      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00206-CR
                                      NO. 03-05-00207-CR
                                      NO. 03-05-00208-CR



                                   Larry West, Sr., Appellant

                                                 v.

                                  The State of Texas, Appellee


   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
 NOS. 9040255, 0940256 & 044052, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found Larry West guilty of engaging in a motor fuel tax fraud scheme, evading

or attempting to evade a motor fuel tax, and failing to remit motor fuel tax. See former Tex. Tax

Code Ann. §§ 153.118(a), 153.206, 153.221(a), 153.403, 153.404(a).1 Based on these convictions

and previous convictions for motor fuel tax offenses, the jury assessed a twenty-year prison term and

a $10,000 fine for each offense. West contends that the tax statute under which he was convicted

is unconstitutionally vague, that the district court did not instruct the jury properly on the law of




       1
         The motor fuel tax statutes have been amended and renumbered since the events on which
these convictions are based. See Act of May 30, 2003, 78th Leg., R.S., ch. 199, 2003 Tex. Gen.
Laws 729, 729 (amended and renumbered statutes codified at Tex. Tax. Code Ann. §§ 162.001-.505
(West Supp. 2005)). For convenience, we will refer to the applicable tax statutes as the “former
Code.”
parties, and that the evidence is legally and factually insufficient to support the convictions. We

affirm the judgment.

                West was prosecuted for failure to remit taxes relating to the sale or use of motor

fuels. West operated a business that delivered “fuel” to certain convenience stores. Tax was due on

the “first sale or use” of gasoline or diesel. See former Code §§ 153.101, 153.201. Testimony

established that, in the normal course of the motor fuel supply business, distributors delivering motor

fuel to underground tanks of convenience stores would collect the sale or use taxes upon delivering

to the store.

                West admits that he did not collect or remit taxes on his deliveries of petroleum

products to convenience stores by his company, East Houston Used Oil. He also admits he did not

have a distributor’s or supplier’s permit. However, West denies that he was required to have a

permit or to collect and remit taxes because he did not sell the products under taxable circumstances.

Other witnesses testified that persons familiar with the industry would know that these products were

taxable as sold by West. Thus, the pivotal factual issue is whether West knew he was evading or

intended to evade the collection and remittance of valid motor fuel taxes.

                West had eighteen years’ experience in the fuel-supply industry. He formed East

Houston after his release from prison for prior motor fuel tax offenses. The company purchased the

remnants of petroleum products pumped from barges after the bulk of the cargo was delivered to its

owner. The products included benzene, toluene, xylene, BTX, petroleum blendstocks, and transmix.

Some of the products were gasoline additives that would burn in an automobile engine, but might

damage an engine if used in too great a concentration.



                                                  2
               For several weeks in the latter part of 2003, law enforcement officers followed East

Houston’s tanker truck as it delivered products between Houston and Corpus Christi. The deliveries

were often made at night. West or his drivers routinely loaded products from barge strippers into

their tanker truck, drove directly to convenience stores, and pumped the products into the

underground fuel tanks—sometimes while customers were buying fuel at adjacent pumps. At one

store, West put bags on pumps after delivering the product. Harris County Constable Larry Mitchell

testified that the bagging was a one-time event caused by the store clerk’s assertion that West

delivered the product to the wrong tank.

               West’s suppliers testified that the products purchased by West should not have gone

directly to convenience store fuel tanks because of dangers to consumers’ vehicle engines and

concerns about taxation issues. Russell Allen, the owner of West’s supplier K-Solv, testified that

he had not heard of his customers putting his product directly into gas station storage tanks and that

his product would be taxable upon entry into those tanks. Longtime K-Solv employee Gary

Weatherly testified that K-Solv’s products might be blended into gasoline and create a product that

burned in a car engine, but that the blended product should be tested to determine whether it was safe

for the vehicle. Michael Morris, assistant manager of Kirby Inland Marine’s Corpus Christi terminal,

testified that he would not sell the products in question to someone who he knew planned to sell the

product to a convenience store because of taxes and “different legalities on selling gas.” Thomas

Roy Gates, owner of Bolivar Barge Cleaning Service, Inc., testified that selling his product to a

convenience store would be illegal because it was not refined gasoline and taxes had not been paid.




                                                  3
Gates also opined that it would not be illegal for West to sell the product to a third party and follow

the third party’s instruction to deliver the product to a convenience store.

