Joshua David Stevens v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00235-CR

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JOSHUA DAVID STEVENS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31,001-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Joshua David Stevens appeals his conviction for delivery of a controlled substance, namely methamphetamine. On December 20, 2004, Stevens was placed on deferred adjudication for ten years. Stevens waived the appeal. On June 17, 2005, the State filed an application for the adjudication of guilt, alleging Stevens failed to report, failed to pay various fees, failed to perform community service, and used controlled substances, specifically marihuana and methamphetamine. The trial court adjudicated guilt and sentenced Stevens to twenty-five years' imprisonment. On appeal, Stevens raises two issues: that the indictment was insufficient to confer jurisdiction to the trial court and that he received ineffective assistance of counsel. We affirm.

Before this Court can address the merits of Stevens' arguments, we must first determine if we have jurisdiction over this appeal. The United States Constitution does not guarantee a criminal defendant the right to appeal a conviction. McKane v. Durston, 153 U.S. 684, 687 (1894). Nor does the Texas Constitution provide such a right. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Instead, a defendant's right to appeal a criminal conviction in Texas "is only as provided by the legislature." Id. As it relates to the case now before us, the Texas Legislature has expressly stated that a defendant may not appeal a trial court's decision to proceed to an adjudication of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2005); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Cooper v. State, 2 S.W.3d 500, 502 (Tex. App. Texarkana 1999, pet. ref'd). Further, the general rule is an appellant may raise issues relating to the original plea proceeding placing the defendant on deferred adjudication community supervision only in appeals taken when community supervision was first imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999). The Legislature's prohibition includes all complaints attaching to the trial court's decision to proceed to an adjudication of guilt, except for those challenges to a void judgment, the habeas corpus exception, or issues related to proceedings following the adjudication decision. See, e.g., Nix v. State, 65 S.W.3d 664, 667 68 (Tex. Crim. App. 2001) (recognizing applicability of "void judgment" exception to the deferred adjudication proceedings); Fluellen v. State, 71 S.W.3d 870, 872 (Tex. App. Texarkana 2002, pet. ref'd) (defendant whose guilt was adjudicated may appeal issues relating to sentencing). Thus, Stevens can only appeal a void judgment or issues related to proceedings following the adjudication decision. Because Stevens' ineffective assistance of counsel claims do not relate to a void judgment or issues following the adjudication decision, Stevens cannot raise the issue on direct appeal. See Bahm v. State, 184 S.W.3d 792 (Tex. App. Beaumont 2006, pet. filed); see also Manuel, 994 S.W.2d at 661 62.

In his first point of error, Stevens argues the trial court lacked jurisdiction because the indictment was so defective as to be a nonindictment. A judgment is void in very rare situations, usually due to a lack of jurisdiction. // The indictment in this case provides as follows in pertinent part:

knowingly deliver, by actual transfer, to C. Payne, a controlled substance, namely, a material, compound, mixture, or preparation in an amount of four grams or more but less than two-hundred grams, that contained a quantity of 3,4-methyldioxymethamphetamine . . . .

The indictment clearly alleges that Stevens possessed a controlled substance. // However, the compound alleged 3,4-methyldioxymethamphetamine is not listed in the Texas Controlled Substances Act. See Tex. Health & Safety Code Ann. 481.001 .205 (Vernon 2003 & Supp. 2005). The Texas Health and Safety Code, though, does include a compound entitled 3,4-methylenedioxy methamphetamine. Tex. Health & Safety Code Ann. 481.103. The compound described in the Texas Health and Safety Code contains the letters "ene," which are not included in the indictment.

In support of his argument, Stevens cites Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995), and Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). In Cook, a fractured // Texas Court of Criminal Appeals held that an indictment is not required to charge every element of an offense in order to vest jurisdiction with the trial court, with the proviso that an indictment must charge a person with a criminal offense. Cook, 902 S.W.2d at 477 78. In Duron, the Texas Court of Criminal Appeals explained that the indictment must allege an offense with enough specificity and clarity that the defendant can ascertain the penal statute under which the State intends to prosecute. Duron, 956 S.W.2d at 550 51.

Historically, "fundamental" errors in the indictment could be challenged at any point in the proceedings. See, e.g., Morris v. State, 13 Tex. App. 65, 71 (1882); see also Cook, 902 S.W.2d at 476. In 1985, Texas voters approved an amendment to Section 12 of Article V of the Texas Constitution that a defect of form or substance in an indictment is waived if no objection is made before the date trial commences and that the presentation of an indictment or information vests the trial court with jurisdiction over the case. Tex. Const. art. V, 12; see Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990); see also Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005), arts. 21.01 .31 (Vernon 1989 & Supp. 2005).

However, an instrument which is not an "indictment" under Article V, Section 12 of the Texas Constitution fails to vest the trial court with jurisdiction and can be raised for the first time on appeal. See Duron, 956 S.W.2d at 555; Cook, 902 S.W.2d at 479 80. "[T]o comprise an indictment within the definition provided by the constitution, an instrument must charge: (1) a person; (2) with the commission of an offense." Cook, 902 S.W.2d at 476. "[A] written instrument is an indictment or information under the Constitution if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the indictment is otherwise defective." Duron, 956 S.W.2d at 550 51. The issue presented to this Court is whether the omission of the letters "ene" prevents the charging instrument from describing the crime with enough clarity and specificity to identify the relevant penal statute.

Stevens argues that 3,4-methyldioxymethamphetamine is a mere "jumble of letters that means nothing." The State responds, although the record is not clear whether 3,4-methyldioxymethamphetamine is a salt or isomer of 3,4-methylenedioxy methamphetamine, the compounds are essentially identical and no reasonable person would be confused. Although the indictment in this case misspelled the scientific name of the controlled substance, the indictment provided sufficient notice to the defendant. In general, the mere misspelling of a name does not prevent an indictment from alleging an offense, provided the indictment nevertheless provides the necessary notice of the statutory offense. See Cantu v. State, 944 S.W.2d 669, 671 (Tex. App. Corpus Christi 1997, pet. ref'd) ("heroin" misspelled as "herion"); Ex parte Eckrich, No. 02-04-00133-CR, 2004 Tex. App. LEXIS 5398 (Tex. App. Fort Worth June 17, 2004, no pet.) (mem. op.) (not designated for publication) ("3,4-methylenedioxy methamphetamine" misspelled as "3,4-theylenedioxy methamphetamine"); see also Fitts v. State, 982 S.W.2d 175, 184 (Tex. App. Houston [1st Dist.] 1998, pet. ref'd) ("remuneration" misspelled as "renumeration"); Enriquez v. State, No. 08-02-00005-CR, 2004 Tex. App. LEXIS 6480 (Tex. App. El Paso July 21, 2004, no pet.) (not designated for publication) ("benefit" misspelled as "bebfit"). Given the similarity between the names of the compounds and that the indictment clearly provides Stevens was accused of delivery of a controlled substance, no reasonable person would have been confused that the State was alleging delivery of a controlled substance listed in penalty group 2 of the Texas Controlled Substances Act. Such a conclusion is particularly true when one considers that scientific names appear excessively complex to most laymen. The indictment, even with the misspelled word, accused Stevens of a crime with enough clarity and specificity to identify the penal statute under which the State intended to prosecute. As such, Stevens was not deprived of the screening function of a grand jury. // The typographical error in the spelling of the scientific name of the compound is not sufficient to deprive Stevens notice of the crime of which he was accused or to deprive the trial court of jurisdiction. We overrule Stevens' first point of error.

For the reasons stated, we affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: April 21, 2006

Date Decided: May 2, 2006

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