William Roman Slobojan v. The State of Texas--Appeal from County Court at Law No 1 of McLennan County

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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NO. 10-89-254-CR

PATRICIA GLADYS SLOBOJAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From County Court at Law Number Two

McLennan County, Texas

Trial Court # 89-1803-CR2

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NO. 10-89-255-CR

WILLIAM ROMAN SLOBOJAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From County Court at Law Number Two

McLennan County, Texas

Trial Court # 89-1802-CR2

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O P I N I O N

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Undercover officers entered Appellants' business and purchased what were later identified at trial as drug paraphernalia. Appellants were convicted of possessing drug paraphernalia with an intent to deliver, and each received one year in jail, probated, and a $2000 fine. See Tex. Health & Safety Code Ann. 481.125(b) (Vernon 1991). The judgments will be reformed and affirmed.

After the State completed its evidence on guilt-innocence, Appellants asked for an instructed verdict of not guilty on the ground that the State had failed to prove beyond a reasonable doubt that they possessed drug paraphernalia. See id. at 481.183(b). They put on defensive evidence after the motion was denied.

The first two points, which are based on the denial of the motion, are overruled for two reasons. First, Appellants waived any error when they presented defensive evidence. See Kuykendall v State, 609 S.W.2d 791, 794 (Tex. Crim. App. [Panel Op.] 1980); Rodgers v. State, 744 S.W.2d 281, 283 (Tex. App. Fort Worth 1987, pet. ref'd).

Second, their contentions on appeal were never presented to the trial court. The basis of the motion was that the State failed to prove that they possessed drug paraphernalia. However, the contentions on appeal are that the motion should have been granted because (1) the evidence was undisputed that the State's witnesses who purchased the paraphernalia did not intend to use it illegally and (2) the offer to sell the paraphernalia was not corroborated. Under the circumstances, nothing is presented for review. See Pyles v. State, 755 S.W.2d 98, 116 (Tex. Crim. App. 1988) cert. denied, 488 U.S. 986, 109 S. Ct. 543, 102 L. Ed. 2d 573 (1988); Tex. R. App. P. 52(a).

Appellants make two erroneous assumptions under the first and second points. They erroneously assume that the state must prove that a transferee or potential transferee actually intended to use the drug paraphernalia illegally before the transferor or potential transferor can be guilty. They focus on the intent or in this case the lack of illegal intent of the undercover officers, pointing out that the officers admitted they purchased the paraphernalia as evidence. Thus, they argue under point one that a key element of the offense is not supported by any evidence.

A person who knowingly or intentionally possesses drug paraphernalia with an intent to deliver it, knowing that the person who receives or is intended to receive it intends that it be used illegally, is guilty of a crime. Tex. Health & Safety Code Ann. 481.125(b) (Vernon 1991). The statute clearly focuses on the transferor's knowledge and intent rather than the transferee's. Atkins v. Clements, 529 F. Supp. 735, 744 (N.D. Tex. 1981). Appellants' interpretation, which would require that the transferor be a mind reader, is rejected because it defeats legislative intent and the spirit of the statute. See 34 Baylor L. Rev. 247, 252 (1982).

Moreover, Appellants mistakenly assume under point two that they were entitled to an acquittal because the delivery to the officers was not corroborated by any evidence. The statute creates three types of delivery offenses relating to drug paraphernalia: (1) delivery, (2) possession with intent to deliver, and (3) manufacture with intent to deliver. Tex. Health & Safety Code Ann. 481.125(b) (Vernon 1991). Appellants were not charged with delivering drug paraphernalia but of possessing drug paraphernalia with an intent to deliver.

Although the evidentiary rules relating to delivery of drug paraphernalia require corroborating testimony of an offer to sell, such is not required to establish possession with intent to deliver. Id. at 481.183(a). Accordingly, the State's failure to offer corroborating evidence of the delivery to the officers was not fatal. Points one and two are overruled.

The State introduced six items into evidence which its witnesses had purchased from Appellants. Another 138 items which had been seized from Appellants' business were also introduced into evidence after Officer Wayne Hoskins, a drug expert, identified the items as drug paraphernalia. Appellants complain in points three and four that Hoskins's opinion testimony was inadmissible because (1) it related to mixed questions of law and fact and (2) the State produced no evidence that the items were used or intended to be used with illicit drugs. They waived any error when they failed to object to Hoskins's testimony on these grounds. See Tex. R. Crim. Evid. 103(a)(1); Pyles, 755 S.W.2d at 116. Points three and four are overruled.

An item's "physical design characteristics" must be considered in determining whether it is drug paraphernalia. Tex. Health & Safety Code Ann. 481.183(b)(10) (Vernon 1991). Appellants argue under their final two points that, by allowing the fact-finder to consider design characteristics, the statute is unconstitutionally vague and overly broad, which violates their right to due process. These constitutional attacks have already been rejected. See Atkins, 529 F.Supp at 743-45 (holding Texas statute is narrowly drawn, does not violate due process, and is not unconstitutionally vague); Village of Hoffman Est. v. Flipside Hoffman Est., 455 U.S. 489, 102 S. Ct. 1186, 1192-94, 71 L. Ed. 2d 362 (1982) (overbreadth doctrine does not apply to commercial speech and "designed for use" is not unconstitutionally vague). We overrule the fifth and sixth points.

The judgments erroneously recite that Appellants were convicted of the "possession of drug paraphernalia" rather than the "possession with intent to deliver drug paraphernalia." Accordingly, the judgments are reformed to conform with the jury's verdict by deleting the words "possession of drug paraphernalia" and substituting in their place the words "possession with intent to deliver drug paraphernalia." See Tex. R. App. P. 80. As reformed, the judgments are affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Reformed and affirmed

Opinion delivered and filed July 25, 1991

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