                Kirk Davenport of the Comptroller’s tax policy division testified the only purpose of

convenience store fuel tanks is to store fuel for sale to the public, although Martin Cano, assistant

chief of the Comptroller’s criminal investigation division, testified that motor fuel theoretically could

be removed from the underground tanks without a sale at the pump. Cano testified that the

Comptroller believed that putting the product into the gasoline supply tanks constituted blending

and, under these circumstances, a “sale” of gasoline.

                West testified that he did not represent that the product was gasoline. Undisputed

evidence showed that the placards on West’s delivery trucks indicated that the trucks contained

additives, not motor fuel. West testified that he told convenience store owner Salim Dossani that

the product was “petroleum distillates” and not gasoline. West claims that Dossani signed a

statement acknowledging that the products were not refined gasoline, but no such certificate is in

evidence. West claims that the certificate was among his documents seized by the State, but cannot

be located. There was no testimony from any buyers or recipients regarding either what West told

them about his products or whether they understood the numeric codes on placards on fuel tankers.

                West delivered his product to gasoline storage tanks at convenience stores at the

buyers’ direction, and said he was selling it, not to the stores, but to a sort of parent company. He

testified that he did not know if the recipients were storing the product for later removal, blending

it in the tanks with motor fuel, testing it, or doing something else. He believed that the recipient’s

use of the product was not his business once he delivered it where requested.



                                                   4
               A driver for West, Willard Lyons, testified that he believed he was delivering “gas”

that was “upgrading the super.” He said that the liquid he delivered smelled like gasoline. He

testified that he overheard West say, however, that he did not want to put the product into his own

vehicle. Lyons testified that Kirby supplied the only paperwork involved in any of the transactions

in which he participated. Lyons said he believed both that his deliveries were taxable and that West

was taking care of those payments. Lyons pleaded guilty to conspiracy to evade motor fuel taxes in

a prosecution for his role in these events and was hoping for probation.

               Evidence showed that East Houston usually received either cash or money orders for

its products. Darrell Brown, a passenger during some of the deliveries, testified that he usually did

not see any payment made upon delivery. However, Brown also testified that he once saw driver

Nery Chavez counting at least $8,000 in cash on a pinball machine with the store clerk. There was

evidence that some of the convenience stores issued money orders payable to a company owned by

Dossani to pay for the products. Sharon Maslon, a certified public accountant and senior forensic

analyst for the Travis County District Attorney’s office, testified that East Houston paid some

$804,000—more than $663,000 of which was in cash—to K-Solv alone between June 2001 and

December 2002. East Houston also bought products from other companies. By contrast, Maslon

found less than $245,000 worth of deposits to East Houston’s bank accounts, although she eventually

found approximately $809,000 traceable to East Houston’s transactions. She testified that she found

money orders issued at service stations owned by Dossani. There was also evidence that West or

his employees sometimes took the cash they accepted from buyers directly back to their suppliers

to pay them.



                                                 5
               West and his employees did not provide paperwork to the buyers documenting the

sales. West contends that he did not complete such paperwork because the nature of the products

sold made the transactions not taxable because it was not the “sale” of a motor fuel. Witnesses,

including some of West’s employees, testified that the failure to provide paperwork was unusual

because record-keeping is required to show payment of motor fuel taxes. Maslon testified that this

failure to keep records was consistent with avoidance of the creation of a paper trail.

               West was charged with various knowing or intentional failures to follow the statutes

requiring permits, paperwork, and tax collection and remittance. The jury found him guilty on all

counts. In each case, the jury assessed punishment at twenty years in prison and a $10,000 fine.


Constitutional challenge

               West complains that the statutory scheme was unconstitutionally vague. He argues

that the former Code left uncertainty about what was illegal, let the actions of others dictate whether

a person has committed a crime, and gave law enforcement and the judiciary too much discretion

in determining whether a crime was committed.

               We presume that a statute is constitutional. See State v. Wofford, 34 S.W.3d 671, 678

(Tex. App.—Austin 2000, no pet.). It is the challenger’s burden to show that the statute is

unconstitutional. Id.; Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). We must

uphold the statute if a reasonable construction exists that will render it constitutional and carry out

the legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979).

