 28 grams is a second degree felony.

* * *

Appellant also contends that his due process rights were violated in that there is no reasonable basis to prohibit the possession of an unusable quantity of cocaine.... The government does not violate a party=s substantive due process rights as long as any rational basis exists for the government=s actions.

* * *

The prohibition of possession of even unusable quantities of cocaine reflects the concern of the legislature with drug abuse in our society. The criminalization of the possession of even minute amounts of a dangerous, highly addictive drug bears a reasonable relation to the proper legislative purpose of deterring the distribution and use of such a drug. Regardless of the merits of a Azero tolerance@ policy, TEX. HEALTH AND SAFETY CODE ' 481.115 cannot be deemed to violate due process since it bears a rational relation to a legitimate legislative concern. (Emphasis added)

See also Alvarado v. State, 894 S.W.2d 869, 873 (Tex.App. - El Paso 1995, pet=n ref=d); Jenkins v. State, 870 S.W.2d 626, 631 (Tex.App. - Houston [1st Dist.] 1994, pet=n ref=d), cert. den=d, 516 U.S. 1080 (1996).

In connection with appellant=s argument that the Ainclusion of adulterants and dilutants@ creates a Apotential sliding scale of limitless punishment@ and makes the statute unconstitutionally vague, see Chapman v. United States, 500 U.S. 453, 459-65 (1991). In Chapman, the Court rejected similar arguments involving a federal statute and said:

We think that petitioners= reading of the statute B a reading that makes the penalty turn on the net weight of the drug rather than the gross weight of the carrier and drug together B is not a plausible one. The statute refers to a Amixture or substance containing a detectable amount.@ So long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence.

* * *

The same point can be made about drugs like heroin and cocaine, however, and Congress clearly intended the dilutant, cutting agent, or carrier medium to be included in the weight of those drugs for sentencing purposes.

* * *

We find that Congress had a rational basis for its choice of penalties....By measuring the quantity of the drugs according to the Astreet weight@ of the drugs in the diluted form in which they are sold, rather than according to the net weight of the active component, the statute and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity. That is a rational sentencing scheme. (Emphasis added)

This Court=s Ruling

The judgments of the trial court are affirmed.

BOB DICKENSON

SENIOR JUSTICE

July 17, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, J.,

McCall, J., and Dickenson, S.J.[5]

[1]Cause No. F-O249428-IL, Criminal District Court No. 5 of Dallas County is Cause No. 11-02-00294-CR of this court; Cause No. F-O249429-JL, Criminal District Court No. 5 of Dallas County is Cause No. 11-02-00295-CR of this court; and Cause No. F-O249430-JL, Criminal District Court No. 5 of Dallas County is Cause No. 11-02-00296-CR of this court.

[2]This was the minimum sentence for these offenses. See TEX. PENAL CODE ANN. ' 12.42(d) (Vernon 2003).

[3]That report was not included in the reporter=s record or in any of the clerk=s records which were filed in this court. This irregularity will be disregarded under TEX.R.APP.P. 44.2(b) because it does not affect the sole point of error which has been briefed.

[4]At the time of the offense in the case now before us, Section 481.115 had been amended to provide that it was a felony of the third degree to posssess cocaine Aif the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.@

[5]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.