## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00356

- CR

___________________________

On Appeal from the 432nd District Court Tarrant County, Texas Tri al Court No. 1477262R
Before Gabriel, Kerr, and Bassel, JJ. Memorandum Opinion by Justice Bassel 

### O KEKE 

### K

AMEL 

### O NICK AKA 

### O KEILY 

### K AMEL 

### O NEIL 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. I NTRODUCTION
A jury convicted A ppellant Okeke Kamel Onick aka Okeily Kamel Oneil of three counts of possession of more than four grams but less than 200 grams of a controlled substance with the intent to d eliver and assessed his punishment at forty years’ confinement for each count. See Tex. Health & Safety Code Ann. § 481.112( a ) , (d)

. The trial court rendered a separate judgment for e ach count and sentenced him accordingly with the punishment for each count to run concurrently

. Appellant raises four issues

. We affirm the judgment s as modified

. II. B ACKGROUND 1 In April 2016, the Fort Worth Police Department received a tip that Appel lant was selling drugs from his mother’s house in Fort Worth. After obtaining a search warrant, the FWPD executed the warrant and searched the home. When they entered, Appellant’s mother was the only person there. In a bedroom that was identified as App ellant ’s, the FWPD discovered a mong other things, mail addressed to Appellant. They also discovered a black duffle bag that contained, among other things, plastic bags of cocaine, methamphetamine, and black

- tar heroin , as well as a plastic card with Appel lant’s name on it

.

1 Because the resolution of this appeal does not require more, we set forth a limited recitation of the factual and procedural background. See Tex. R. App. P. 47.1.3

Appellant was indicted for three counts of possession of a controlled
substance

— one count for cocaine, one count for heroin, and one count for methamphetamine

—

with the intent to deliver

. See Tex. Health & Safety Code Ann. § 481.112(a ). At trial, Appellant ’s primary defensive theory was that there was no direct evidence linking him to the black duffle bag and that there was direct testimony linking the black duffle bag to another person . However, a jury convicted Appellant
of all thr ee counts and assessed his punishment at forty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.
III. N O V IOLATION OF D UE P ROCESS C LAUSE OF F OURTEENTH A MENDMENT B ECAUSE THE J URY C HARGE I NCLUDED A LL E SSENTIAL E LEMENTS In his first issue, Appellant argues that the jury charge improperly omitted an essential element of the underlying offense

— namely, the penalty group. To explain,
the section of the h ealth and s afety c ode under which Appellant was charged make s it an offense to possess with intent to deliver “a controlled substance listed in Penalty Group 1.” Id. Appellant argues that this phraseology makes an element of the offense not the possession of one of the controlled substances contained in the list found in the penalty group , but instead the penalty group itself. In other words, Appellant contends the charge should simply inquire whether the defendant possessed
with intent to deliver “a controlled substance listed in P enalty G roup 1.” A nd
A ppellant contends that the Dallas Court of Appeals incorrectly held in Roberson v.
State that the penalty group is not a separate element of an offense under section4

481.112(a) of the health and safety code

. No. 05

- 15

- 0055 0

- CR, 2016 WL 3517937, at *2 (Tex. App.

— D allas June 20, 2016, no pet.) (mem. op., not designated for publication)

. We disagree.
A. Standard of Review We must review “all alleged jury

- charge error .

. . regardless of preservation in
the trial court.” Kirsch v. State , 357 S.W.3d 645, 649 (Tex. C rim. App. 2012). In reviewing a jury charge, we first determine whether error occurred; if not, our analysis
ends. Id. B. Applicable Law

“ The Due Process Clause of the Fourteenth Amendment ‘protects the accused against conviction except upon proof bey ond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” Yates v. Aiken , 484 U.S. 211, 214, 108 S. Ct. 534, 536 (1988) (quoting In re Winship , 397 U.S. 358, 364, 90 S. Ct. 1068, 1072 (1970) )

. Pursuant to the hea lth and safety code, “a person commits an offense if the person knowingly . . . possesses with intent to deliver a controlled substance listed in Penalty Group 1.” Tex. Health & Safety Code Ann. § 481.112(a). Among the controlled substances statutorily l isted in “Penalty Group 1” are heroin, cocaine, and methamphetamine. Id. § 481.102(2), (3)(D), and (6). The refore, the elements of this offense are that the defendant: (1) possessed a controlled substance in the amount charged; (2) intended to deliver t he controlled substance to another; and (3) knew that5

the substance in his possession was a controlled substance. See Roberson , 2016 WL 3517937, at *2; Walker v. State , No. 03

- 14

- 00473

- CR, 2016 WL 2942398, at *2 (Tex. App.