               A law is void for vagueness if its prohibitions are not clearly defined. Grayned v. City

of Rockford, 408 U.S. 104, 108 (1972). A law must give a person of ordinary intelligence a

                                                  6
reasonable opportunity to know what is prohibited. Id. A law also must provide explicit standards

to those who enforce and apply them. Id. A vague law “impermissibly delegates basic policy

matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discriminatory application.” Id. at 108-09. Where no First

Amendment rights are involved, the reviewing court need only determine whether the statute is

impermissibly vague as applied to the challenging party’s specific conduct. Bynum v. State, 767

S.W.2d 769, 773-74 (Tex. Crim. App. 1989). A scienter requirement can overcome problems with

vagueness of the statutory language. See Wisenbaker v. State, 860 S.W.2d 681, 689 (Tex.

App.—Austin 1993, pet. ref’d); see also Village of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 499 (1981).

                The relevant tax code sections criminalized only actions that were intentional or

knowing. See former Code § 153.404(a). The penal code definitions of knowing and intentional

applied to the criminal offenses defined in the tax code. See Tex. Pen. Code Ann. §§ 1.03(b),

6.03(a), (b) (West 2003).2 Offenses incorporating the scienter requirement included those for failure


       2
           The penal code provides as follows:

           (a) A person acts intentionally, or with intent, with respect to the nature of his
               conduct or to a result of his conduct when it is his conscious objective or
               desire to engage in the conduct or cause the result.

           (b) A person acts knowingly, or with knowledge, with respect to the nature of
               his conduct or to circumstances surrounding his conduct when he is aware
               of the nature of his conduct or that the circumstances exist. A person acts
               knowingly, or with knowledge, with respect to a result of his conduct when
               he is aware that his conduct is reasonably certain to cause the result.

Tex. Pen. Code Ann. § 6.03 (West 2003).

                                                   7
to create required records, the creation of false records, failure to retain required records,

transportation of motor fuel without the required shipping documents, failure to remit collected tax

funds, blending products together to evade collecting and remitting taxes, or other attempted evasion

of requirements to collect and remit taxes. See former Code §§ 153.403(23)-(25), (31), (36), (38),

(39). Under those statutes, a person in the supply chain could be held criminally liable only if he

knew or intended tax fraud to occur, not merely when another person in the supply chain failed to

pay taxes. Wisenbaker, 860 S.W.2d at 689.

                Tax was due on the first sale or use of gasoline or diesel in Texas. Former Code

§§ 153.101, 153.201. Gasoline included “any liquid or combination of liquids blended together

offered for sale, sold, or used as the fuel for a gasoline-powered engine. The term includes blending

agents, but excludes diesel fuel and liquefied gas.” Id. § 153.001(10). Diesel fuel was defined as

kerosene, another liquid, or a combination of liquids blended together that is suitable for or used for

the propulsion of diesel-powered motor vehicles. Id. § 153.001(5). Motor fuel included gasoline,

diesel, and other substances “offered for sale, sold, or used as propellants of a motor vehicle.” Id.

§ 153.001(19). A person liable for payment of motor fuel taxes was required to file reports and remit

taxes by the 25th of each month. Id. § 153.118(a).

                West contends that the statutory scheme was vague in the definitions of the key terms

“blending” and “first sale or use” and that the statutes combined to create a vague scheme. Blending

was defined as “the mixing together of one or more products with other products to produce a

product that is offered for sale, sold, or used as a motor fuel.” Id. § 153.001(29). The statute defined

sale as a “transfer of title, exchange, or barter.” Id. § 153.001(24). The code provided that



                                                   8
“[g]asoline is deemed to be used when it is delivered into a fuel supply tank.” Id. § 153.105(b)

(emphasis added). Also, a “user” was defined as “a person who owns or operates a motor vehicle

having fuel supply tanks into which gasoline or diesel fuel is delivered.” Id. § 153.001(27).

               West asserts that, under these statutes, the determination of when the tax became due

depended on the actions or inactions of the seller and/or the subjective belief of the buyer because

a substance was defined as a motor fuel only when offered for sale, sold, or used as a motor fuel. He

asserts that the taxability of a transaction should not hinge on the nature of the storage compartment

into which a seller placed a product. West contends that the lack of clarity that permitted such

assertions shows that the statute was subject to arbitrary and capricious application, rendering it

unconstitutionally vague.

               West argues that the legislature’s revision of the definition of “blending” illustrates

the vagueness of the former statute under which he was convicted. The revised definition in the

current statute provides in part that blending is “the mixing of one or more petroleum products with

another product, regardless of the original character of the product blended, if the product obtained

by the blending is capable of use in the generation of power for the propulsion of a motor vehicle.”

