NO. 07-07-0387-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 30, 2008

______________________________

ANN MARIE ADKINS,

 

Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 54,543-E; HON. RICHARD DAMBOLD, PRESIDING

_______________________________

                                                     Memorandum Opinion

_________________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          Through one issue, Ann Marie Adkins challenges her convictions for engaging in organized criminal activity related to the sale of controlled substances. The convictions, in her view, should be reversed since the indictment failed to state an offense. We overrule the issue and affirm the judgment.

          Adkins argues that the indictment failed to allege offenses since it purported to “charge [her] under Tex. Pen. Code Ann. 71.02(a)(5),” but alleged in count one “possession with intent to deliver,” and in count two “sale of a controlled substance.” Neither offense was “defined in the Texas Penal Code, but rather [is] found in the Controlled Substances Act,” she continues. So, allegedly, “the charging instrument . . . did not charge an ‘offense’ as defined in the . . . Penal Code, and the trial court [lacked] jurisdiction to hear the matter.” Furthermore, her contention is founded upon the opinion in State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007). In Colyandro, the court reiterated that provisions of the Penal Code found other than under titles one, two and three cannot be imported into or made part of an offense created by some other code or statute. Id. at 874-75. There, the State attempted to prosecute Colyandro and others for conspiracy to commit an offense defined in the Texas Election Code. We reject the argument.

          Here, the State indicted Adkins for engaging in organized criminal activities relating to the possession and distribution of drugs. The specific offenses involved were found in §71.02(a)(5) of the Texas Penal Code, not some other code. See Tex. Penal Code Ann. §71.02 (Vernon Supp. 2007) (making criminal the act of unlawfully manufacturing, delivering, dispensing, distributing or possessing a controlled substance with “the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang”). In other words, §71.02(a)(5) creates an offense in and of itself; there is no need to leave the boundaries of the Penal Code to make the offense complete. Nichols v. State, 653 S.W.2d 768, 774 (Tex. Crim. App. 1983) (so holding). And, that circumstance removes the dispute before us from the penumbra of Colyandro wherein the underlying offense was found in the Texas Election Code.

          The judgment of the trial court is affirmed.

 

                                                                           Brian Quinn

                                                                          Chief Justice 

Do not publish.

nsel's failure to object was sound trial strategy. The record before us establishes that trial counsel's performance was deficient.

Having concluded that the first prong of Strickland was satisfied, we must now determine whether counsel's deficient performance was sufficient to undermine confidence in the outcome. Without an opportunity to present punishment evidence appellant was assessed the maximum punishment for a state jail felony. Tex. Pen. Code Ann. § 12.35(a) (Vernon 1994). However, a penalty imposed within the range of punishment established by the Legislature should not be disturbed on appeal. Nunez v. State, 565 S.W.2d 536, 538 (Tex.Cr.App. 1978); Flores v. State, 936 S.W.2d 478, 478-79 (Tex.App.-Eastland 1996, pet. ref'd). Furthermore, the trial court is vested with a great degree of discretion in imposing an appropriate sentence. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Cr.App. 1984). With an undeveloped record before us on direct appeal, appellant cannot satisfy the second prong of Strickland. Although we agree that trial counsel's performance was deficient, we nevertheless overrule appellant's issue.

However, recourse for appellant is still available. Appellant can submit his complaint by application for a post-conviction writ of habeas corpus to develop a record focusing on counsel's conduct. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2002); see Oldham v. State, 977 S.W.2d 354, 363 (Tex.Cr.App. 1998), cert. denied, 525 U.S. 1181, 119 S.Ct. 1121, 143 L.Ed.2d 116 (1999).

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Johnson, J., concurring.

Do not publish.

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

I concur in the result.

Phil Johnson

Justice

Do not publish.

1. Because a claim of ineffective assistance of counsel at the punishment phase after an adjudication of guilt is an issue unrelated to the conviction, appellant's general notice of appeal is sufficient to invoke our jurisdiction. See Vidaurri v. State, 49 S.W.3d 880, 884 (Tex.Cr.App. 2001).

2. The Court of Criminal Appeals has overruled both Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Cr.App. 1980) and Ex parte Cruz, 739 S.W.2d 53 (Tex.Cr.App. 1987) by its decision in Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999).