                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00075-CR


KENDELL SHAWN VANBELLE                                              APPELLANT
A/K/A SHAWN VANBELLE

                                        V.

THE STATE OF TEXAS                                                        STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      Appellant Kendell Shawn Vanbelle a/k/a Shawn Vanbelle appeals his

conviction for possessing with the intent to deliver four hundred grams or more of

methamphetamine. 2      In two issues, appellant contends that the evidence is



      1
         See Tex. R. App. P. 47.4.
      2
         See Tex. Health & Safety Code Ann. §§ 481.102(6), .112(a), (f) (West
2010).
insufficient to support his conviction and that his sentence is void because the

jury did not assess a fine. We affirm.

                               Background Facts 3

      One early morning in November 2010, Saginaw Police Department (SPD)

Sergeant Ruben Rucker was conducting surveillance on a motel room when he

saw two male subjects, including appellant, leaving the room and walking to a

pasture area. Although Sergeant Rucker could not see the subjects once they

reached the pasture (because a fence line and trees blocked his view), he could

hear them talking. After staying in the pasture for ten to fifteen minutes, the

subjects returned to the motel room. As appellant was walking back to the motel

room, he was carrying a green gym bag. The subjects stayed in the room for a

few minutes and then left again as appellant carried what appeared to be the

same green gym bag that he had brought to the motel room minutes earlier.

      Shortly after the subjects disappeared from Sergeant Rucker’s view, he

heard a loud banging noise coming from the area in the motel’s parking lot where

the subjects had walked. Because of Sergeant Rucker’s concern that he was

hearing a break-in of a car, he called for assistance.

      SPD Officer Derek Garretson arrived and found a van that contained the

two people that Sergeant Rucker had seen entering and leaving the motel room.


      3
       The facts recited in the first part of this section comprise the testimony of
the State’s witnesses. Appellant provided contradicting facts through his
testimony, and we will discuss those facts below.


                                         2
Appellant was on the floorboard in the middle of the van and was attempting to

hide himself with what appeared to be a blanket. The other man was in the front

of the van and was pretending to be asleep. The bag that appellant had carried

to and from the motel was within reach of either man. Upon Officer Garretson’s

request, the men got out of the van.

      When Sergeant Rucker went to the van, appellant gave him “several

accounts of whose van it was.” 4 Sergeant Rucker asked appellant whether he

had been to the motel, and appellant initially denied that he had been there but

later admitted going there and gave Sergeant Rucker several reasons why he

had gone there. Appellant said that the sliding door on the van was broken and

that he had to “beat on it to get in.” Appellant also said that he had keys to the

van and that he did not care if officers searched it.

      Officer Garretson opened the driver’s side door to the van, immediately felt

a burning sensation on his face, and smelled an “acetone[-]based [odor], mixed

with gasoline.”   The odor burned the inside of Officer Garretson’s nose, his

throat, and his skin. Sergeant Rucker also smelled the chemical odor. Sergeant

Rucker was concerned about whether the chemicals were hazardous, so he

called the fire department and told Officer Garretson to back away from the van.

The fire department ventilated the van and found the duffel bag that Sergeant

      4
       According to Sergeant Rucker, appellant initially said that the van
belonged to him, but he later said that it belonged to his girlfriend, who had
driven him there. At the time of appellant’s conflicting statements, Sergeant
Rucker knew that the van was registered to a man who was living in Roanoke.


                                          3
Rucker had seen appellant carrying, a glass jar with a substance in it, coffee

filters, drain cleaner, lighter fluid, a gas can, and a plastic bottle with a pink vomit-

looking substance in it.       Because Sergeant Rucker believed that the van

contained drugs or materials used to manufacture drugs, he called a narcotics

task force for assistance.

      Timothy Wing, a Mansfield police officer who had been assigned to

investigate narcotics offenses as part of the task force since 2004 and had taken

courses on investigating drug labs, arrived at the scene. Officer Wing believed

that items that he saw in the van were being used for a “shake and bake method

of methamphetamine production.” Officer Wing transferred liquid contents of the

glass jar and of the three-liter plastic bottle into chemically resistant evidence

collection jars.   Also, Officer Wing found a coffee filter containing a white

powdery substance that presumptively tested positive for methamphetamine, a

plastic strainer, a funnel, unused “deal baggies,” wire cutters, four lithium

batteries, salt, and some rubber tubing. A forensic chemist analyzed the liquid

and solid substances found in the van and determined that they comprised more

than four hundred grams of methamphetamine.