Tex. Tax Code Ann. § 162.001(9) (West Supp. 2005). The revision excludes from the definition a

mixing of products that results in a substance that is not capable of use to generate power and

eliminates from the definition the requirement that the blended product be offered for sale, sold, or

used as a motor fuel. Under both the previous and amended versions, the same theory of taxability

exists in this case: West’s product, when delivered into the underground tanks, blended with and




                                                  9
became gasoline and was offered for sale and sold to consumers for use in their cars. We are not

persuaded that these changes demonstrate any vagueness in the former Code that requires reversal.

                West also argues that the inclusion in the former Code of the “offered for sale, sold,

or used as a motor fuel” language unfairly put his fate in the hands of others, permitting buyers’

conduct to convert a legal sale into a crime and granting prosecutors too much discretion. He cites

the testimony of Cano, the State’s tax code expert, for both propositions.              In response to

hypotheticals, Cano testified that a person would not commit a crime by purchasing toluene, by

selling it if he told the buyer that the product is not gasoline, or by selling it if his buyer then sold

it to another person to blend illegally as gasoline. Cano testified, however, that West violated the

law by delivering the substances into a gas station’s underground tank because the underground tank

was attached to pumps dispensing gasoline to consumers. West argues that this shows that his

innocent delivery of a liquid into a tank was made criminal by the buyer’s sale of the substance to

the public and by the prosecutor’s decision deeming that delivery of a non-motor fuel to be a

blending of gasoline.

                The scienter requirement defeats West’s complaints that the former Code was

unconstitutionally vague. The former Code defined responsibilities for taxes assessed on certain

motor fuel transactions, and imposed criminal liability only for intentional or knowing acts or

omissions. See former Code § 153.404(a). The relevant acts and omissions include failing to collect

and remit taxes, evading and attempting to evade the motor fuel tax by engaging in a motor fuel

transaction without a required permit, transporting fuel without providing the required shipping

document, and failing to retain the documents required of a distributor and supplier. For these



                                                   10
offenses, the “first sale or use” phrase defines the taxable event, and the definition of blending

provides a way of determining whether a motor fuel is involved. The buyer’s conduct did not

determine the criminality of the seller’s conduct because, to commit a criminal offense, the seller had

to knowingly or intentionally shirk statutory responsibilities. See Wisenbaker, 860 S.W.2d at 689.

               The scienter requirement similarly constrains prosecutorial discretion. Contrary to

West’s argument, the prosecutor’s opinion about the potential uses of an underground storage tank

does not make the delivery of a substance into the tank an offense. The prosecutor’s belief that

substances delivered into an underground tank are blended with and become motor fuel for sale (and

thereby taxable) does not alone justify conviction. To obtain a conviction, the State must prove that

the person delivering the substances did so knowingly or intentionally, thereby violating his statutory

responsibilities regarding record keeping and tax collection with respect to selling a motor fuel.

Former Code § 153.404(a). Thus, the prosecution would have to prove that the defendant knew he

was violating the statute by selling motor fuel. This requirement to prove scienter negates the

possibility that a person could be held criminally liable based simply on the actions of third-party

purchasers.

               The former Code sections under which West was convicted provided adequate notice

of what was required or prohibited, did not permit one person’s legal acts or omissions to be

converted into criminal behavior by another person’s actions, and did not leave too much discretion

with the prosecutor. The former Code sections were not unconstitutionally vague.




                                                  11
Sufficiency of the evidence

               West challenges both the legal and factual sufficiency of the evidence to support his

conviction on five related offenses.

               When determining whether evidence is legally sufficient to support a conviction, we

must view the evidence in the light most favorable to the verdict and determine whether any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

We do not reassess the weight and credibility of the evidence and thereby substitute our judgment

for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

               In a factual sufficiency review, we view all of the evidence in a neutral light, and we

will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and

manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable

doubt could not have been met. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App.

2004). We review the fact-finder’s weighing of the evidence and may disagree with the fact-finder’s

determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). A factual sufficiency

analysis can consider credibility only on those few matters bearing on credibility that can be fully

determined from the appellate record. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

A factual sufficiency review must employ appropriate deference to the fact-finder’s role as the sole

judge of the weight and credibility to be given to witness testimony. Id. at 7.