— Austin May 10, 2016, pet. ref ’ d) (mem. op., not designated for publication) ; see also Bahr v. State , 295 S.W.3d 701, 707 (Tex. App.

— Amarillo 2009, pet. ref’d). C. Analysis Here, the trial court instructed the jury, in part, as follows: A person commits an offense if he intentionally o r knowingly possesses a controlled substance. Under our law, cocaine, heroin and methamphetamine are controlled substances

.

“ Possession ” means actual care, custody, control or management
. Possession is a voluntary act if the possessor knowingly obtain s or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.

. . . . COUNT ONE Now, if you find from the evidence beyond a reasonable doubt that in Tarrant County, Texas, on or about the 2 1s t day of April, 2016, the [Appellant] did intentionally or knowingly possess with intent to deliver a controlled substance , namely cocaine , of more than four grams but less than two hundred grams, including any adulterants or dilutants, then y ou will find the defendant guilty as charged in Count One of the indictment.

. . . . COUNT TWO Now, if you find from the evidence beyond a reasonable doubt that in Tarrant County, Texas, on or about the 2l s t day of April, 2016, the [Appellant] did the n and there intentionally or knowingly possess with intent to deliver a controlled substance , namely heroin , of more than four6

grams but less than two hundred grams, including any adulterants or dilutants, then you will find the defendant guilty as charged in Count Two of the indictment.

. . . . COUNT THREE Now, if you find from the evidence beyond a reasonable doubt that in Tarrant County, Texas, on or about the 21st day of April, 2016, the [Appellant] did intentionally or knowingly possess with intent to deliver a controlled substance , namely methamphetamine , of more than four grams but less than two hundred grams, including any adulterants or dilutants, then you will find the defendant guilty as charged in Count Three of the indictment. [Emphasis add ed.] Although we are not bound by Roberson , an unpublished case from the Dallas Court of Appeals , we agree with its reasoning and conclusion that “the penalty group
is not an element of the offense.” 2 2016 WL 3517937, at *2. Because cocaine, heroin,

2 In relying on Roberson , we recognize that Roberson in turn relied on Watson v. State , a case in which a plurality of the court of criminal appeals held in the context of a double

- jeopardy challenge that the Legislature intended to make possession of each individual substance within the same penalty group a separate and distinct offense

. 900 S.W.2d 60, 62 (Tex. Crim. App. 1995) (plurality opinion)

. Thus, possession of multiple Penalty Group 1 substances constitutes separate offenses. Although not cited by either party, our research reveals that in a recent concurring opinion on the denial of rehearing , Justice Newell asserts that because “ it now appears that the Court believes that the specific identity of the control group substance is not a ‘ crucial ’ fact necessary to prove up the offense of possession of a controlled substance [ , ] . . . the State need only prove possession of a substance within a particular penalty group. ” Ex parte Broussard , 517 S.W.3d 814, 824 (Tex. Crim. App. 2017) (Newell, J., concurring) . Thus , according to Justice Newell, “ to the extent Watson provided any authori ty for granting relief, the Court overruled it sub silentio

. . . Watson is no longer good law. ” Id. at 824

– 25

.7

a nd methamphetamine are statutorily

- defined contr olled substances listed in Penalty Group 1

—

indeed, Appellant does not direct us to anywhere in the record to show
that the inclusion of these controlled substances as Penalty Group 1 substances was even an is sue at trial

— there is no fact

- finding role for the jury to determine whether these substances are listed in Penalty Group 1 or not. See id. Thus, because the
individual controlled substance and not the penalty group is the essential element of
the offens e, the jury charge does not con tain error with respect to the lack of definition or instruction that cocaine, heroin, and methamphetamine are “controlled
substance s listed in Penalty Group 1. ” See id. ; cf. Watson , 900 S.W.2d at 62

. Accordingly, we overru le Appellant’s first issue. 3
IV. N O I MPERMISSIBLE C OMMENT ON W EIGHT OF E VIDENCE In his second issue, Appellant complains that the trial judge improperly commented on the weight of the evidence and that said improper comment
constitutes reversible error. Specifically, Appellant complains of a statement from the trial judge , which occurred after a hearing outside of the presence of the jury

.

W hile we acknowledge Justice Newell’s c haracterization of Watson as “no longer good law , ” we are reluctant to ignore a case from the court of criminal appeals until it has been expressly overruled or until Justice Newell’s characterization of Watson is adopted by the cour t
. Thus, we join Roberson in rel ying on Watson

.