      A grand jury indicted appellant with possessing methamphetamine while

having the intent to deliver it and, in another count, with simply possessing

methamphetamine. Appellant pled not guilty to both counts. At trial, appellant

testified that the van belonged to friends of his, Will and Lena, who had been

“helping [him] out”; that someone else had driven him to the motel, where he had


                                           4
visited other friends; that Lena had driven the van to the motel to pick him up;

that she had later gone to a bar across the street while he had slept in the van

and had waited for her; and that at the time that the police had approached the

van, Lena was across the street in the bar. Appellant denied that he had carried

the green gym bag to the motel, stated instead that he had possessed and

carried a blue bag containing his clothes, denied that he had ever touched the

items containing methamphetamine, denied that he ever had the keys to the van,

disputed Sergeant Rucker’s testimony that he left the motel shortly before being

discovered in the van, stated that he did not know the source of the loud banging

noise that Sergeant Rucker had heard, and expressed that he only noticed a

smell in the van when Officer Garretson opened a bottle.

      After hearing all of the evidence and arguments from the parties, the jury

convicted appellant of possessing methamphetamine with intent to deliver it. The

jury then listened to more evidence concerning appellant’s punishment and

assessed ninety-nine years’ confinement. The trial court sentenced appellant

accordingly, and he brought this appeal.

                            Evidentiary Sufficiency

      In his first issue, appellant contends that the evidence is insufficient to

support his conviction. Specifically, he argues that because of language in the

jury charge, the State was required to prove that he actually delivered

methamphetamine rather than only possessing methamphetamine with the intent




                                       5
to deliver it. 5   He contends that the “charge did not allow for a finding of

possession with intent to deliver. The jury’s only choice was either delivery or

plain possession.” 6

       The first count of appellant’s indictment alleged that he “INTENTIONALLY

OR KNOWINGLY POSSESS[ED] A CONTROLLED SUBSTANCE, NAMELY:

METHAMPHETAMINE, OF FOUR HUNDRED GRAMS OR MORE, INCLUDING

ANY ADULTERANTS OR DILUTANTS, WITH INTENT TO DELIVER SAID

CONTROLLED SUBSTANCE[.]” In front of the jury, appellant pled not guilty to

this charge. In the State’s opening statement and closing argument, it reminded

the jury that appellant was charged with possessing methamphetamine while

intending to deliver it. The jury charge stated, in part,

             The defendant . . . stands charged by indictment . . . with the
       offense of delivery of a controlled substance . . . .



       5
        We measure the sufficiency of the evidence by the elements of the
offense as defined by the hypothetically correct jury charge for the case, not the
charge actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App.
2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such
a charge is one that accurately sets out the law, is authorized by the indictment,
does not unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried. Byrd, 336
S.W.3d at 246. As explained below, in this case, the hypothetically correct jury
charge and the charge actually given are one and the same; the charge that the
trial court gave accurately described the law, was authorized by the indictment,
did not unnecessarily restrict the State’s theories of liability, and adequately
described the particular offense for which the defendant was tried.
       6
      Appellant concedes that there was “evidence in the record as to
possession.”


                                          6
            A person commits the offense of “delivery of a controlled
      substance” if the person knowingly possesses with intent to deliver a
      controlled substance and the amount of the controlled substance
      possessed is by aggregate weight, including adulterants or dilutants,
      400 grams or more.

            ....

              Now, if you find from the evidence beyond a reasonable doubt
      that . . . the defendant . . . did intentionally or knowingly possess . . .
      methamphetamine . . . with intent to deliver said controlled
      substance then you will find the defendant guilty of the offense of
      delivery of a controlled substance as charged in count one of the
      indictment.

      Appellant contends that because the jury charge stated that the crime at

issue was “delivery of a controlled substance,” the “jury found [him] guilty of

delivery, even though there is absolutely no evidence in the entire record that a

delivery occurred.” We disagree with appellant’s argument that the State was

required to prove that he delivered methamphetamine. The offense supporting

appellant’s conviction is titled “Manufacture or Delivery of Substance in Penalty

Group 1.” Tex. Health & Safety Code Ann. § 481.112. 7 A person commits the

offense of “Manufacture or Delivery” if the person “knowingly manufactures,

delivers, or possesses with intent to deliver a controlled substance listed in

Penalty Group 1.” Id. § 481.112(a) (emphasis added); see Lopez v. State, 108

S.W.3d 293, 297 (Tex. Crim. App. 2003) (explaining that “[u]nder Texas Health &

Safety Code Section 481.112(a), a person commits the offense of . . . delivery


      7
       Methamphetamine is in Penalty Group 1. Tex. Health & Safety Code Ann.
§ 481.102(6).


                                          7
. . . if he ‘knowingly manufactures, delivers, or possesses with intent to deliver’”)

(emphasis added); see also Guerrero v. State, 305 S.W.3d 546, 557 n.18 (Tex.

Crim. App. 2009) (noting that the title of a statute does not limit or expand its

meaning).

      It is clear to us that the jury charge in this case correctly tracked the

indictment and conveyed both the title and substance of section 481.112 by

stating that appellant could be convicted of the offense of “delivery” of a

controlled   substance      by    possessing      while    intending    to     deliver

methamphetamine. 8      See Tex. Health & Safety Code Ann. § 481.112(a).