               West raises three challenges to the sufficiency of the evidence supporting his

convictions. He asserts there was no evidence that the substance he sold was a motor fuel, that he


                                                  12
represented that any product he sold was a motor fuel, or that his purchase or resale of his products

required any kind of permit or payment of taxes. He also contends that there is no evidence that he

received payment for these deliveries. He raises these issues generally against the offenses for which

he was convicted.


03-05-00206-CR: Failure to remit tax

                In this cause, West was charged with failing to collect and remit motor fuel taxes in

October, November, and December 2002. The elements of the offense include that West, while

acting as a distributor or supplier of motor fuel, intentionally or knowingly failed to remit motor fuel

tax funds that he was required to collect and remit. See former Code §§ 153.118(a), 153.206,

153.221(a). These statutes were part of parallel statutory frameworks for the collection of taxes due

on sales of gasoline and diesel.

                West admits that he collected and remitted no taxes on his sales, but denies that he

was required to do so because of the nature of the products he sold and the circumstances of his sale

of those products. He argues that no evidence shows that he sold the products as motor fuel or

represented that he was in the business of selling motor fuel. He testified that he represented his

products as “petroleum distillates” rather than motor fuel. He also contends that there is no evidence

that he ever accepted payment for the products he delivered.

                West testified that he relied on attorney-general letter rulings that he contends show

that his activities were nontaxable because he was not selling finished gasoline. None of these letters

was written by or to West, and two expressly state that their scope is limited to the facts presented

in the letters. One letter concludes that ethanol blended with finished gasoline is taxable, but ethanol

                                                  13
blended with natural gasoline (which includes unfinished gasoline and other substances) would not

be, because “natural gasoline is not subject to the state motor fuels tax as long as the sales invoice

lists the product as natural gasoline.” Another letter lists similar conclusions about the taxation and

reporting requirements with respect to natural gasoline. A third letter states that transmix is not

subject to tax and that a distributor’s permit is not required to trade non-finished gasoline substances

like transmix and blending materials, but a limited sales and use tax permit is required to issue a

resale certificate of blending materials. A fourth letter states that toluene is an unfinished blend

stock and is not subject to motor fuels tax “until it is actual[ly] blended with a finished gasoline

product.” This letter also states that such blending materials are subject only to a limited sales tax

when sold as separate products.

                These letters do not support acquittal. They show that, in specified circumstances,

certain products are not subject to the motor fuel tax. They also indicate that paperwork is often

required to substantiate the nontaxable nature of the transaction. None of the letters addresses the

taxability of blending agents delivered directly into the underground fuel tanks at a convenience

store. The situation most analogous to the facts of this case appears in the fourth letter, which states

that toluene is taxable when blended with finished gasoline.

                West also testified that he presented certificates to Dossani explaining that West’s

product was not gasoline. Those certificates are not in evidence, nor was there any evidence of such

explanations or certificates given to West’s other customers.

                A jury could find beyond a reasonable doubt that West’s sale of his various products

met the definition of a sale of gasoline. Gasoline is a liquid or combination of liquids, including


                                                  14
blending agents, offered for sale, sold, or used as the fuel for a gasoline-powered engine. See former

Code § 153.001(10). West poured his liquids into underground tanks at convenience stores. The

only evidence is that West’s product would have mixed with the gasoline, thereby becoming

gasoline. Although West theorized that his buyers might withdraw the blended product from the

underground tank without selling it to the public, there is no evidence that any such withdrawal

occurred. Instead, Constable Mitchell testified that he saw customers pumping gasoline as West

added his product to the underground tanks. The jury could find from the evidence and reasonable

inferences therefrom that West offered for sale or sold his product as fuel for gasoline-powered

engines, and knew that it was being sold as such to drivers without further blending or inspection.

               West also asserts that no tax was due because he never received payment for any of

the deliveries. However, West’s employee Brown testified he saw a cash payment. Analyst Maslon

testified that she found evidence of $244,302 in deposits to East Houston’s bank accounts. She

traced money orders issued at service stations owned by Dossani. She also listed two companies that

purchased petroleum distillates, transmix, lube oil, or blends as sources of $139,327.87 worth of

deposits for East Houston. Inferences from evidence that West’s behavior was consistent with

avoidance of a paper trail support an inference that he received even more money and tried to

obscure that fact. The evidence in the record and inferences therefrom provided legally and factually

sufficient evidence that West was paid for the product he delivered.

