No. 11-02-00006-CR.
April 3, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from Taylor County.
Before WRIGHT, J., and McCALL, J., and DICKENSON, S.J.
Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.
BOB DICKENSON, Senior Justice
The jury convicted Tina Marie Wright a/k/a Tina Marie Nagel of a first degree felony offense, possession of methamphetamine. After a presentence investigation and a lengthy punishment hearing, the court sentenced appellant to confinement for life. We affirm.
Background Facts
The State's expert testified that the aggregate weight of one of the exhibits possessed by appellant was 305.62 grams and that it contained methamphetamine. Appellant's expert testified that the methamphetamine in that exhibit was only 0.05 percent of its aggregate weight and that the methamphetamine itself weighed less than one gram (0.1528 grams). During the punishment phase of trial, there was testimony about appellant's "bad acts," including those related to the deaths of her two youngest children. The offense for which appellant was convicted occurred on February 24, 2001. The bodies of appellant's six-year-old son and four-year-old daughter had been found in the trunk of her car on August 26, 2000. The pathologist testified that both children died from heat stroke. Points of Error
Appellant presents nine points of error. She argues in Point of Error No. 1 that the evidence was "legally insufficient" because a rational trier of fact could not have found 200 grams or more of methamphetamine if the jury had considered the "proper weights" of the State's evidence. Appellant argues in Point of Error No. 2 that the evidence was "factually insufficient" because the jury's verdict would be "clearly wrong, manifestly unjust, and shocking to the conscience" if the jury had used "the proper method" of determining the weight of the methamphetamine. Appellant argues in Points of Error Nos. 3 and 4 that Section 481.002(5) (the definition of a controlled substance) is unconstitutionally vague and that it violates U.S. CONST. amend. XIV and TEX. CONST. art. I, § 19. Appellant argues in Point of Error No. 5 that there was a fatal variance between the indictment and the proof at trial. Appellant argues in Point of Error No. 6 that the court erred in finding "extraneous offenses" (the injuries and deaths of the two children) to be proven beyond a reasonable doubt and considering them in assessing punishment. Appellant argues in Point of Error No. 7 that she was denied "her Due Process rights" by the State's failure to disclose exculpatory evidence. Appellant argues in Points of Error Nos. 8 and 9 that she suffered "cruel and unusual punishment" in violation of U.S. CONST. amend. VIII. Aggregate Weight of Controlled Substance
The legislature amended Section 481.002(5) to make it clear that the definition of a controlled substance "includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance." The legislature also amended Section 481.115(e) to make it clear that the offense of possessing a controlled substance would be a felony of the first degree if the amount possessed was, "by aggregate weight," 200 grams or more. The State's expert supplied the proof that appellant possessed a controlled substance which had an aggregate weight of more than 200 grams. Points of Error Nos. 1 and 2 are overruled because this proof is both legally and factually sufficient. See, e.g., Jackson v. Virginia, 443 U.S. 307, 318 (1979); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App. 1996). Points of Error Nos. 3 and 4 are overruled because the statute is not unconstitutionally vague under Amendment XIV or Article I, section 19. Point of Error No. 5 is overruled because there was no variance between the indictment and the proof at trial. Points of Error Nos. 8 and 9 are overruled because appellant's punishment was not "cruel and unusual" and did not violate Amendment VIII. Extraneous Crimes or Bad Acts
Appellant argues that the trial court erred in finding that the State had proven beyond a reasonable doubt that appellant had committed the offense of "injury to a child, by reckless omission and by criminal negligence." TEX. CODE CRIM. PRO. ANN. ART. 37.07, § 3(a)(1) (Vernon Supp. 2003) provides in relevant part: Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered . . . as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant . . . and . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant. (Emphasis added) The court could consider evidence of "an extraneous crime or bad act." It did not have to find that appellant committed the offense of "injury to a child." Consequently, the case of Whitmire v. State, 913 S.W.2d 738 (Tex.App.-Eastland 1996), pet'n dism'd, 943 S.W.2d 894 (Tex.Cr.App. 1997), is not on point. Appellant's brief contains her summary of the evidence at trial, and she states in relevant part: This appeal arises from the life sentence imposed upon [appellant], a first offender, for the possession of 200 grams or more but less than 400 grams of methamphetamine (contained within a solution). Analysis of the facts of the case reveals [that appellant's] sentence was not based upon the offense of conviction, but instead was based upon the tragic death of her two youngest children, which had occurred six months prior to the events which formed the basis of the possession charge. Specifically, the evidence at the sentencing hearing conducted before the court without a jury established that on the night of August 25, 2000, [appellant] consumed alcohol and marijuana at her house with a group of friends. The State also tried to establish she consumed methamphetamine, but there was no direct evidence of methamphetamine use. The following day while [appellant] was sleeping, her six year old son, Dylan Nagel, and her four year old daughter, Kelly Boisjolie, managed to get out of [appellant's] locked bedroom. These two young children climbed into the trunk of [appellant's] car and tragically became trapped. The children died as the result of "exogenous hypothermia," the heat inside the trunk of the car. [Appellant's] life spiraled downward after the death of her children. She would not seek refuge from her abusive husband . . . and through her association with him was charged and convicted in the instant case. The evidence at jury trial revealed that six months after her children's death, [appellant] was at home with her husband John Wright on February 24, 2001. When police executed an arrest warrant for John Wright they discovered all of John Wright's methamphetamine manufacturing paraphernalia and residue in the house, and [appellant] was charged with and convicted of possession of some of that residue. It was beyond dispute [appellant] had knowledge of John Wright's activities, and that [appellant] began using methamphetamine extensively after her children's death. (Emphasis added) There was sufficient evidence to show beyond a reasonable doubt that appellant committed the bad acts of placing her children in a hostile environment and of failing to adequately supervise them. It was also beyond dispute, as appellant said in her brief, that appellant knew of her husband's activities (manufacturing methamphetamine) and that she had been using methamphetamine extensively after the death of her children. Point of Error No. 6 is overruled. Disclosure of Exculpatory Evidence
The record does not show that the State failed to disclose any exculpatory evidence. The record does show that one of the State's witnesses, Dusty Maxwell, testified that Lacey Berry had told him that she and appellant had "smoked some speed" on the night before the two children died in the trunk of the car. During the hearing on appellant's motion for new trial, Berry testified that she did not see anybody do any drugs, other than alcohol and marihuana, on the night before the children died. Berry also testified during that hearing that, if she had testified during the trial of appellant's case, Berry would have testified that she thought appellant "went in the bathroom and did meth" that night. When appellant came out of the bathroom, Berry said that appellant "appeared high, skitzy" and like she had been on methamphetamine. Berry said that she would also have testified that she had been at appellant's house when there were "actually drug cooks being . . . conducted in the house," that she knew that "drugs were being sold out of [appellant's] residence," and that she had been present when appellant sold drugs to other people. Berry also testified at the hearing on appellant's motion for new trial that she had never told the district attorney, his assistant district attorney, or his investigator "anything" which she thought was beneficial to appellant. There was no violation of Brady v. Maryland, 373 U.S. 83 (1963). Point of Error No. 7 is overruled. This Court's Ruling
The judgment of the trial court is affirmed.