Further, the application paragraph, which is the “heart and soul” of the jury

charge, 9 correctly instructed the jury to convict appellant if it found beyond a

reasonable doubt that he intentionally or knowingly possessed four hundred or

more grams of methamphetamine with the intent to deliver it. The application

paragraph did not purport to require an actual delivery for a conviction under

section 481.112, and a hypothetically correct jury charge, being authorized by the

indictment and not unnecessarily restricting the State’s theory of liability, would


      8
       In the State’s closing argument, a prosecutor properly told the jury,

             Now, when the Court was reading the Court’s Charge to you,
      some of you may have noticed on the verdict form she said delivery
      of a controlled substance. Don’t let that throw you. That’s a quirk of
      the way the statute is worded. It covers delivery or possession with
      intent to deliver.
      9
       See Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012).


                                         8
not do so either.   In Brackens v. State, applying section 481.112, the Waco

court of appeals rejected an argument similar to the argument made by appellant

in this case, stating,

             Brackens complains that the evidence was legally insufficient
      to support his convictions for Manufacture or Delivery of a Controlled
      Substance because in each case he confessed only to possession
      with intent to deliver cocaine, which comported with the facts alleged
      in the indictment. The State argues that possession with intent to
      deliver is a means of committing the offense of Manufacture or
      Delivery of a Controlled Substance. We agree with the State.

            The Health and Safety Code defines the offense of
      “Manufacture or Delivery of Substance in Penalty Group 1” as
      follows:

                    (a) 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 substance listed in Penalty Group 1.

             . . . Because Brackens confessed to possession with intent to
      deliver, we find the evidence legally sufficient.

Nos. 10-00-00351-CR, 10-00-00352-CR, 2004 WL 444551, at *2 (Tex. App.—

Waco Mar. 10, 2004, no pet.) (mem. op., not designated for publication). We

conclude, as the Brackens court did, that the evidence is sufficient to support

appellant’s conviction for manufacture or delivery of methamphetamine under

section 481.112(a) if, viewing the evidence in the light most favorable to the

verdict, a rational trier of fact could have found the essential elements of the

crime—that     appellant   possessed   more    than   four   hundred     grams   of

methamphetamine while intending to deliver it—beyond a reasonable doubt.




                                        9
See id.; see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

          Appellant contends only that the “record contains no indication of any

delivery of any controlled substance”; he does not expressly challenge the

sufficiency of the evidence to establish that he possessed the methamphetamine

while intending to deliver it, nor does he provide analysis of the evidence

concerning possession with intent to deliver.      Thus, having rejected the only

argument made by appellant in his first issue, we overrule that issue.

                        The Validity of Appellant’s Sentence

          In his second issue, appellant contends that his sentence is void because

the jury did not assess a fine. He argues that section 481.112(f) of the health

and safety code mandates the assessment of a fine under the facts of this case.

See Tex. Health & Safety Code Ann. § 481.112(f) (“An offense under Subsection

(a) is punishable by imprisonment . . . and a fine not to exceed $250,000, if the

amount of the controlled substance to which the offense applies is, by aggregate

weight, including adulterants or dilutants, 400 grams or more.”). Appellant was

not sentenced, however, under section 481.112(f). Instead, the jury found, as

the indictment had alleged, that appellant had been finally convicted of two

previous felony offenses; this finding subjected appellant to an increased

punishment range under section 12.42(d) of the penal code, which states in part

that if




                                          10
      it is shown on the trial of a felony offense other than a state jail
      felony . . . that the defendant has previously been finally convicted of
      two felony offenses, and the second previous felony conviction is for
      an offense that occurred subsequent to the first previous conviction
      having become final, on conviction the defendant shall be punished
      by imprisonment . . . for life, or for any term of not more than 99
      years or less than 25 years.

Tex. Penal Code Ann. § 12.42(d) (West Supp. 2012). 10 Section 12.42(d) does

not authorize the assessment of a fine. See id.; Harris v. State, 903 S.W.2d 514,

515 (Tex. App.—Texarkana 1995, no pet.) (“[T]here is no statutory provision for a

fine as a habitual offender.”); see also Goodwin v. State, 694 S.W.2d 19, 29

(Tex. App.—Corpus Christi 1985, pet. ref’d) (holding that the trial court erred by

assessing a fine under section 12.42(d)); Carey v. State, 677 S.W.2d 821, 823

(Tex. App.—Fort Worth 1984, no pet.) (concluding similarly). Thus, we reject

appellant’s argument that his sentence is void because it does not include a fine,

and we overrule his second issue.




      10
       The foreman of the jury signed his name under a paragraph stating,

             We, the Jury, having found the defendant, Kendell Shawn
      Vanbelle, guilty of delivery of a controlled substance as charged in
      the indictment, do unanimously find the allegations in the habitual
      offender notice are true. We assess his punishment at imprisonment
      for 99 years in the Texas Department of Criminal Justice.

                                        11
                                 Conclusion

      Having overruled both of appellant’s issues, we affirm the trial court’s

judgment.




                                                TERRIE LIVINGSTON
                                                CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DAUPHINOT, J., filed a dissenting opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 9, 2013




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