3 Having concluded that there is no error, we need not address Appellant’s
ar guments regarding harm. See Kirsch , 357 S.W.3d at 649

.8

The Prosecutor question ed one of the officers who executed the search warrant and found the black duffle bag conta ining the controlled substances. The officer testified that in addition to the controlled substances, he found “fraudulent things.” Anticipating that the Prosecutor was about to try to elicit testimony concerning
“counterfeit” credit cards that would be used to try to link the black duffle bag and its

contents to Appellant , defense objected , and the trial court conducted a hearing outside of the presence of the jury

. When the jurors were brought back into court, the trial judge instructed them to pay att ention to what was coming. The relevant portions of this exchange concluding with the trial judge’s statement that Appellants complains of are as follows : Q. Now, as part of that search of the room, did you search the closet?
A. Yes, sir, I did. Q. Okay. Describe to the jury what you found in the closet.
A. The door was open. You can see the hole in the door, and there was a black duffle bag, nylon zipper bag, large. And I could immediately see plastic bags on top of that. Pulling it out, the drugs, the narcotics started coming out of it. You know, we found quite a bit of narcotics inside the bag, fraud

– fraudulent things. [APPELLANT’S TRIAL COUNSEL] : Objection, Your Honor, may we approach?
THE COURT: You may. (BENCH CONFERENCE PROCEEDIN GS) [APPELLANT’S TRIAL COUNSEL] : Your Honor, I ’ ll object to any reference to any fraudulent

-- fraudulent things or things of any9

other supposed illegal nature. One of the things that they ’ re

-- one of the things that

-- I don ’ t know exactly what he ’ s g oing to say, but I anticipate he ’ s probably going to say there was some counterfeit credit cards or things of that nature. That would be evidence of some other uncharged crime. And I would ask the Court to either admonish the jury to disregard what was s tated or move for a mistrial. (OPEN COURT PROCEEDINGS)
THE COURT: Members of the jury, we ’ re going to take a brief recess. And when I say brief, what about five after 4:00. And then when we come back, I ’ m not going to keep you real late today, so we ’ l l leave at a normal time. But you will be in recess for 15 minutes, and when you come back, we ’ ll be ready to go. (Jury not present)

. . . . (Recess from 3:55 p.m. to 4:07 p.m.) (Open court, Defendant and jury present)
THE COURT: Thank you. Please b e seated. And, Officer, you ’ re still under oath. Ladies and gentlemen of the jury, I

– I ’ m going to ask you to disregard the testimony previously given about a card that

-- there were pictures concerning that. But the State is going to re

- question him regarding that, so pay attention to what ’ s coming

. [Emphasis added.] A. Applicable Law
Article 38.05 of the c ode of c riminal p rocedure prohibits the trial judge from commenting on the weight of the evidence in criminal proceedings or otherwise divulgi ng to the jury his opinion of the case:10

In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case

. Tex. Code Crim. Proc. Ann. art. 38.05; Proenza v. State , 541 S.W.3d 786, 791 ( Tex. Crim. App. 2017)

. “ In carrying out its duties in ruling upon [a defendant’s] objection, a trial court must not embellish the ruling with an unwarranted comment. ” Bachus v.
State , 803 S.W.2d 402, 405 (Tex. App.

— Dallas 1991, pet. ref

’ d)

. A trial judg e improperly comments on the weight of the evidence if he makes a statement that implies approval of the State’s argument, indicates disbelief in the defense’s position, or diminishes the credibility of the defense’s approach to the case. Simon v. State , 203 S.W.3d 581, 590 (Tex. App.

— Houston [14th Dist.] 2006, no pet.)

. B . Analysis After reviewing the statement Appellant complains of, we conclude that it was not an impermissible comment on the weight of the evidence or an expression of the trial judge’s opinion of the case. Rather, we agree with the State that the trial judge’s statement to “pay attention to what’s coming” was simply to refocus the jur ors and prompt them to resume paying attention after returning from a recess toward the end of the day

. And, i n the context of th e entire trial, the comment was insignificant. See Proenza , 541 S.W.3d at 800. Appellant argues that the entire case turn ed on whether the black duffle bag found in the room belonged to him or a different person. Appellant con tended that11

although some items found in the bag had his name on them, those items had been taken without his knowledge. However, Appellant cites no authority and provides no
argument to support that the trial judge’s comment helped the State’s case or
pr ejudiced Appellant’s case

— t he trial judge made no statement or indication that he
believed the officer’s testimony proved that Appellant owned the black duffle bag or that the credit card with Appellant’s name inside of the duffle bag proved that the bag

a nd its contents belonged to Appellant

. See Singleton v. State , 91 S.W.3d 342, 352 (Tex. App.

