                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-19-00201-CR

DEVIN LAMARCUS DIGGS,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the County Court at Law
                                 Hill County, Texas
                              Trial Court No. M0063-19


                                DISSENTING OPINION

        We stand at the confluence of at least three great rivers of precedents; and it is

raining really, really hard.     We are in danger of being swept away by the State’s

confession of error without adequate briefing and analysis. I hope to throw out a life raft,

a dingy in the form of this little ditty.

        The rivers of precedents that converge here are:

     1) Sufficiency of the evidence review under the Jackson standard as developed
        and applied in Malik, Gollihar, Fuller, Cada, and Byrd;
    2) Defective charging instruments and the need to quash them before trial as
       developed in Studer and Jenkins; and

    3) Double Jeopardy as developed in Bailey (and about a thousand others).

The rain that seems to be impairing a proper view of our dangerous predicament is an

alleged variance between the pleading and proof, and the State’s confession of purported

error.

         One comment about the facts is necessary to allow a proper focus on the

precedents. On the face of the information, there is an indication that the charge is for

“POSS CS PG3 < 28G” which is also the offense to which Diggs pled nolo contendere and

for which he was convicted. Remember, this is a misdemeanor, so his plea of nolo

contendere is sufficient evidence of his guilt; independent evidence is not necessary. See

Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986) (“…normally on appeal

from a misdemeanor conviction based on a plea of guilty or nolo contendere there can be

no question of the sufficiency of the evidence.”); see also TEX. CODE CRIM. PROC. art.

27.14(a).

         Whether the specific compound in Penalty Group 3 has to be alleged in the

information is immaterial to my analysis. Whether or not it is a required averment, the

disposition of this issue is controlled by the Court of Criminal Appeals’ opinion in Grant

and should be dispatched with equal brevity as Presiding Judge Keller’s analysis therein:

         This case does not involve a “variance” of any type; it simply involves a
         missing allegation that is required to be in the charging instrument…The
         missing first name is a defect that was waived under Studer when appellant
         failed to object. See Article 1.14(b); Studer v. State, 799 S.W.2d 263 (Tex.
         Crim. App. 1990).


Diggs v. State                                                                          Page 2
Grant v. State, 970 S.W.2d 22, 23 (Tex. Crim. App. 1998). With equally quick dispatch, I

would hold that this case does not involve a variance. At most, the information was

defective; but it was not objected to and, thus, any error was waived. Moreover, a defect

in the information is not the complaint on appeal.

        The complaint on appeal is insufficiency of the evidence which is dependent upon

the unpreserved error of a potential defect in the information. But if I had to address this

as a sufficiency issue under the rubric of Malik, Gollihar, Fuller, Cada, and Byrd, I would

conclude that a hypothetically correct jury charge necessarily relies upon a hypothetically

correct charging instrument. Otherwise, we allow through the back door what we now

categorically refuse to let enter through the front door: unpreserved defects in the

charging instrument. That is precisely what we have done if this information can be

attacked in this case as a variance. There is no question that the “evidence,” the plea, is

sufficient to support the conviction for possession of a controlled substance Penalty

Group 3, less than 28 grams. The evidence is “insufficient” only if you attempt to measure

the sufficiency against the defective charging instrument and limit it to the formal content

of the information and not to all the content on the face of the information. Such an

analysis is directly contrary to Jenkins in which we are directed to examine the charging

instrument “as a whole.” Jenkins v. State, No. PD-0086-18, 2018 Tex. Crim. App. LEXIS

1162, at *6-14 (Crim. App. Dec. 5, 2018) (publish). I would overrule appellant’s first issue.

        Appellant’s second issue attacks the trial court’s overruling of the motion to




Diggs v. State                                                                         Page 3
suppress.1 Appellant argues the road-side search was illegal because it was unnecessarily

delayed. We should dispatch this issue with even greater brevity than the first. The car

was searched with the driver’s consent which was never withdrawn.

        Absent some other argument not made by appellant, such as the scope of the

driver’s consent did not extend to the backpack of the passenger, unrevoked consent to

search ends the suppression analysis. See e.g. Estrada v. State, 30 S.W.3d 599, 605 (Tex.

App.—Austin 2000, pet. ref’d) (“Because the search at the station was a continuation of

the search begun beside the highway, to which appellant gave his voluntary and

unrevoked consent, the question of probable cause [to search] is again irrelevant.”) I

would, therefore, overrule appellant’s second issue.

        Having overruled all of appellant’s issues, I would affirm the trial court’s

judgment. Because the Court reverses the judgment and acquits appellant, I respectfully

dissent.2


                                               TOM GRAY
                                               Chief Justice

Dissenting opinion delivered and filed February 26, 2020




1
 Clearly, the trial court authorized the appeal of this issue. There is some question of whether the
“permission” to appeal extended to appellant’s first issue.

2
 A collateral consequence of this analysis is that the can-of-worms that is the precedent for whether a
subsequent prosecution for possession of the same three Tylenol-with-Codeine pills can be accomplished
would thus, not be opened.

Diggs v. State                                                                                  Page 4
                                      APPENDIX

  CITATIONS OF REFERENCED CASES NOT FULLY CITED IN DISSENTING OPINION


1. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)

2. Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)

3. Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001)

4. Fuller v. State, 73 S.W.3d 250 (Tex. Crim. App. 2002)

5. Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011)

6. Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011)

7. Bailey v. State, 87 S.W.3d 122 (Tex. Crim. App. 2002)
