                                     IN THE
                             TENTH COURT OF APPEALS

                                    No. 10-07-00070-CR

RONALD LAMONT GUYTON,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                              From the 85th District Court
                                  Brazos County, Texas
                             Trial Court No. 0603643-CRF85


                              CONCURRING OPINION


       In my original dissenting note to Guyton v. State, I noted that the Court had failed to

fulfill its duty under Watson v. State to direct the reader’s attention to the objective evidence

in the record that allowed the Court to reach its conclusion and upon which the judgment

was being reversed and remanded. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App.

2006); see also Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (cited in the dissenting

note in Brooks v. State.). Now, in the opinion on petition for discretionary review, the Court

has concluded that the evidence is factually sufficient and affirms the judgment.             The

problem, however, is that Brooks v. State, upon which the Court had previously relied to

reverse this appeal, had petitions for discretionary review filed by both the State and the
Defendant. Those petitions have both already been forwarded to the Court of Criminal

Appeals; so it is too late for us to correct Brooks. Based upon the holding in this case, Brooks v.

State should now be overruled on the merits as having been improperly decided.

          As I also indicated in my dissenting note when this proceeding was initially reversed,

there was absolutely no basis upon which to allow hybrid representation in this appeal.

Guyton v. State, No. 10-07-00070-CR, 2008 Tex. App. LEXIS 8371 (Tex. App.—Waco Nov. 5,

2008, no pet. h.) (Gray, C.J., dissenting note, referencing dissent to letter issued May 27, 2008

requesting the State to respond to pro se brief (“I do not find that the issues raised and the

arguments made by the appellant acting as his own counsel add anything new; other than to

demonstrate that due to the appellant’s conduct that the appellant was making it very

difficult for trial counsel to represent him during the course of the trial.”)). The Court,

nevertheless, allowed the hybrid representation and, following Brooks v. State, a case on

virtually identical facts, determined that the evidence, while legally sufficient, was factually

insufficient. Brooks v. State, No. 10-07-00309-CR, 2008 Tex. App. Lexis 7364 (Tex. App.—Waco

Oct. 1, 2008, pets. filed, see TEX. R. APP. P. 68.7) (not designated for publication).

          In the present case, my original position that there was absolutely no basis upon which

to allow hybrid representation has been fully vindicated by the Court’s new opinion. This is

because a careful reading of the new opinion will show that there is no reason to address the

issues raised in the pro se supplemental brief filed by Guyton, an inmate represented by

appointed counsel, because the Court overrules each and every one of them and, thus, does

not grant any relief thereon. As I said before, there was no compelling need to consider these

issues.     If his very able appointed appellate counsel did not think the issues merited

presentation to the Court, I do not believe there was any issue worthy of the Court’s


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attention. Now that the Court has addressed the issues, it too finds no basis to grant relief on

those issues. Thus, the Court has reviewed the issues raised by the inmate as well as those by

appointed counsel and affirmed the judgment of the trial court. But rather than hold that

Guyton is not entitled to hybrid representation, the Court discusses the merits of each of the

issues raised by the inmate and overrules those issues. I believe that makes the entire

discussion on those issues dicta.

       But if I were going to discuss and overrule the factual insufficiency issue raised by the

inmate, I could not find that the facts in this proceeding are legally distinguishable from

those in Brooks. I would therefore, overrule the erroneous holding in Brooks v. State upon the

basis that it was wrongly decided.       What the Court attempts to identify as a factual

distinction is some testimony that a drug user would not simultaneously use all three types of

drugs found in the possession of Guyton, suggesting that there was no comparable testimony

about the three types of drugs which Brooks possessed. Maj. op. at 8-9. What the Court fails

to explain is why a fact finder could not draw the reasonable inference of possession-with-

intent-to-distribute from the evidence in Brooks. See Hooper v. State, 214 S.W.3d 9, 14-15 (Tex.

Crim. App. 2007). In Brooks, there were more drugs found than a user would normally take

at one time (more than 20 “servings”), there were multiple types of drugs (three types—as in

this case), there was no evidence that Brooks was using or was under the influence of any of

the assorted types of drugs at the time he was arrested in possession, there was no evidence

that Brooks possessed the tools necessary to ingest the drugs himself, and an expert opined

that that this evidence was, in his opinion, consistent with what a dealer would have in his

possession. I think the perfectly logical inference to be drawn from both sets of facts, as the




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Court now does in this appeal, is that the drugs were possessed with the requisite intent to

deliver. Id.

        I believe the Court now reaches the correct result in this appeal. Further, I believe we

should now acknowledge that Brooks v. State was wrongly decided, thus removing any

remaining value as precedent, and allow the Court of Criminal Appeals to deal with it

appropriately.      I withdraw my dissenting note to the previous judgment that reversed

Guyton’s conviction and concur in the current judgment to the extent it affirms the trial

court’s judgment and sentence of Guyton.1



                                                  TOM GRAY
                                                  Chief Justice

Concurring Opinion issued and filed February 6, 2009



1  It is not at all clear under amended Rule 50 if the Court has the authority to do what is being done or if I have
the authority to issue this concurring opinion. See TEX. R. APP. P. 50. Whether it is properly characterized as a
“corrected” or “modified” opinion and judgment, the result is 180 degrees from what the Court previously did.
The prior composition of the Court on the Opinion and judgment reversing the conviction was Justices Vance
and Reyna. I provided a dissenting note. The new composition of the Court on the Memorandum Opinion is
Justices Reyna and Davis. I am providing a concurring opinion and also now join the judgment, but only to the
extent it affirms the trial court’s judgment and sentence.
   Amended Rule 50 provides:
          Within 60 days after a petition for discretionary review is filed with the clerk of the court of
          appeals that delivered the decision, the justices who participated in the decision may, as
          provided by subsection (a), reconsider and correct or modify the court's opinion or judgment.
          Within the same period of time, any of the justices who participated in the decision may issue a
          concurring or dissenting opinion.
          (a)     If the court’s original opinion or judgment is corrected or modified, that opinion or
          judgment is withdrawn and the modified or corrected opinion or judgment is substituted as the
          opinion or judgment of the court. No further opinions may be issued by the court of appeals.
          The original petition for discretionary review is not dismissed by operation of law, unless the
          filing party files a new petition in the court of appeals. In the alternative, the petitioning party
          shall submit to the court of appeals copies of the corrected or modified opinion or judgment as
          an amendment to the original petition.
          (b) Any party may then file with the court of appeals a new petition for discretionary review
          seeking review of the corrected or modified opinion or judgment, including any dissents or
          concurrences, under Rule 68.2.
TEX. R. APP. P. 50.
   Further, I am not sure, and due to time constraints do not have time to resolve, what impact, if any, this Rule
has on the precedential value of the opinion or effect of the judgment issued today.
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