— Texarkana 2002, no pet.) ( holding no error for improper judicial comment on weight of evidence when none of the remarks was “ calculated to convey the court ’ s opin ion of the case to the jury, and none of them had an effect on the presumption of innocence in the presence of the jury ”). Moreover, the evidence concerning the credit cards and identifying items in the black duffle bag were also offered by Appellant’s tri al counsel and were admitted into
evidence during Appellant’s case in chief. Therefore, the trial court’s statement to “pay attention” to the officer’s testimony concerning the items found in the black duffle bag was arguabl y reinforced by Appellant’s tri al strategy. Because we conclude that the trial judge ’s comment did not violate article
38.05 , we overrule Appellant’s second issue.12 V. M ODIFY J UDGMENT S In his third issue, Appellant contends that the judgment s erroneously provide
that he was convi cted of violating section 481.112(d) of the health and safety code, when he was actually convicted of violating section 481.112(a). 4
The record before us makes it clear A ppellant was convicted for the offense of possession with intent to deliver a control led substance under section 481.112(a), and because the amount of the controlled substance was more than four grams but less than 200 grams, the offense is accurately classified as a felony of the first degree under subsection (d). Accordingly, we modify the trial court’s written judgment s of
conviction under “Statute for Offense,” so that the judgment s reflect “481.112(a), (d)
HSC ” rather than “ 481.112(d ) HSC , ” and we overrule Appellant’s third issue as moot.
See Tex. R. App. 43.2(b) ; Tex. Health & Safet y Code Ann. § 481.112(a) , (d)

.

VI. R ELEASE OF J URORS ’ P ERSONAL I NFORMATION
In his fourth and final issue, Appellant contends that the trial court abused its
discretion in allowing the State access to the jurors’ personal information and asks us

to vaca te the order granting said access

.

4 Section 481.112(a) provides, “ Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substa nce listed in Penalty Group 1. ” Tex. Health & Safety Code Ann. § 481.112(a). S ection 481.112(d) states, “ An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggrega te weight, including adulterants or dilutants, four grams or more but less than 200 grams. ” Tex. Health & Safety Code Ann. § 481.112(d).13

Article 35.29 protects personal information about jurors, creating a presumption that such information may not be disclosed absent a showing of good cause by a party in the trial or a bona fide member of the news medi a. See Tex. Code
Crim. Proc. Ann. art. 35.29 ; Romero v. State , 396 S.W.3d 136, 150 (Tex. App.

— Houston [14th Dist.] 2013, pet. ref ’ d)

. Because such personal information may only be disclosed upon a showing of good cause, we review a trial court’s ruling g ranting access to jurors’ personal information under an abuse of discretion standard. See
Romero , 396 S.W.3d at 153 ( concluding no abuse of discretion by not releasing jurors’ personal information because requesting party did not establish good cause). A trial court abuses its discretion when it acts without reference to any guiding rules and principles, or it acts in an arbitrary or capricious manner. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). A trial court does not abuse its disc retion if its ruling is at least within the zone of reasonable disagreement. Id. at 391 ; Taylor v.
State , 461 S.W.3d 223, 230 (Tex. App.

— Houston [1st Dist.] 2015, pet. ref ’ d)

. W e agree with Appellant that the State’s unsworn motion, without any
support ing evidence, in which the State assert ed without specificity that it needed the jurors’ information in order to send out letters regarding “ possible ” post

- trial remedies and associated rights, does not constitute good cause. See Taylor , 461 S.W.3d
at 23 1 (holding no abuse of discretion denying appellant’s request for juror
information cards because requesting the information “ to decide whether there is a basis for filing a motion for new trial is not a showing of good cause ”). Therefore,14

the trial court abused its discretion by signing the order to releas e the jurors’
confidential information. See Hooker v. State , 932 S.W.2d 712, 716 (Tex. App.

— Beaumont 1996, no pet.). But Appellant sets forth no showing of how he has been
harm ed and his substantive rig hts affected by the error

. See Tex. R. App. P. 44.2(b). Indeed, Appellant had already been convicted and his punishment assessed at the time the trial court signed the order. 5 Accordingly, any error is not reversible , and we overrule Appellant’s fourt h
issue.
VII. C ONCLUSION Having overruled all of Appellant’s issues , we affirm the trial court’s judgment s as modified. See Tex. R. App. P. 43.2(b).

/s/ Dabney Bassel Dabney Bassel Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: May 2, 201 9

5 Although not clear from the record or briefing, this issue may b e moot becaus e the order was signed on July 16, 2018, and presumably the jurors’ information has already been released. See Rodriguez v. State , No. 14

- 99

- 00158

- CR, 1999 WL 588877, at *2 (Tex. App.

— Houston [14th Dist.] Aug. 5, 1999, no pet.) (per curiam) (not designated for publication) (explaining when inte rvening events have rendered an issue moot , an appellate court can offer only an impermissible advisory opinion ).