               It is undisputed that West paid no motor fuel taxes on any deliveries during the

relevant period. Legally and factually sufficient evidence supports the jury’s finding that West




                                                 15
intentionally or knowingly sold gasoline during the prescribed months without collecting and

remitting required taxes on those sales.

03-05-00207-CR: Evasion or attempted evasion of motor fuel taxes

               In this cause, the jury was instructed on four different ways it could find that West

evaded or attempted to evade motor fuel taxes. The court asked the jury to find whether West

intentionally or knowingly engaged in a motor fuel transaction without a permit required for

distributors or suppliers, transported motor fuel and failed to deliver a shipping document related to

the shipment of motor fuel, failed to retain documents required of those acting as distributors (id.

§ 153.117(a)) and suppliers (id. § 153.219(a)), or, while acting as a distributor or supplier, failing

to remit motor fuel tax funds that he was required to collect and remit (id. §§ 153.118(a), 153.206,

153.221(a)).

               The jury findings that West sold gasoline for money figure heavily into the resolution

of these assertions. West admits he had no permits, did not prepare or keep any documentation, and

paid no taxes. He relied on his asserted belief that he was not selling gasoline and therefore did not

need any permits, documents, or taxes. As discussed, legally and factually sufficient evidence

support the conclusion that he was selling gasoline. Because he was not selling and delivering it

directly into motor vehicles, he was a distributor. See id. § 153.001(9). As a distributor, he was

required to have a permit, supply and maintain records, and collect and remit motor fuel taxes. See

id. §§ 153.117(a), 153.118(a). He did none of these.

               There was evidence, aside from his years of experience in the industry and generally

imputed knowledge of the law, that West was warned of the need to collect and remit taxes if he

resold the products. Through Pamela Lyons, accountant for K-Solv, the State introduced certificates

                                                 16
signed by West declaring that “the gasoline blendstocks to which this certificate relates will not be

used to produce gasoline” and that “if buyer resells the gasoline blendstocks to which this certificate

relates, buyer will be liable for tax unless buyer obtains a certificate from the purchaser stating that

the gasoline blendstocks will not be used to produce gasoline . . . .” The certificates covered sales

to West during 2001 and 2002. No certificates from West’s buyers are in the record. He asserts that

he obtained such certificates from Dossani and that the State lost or suppressed them after seizing

his records. Even if that assertion is true, there are no certificates from any of his other buyers.

                Legally and factually sufficient evidence supports the conviction in this cause.


03-05-00208-CR: Motor fuel tax fraud scheme

                In this cause, the jury was instructed to determine whether West had engaged in a

motor fuel tax fraud scheme. The jury was asked whether West intentionally or knowingly, and

pursuant to one scheme or continuing course of conduct between December 22, 2000, and December

11, 2002, committed one of three offenses on at least three of eighteen different occasions. The

alleged offenses included engaging in a motor fuel transaction for which he was required to, but did

not, hold a permit as a distributor or supplier, transporting motor fuel to various locations and failing

to deliver a shipping document relating to the shipment of motor fuel, or, while acting as a distributor

or supplier, failing to retain documents required by former Code sections 153.117(a) and 153.219(a).

The jury was instructed to find him guilty if it found at least three instances on which West

committed one the alleged offenses.

                The evidence discussed above is legally and factually sufficient to support a finding

that, on at least three occasions, West sold products as motor fuel as defined by statute and did not

hold required permits, maintain or provide documentation, or collect or remit taxes. The evidence

                                                   17
was likewise legally and factually sufficient to support a finding that he did this pursuant to a scheme

or continuing course of conduct.


Jury charge

                West contends that the trial court erred by failing to apply the law of parties in the

application paragraph of the charge. However, we need not explore the merits of that issue. If the

evidence in a record supports an appellant’s guilt as a principal actor, any error of the trial court in

charging on the law of parties is harmless error. Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim.

App. 1999); Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986). We have concluded that

the evidence is legally and factually sufficient to support finding West guilty of each offense as a

principal. Accordingly, any error in charging on the law of parties is harmless.


Conclusion

                We conclude that West has not shown the former Code to be unconstitutionally

vague, has not shown harmful error in the charging of the jury on the law of parties, and has not

shown the evidence supporting his convictions to be legally or factually insufficient. Accordingly,

we affirm the judgments of conviction.




                                                G. Alan Waldrop, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: August 25, 2006

Do Not Publish


                                                  18
