Carl Anthony Houston, Jr. v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2012-KA-01853-COA

CARL ANTHONY HOUSTON APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/12/2012
TRIAL JUDGE: HON. VERNON R. COTTEN
COURT FROM WHICH APPEALED: LEAKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: EDMUND J. PHILLIPS JR.
ATTORNEY FOR APPELLEE: OFFICE OF ATTORNEY GENERAL
BY: LAURA H. TEDDER
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF
CONTRABAND IN A CORRECTIONAL
FACILITY AND SENTENCED TO FIFTEEN
YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH FIVE YEARS
SUSPENDED
DISPOSITION: AFFIRMED: 11/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., ROBERTS AND CARLTON, JJ.

GRIFFIS, P.J., FOR THE COURT:

¶1. Carl A. Houston Jr. was convicted and sentenced for the possession of contraband in

a correctional facility, pursuant to Mississippi Code Annotated section 47-5-193 (Rev. 2011).

In this appeal, Houston argues that section 47-5-193 is unconstitutionally vague and that the

court erred in sentencing him.

¶2. On March 3, 2012, Houston was incarcerated in Leake County Regional Correctional
Facility. Antwon Pankey, a guard at the facility, searched Houston after he had completed

his visitation with his girlfriend. Pankey felt something hard in the back pocket of Houston’s

pants, and he reached into Houston’s pants pocket and pulled out a Subscriber Information

Module (SIM) card, which is used in cellular phones. A SIM card is contraband under the

facility’s rules. Pankey took the SIM card and Houston to the booking officer, Jimmy Price.

Price testified that Houston was a county inmate, and he had been at the facility since January

2012. Price placed the SIM card in an evidence envelope.

¶3. Houston denied the charges. Houston testified that he did not have a SIM card in his

back pocket and that no one gave him a SIM card.

¶4. Houston was convicted for the possession of contraband while confined in the Leake

County Regional Correctional Facility, in violation of section 47-5-193. It is from this

judgment that Houston now appeals.

ANALYSIS

1. Due Process

¶5. In his first issue, Houston claims that he was denied due process because section 47-5-

193 is unconstitutionally vague. Specifically, Houston contends that the statute is

unconstitutionally vague because the designation of “offender” does not include him. He

argues that he was incarcerated at the facility as an accused and not as an offender.

¶6. The State responds that the statute was not unconstitutionally vague. Instead, the

statute clearly prohibited “any other person or offender” from “possess[ing] . . . [a]

contraband item.” The State argues that the statute included Houston, and thus, he was

properly convicted under section 47-5-193.

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¶7. “Because there is a strong presumption that a legislative enactment is valid, the party

challenging a statute’s constitutionality must prove his case beyond a reasonable doubt.”

Fulgham v. State, 47 So. 3d 698, 701 (¶8) (Miss. 2010). And “[a]ll doubts are resolved in

favor of the validity of the statute.” Id. The United States Supreme Court has ruled that the

test for the void-for-vagueness doctrine “is whether the language conveys sufficiently

definite warnings as to the proscribed conduct when measured by common understanding

and principles.” Id.

¶8. At the time of the offense, Mississippi Code Annotated section 47-5-193 (Rev. 2011)

provided:

It is unlawful for any officer or employee of the department, of any county
sheriff's department, of any private correctional facility in this state in which
offenders are confined or for any other person or offender to possess, furnish,
attempt to furnish, or assist in furnishing to any offender confined in this state
any weapon, deadly weapon, unauthorized electronic device, cell phone, or
any of its components or accessories to include, but not limited to, Subscriber
Information Module (SIM) cards, chargers, etc., or contraband item. It is
unlawful for any person or offender to take, attempt to take, or assist in taking
any weapon, deadly weapon, unauthorized electronic device, cell phone or any
of its components or accessories to include, but not limited to, Subscriber
Information Module (SIM) cards, chargers, etc., or contraband item on
property belonging to the department which is occupied or used by offenders,
except as authorized by law.

¶9. Houston argues that the statute’s designation of “offender” does not apply to him.

Instead, he claims that he was in the facility merely as an “accused” and not an “offender.”

Mississippi Code Annotated section 47-5-4 (Rev. 2011) defines an “offender” as “any person

convicted of a crime or offense under the laws and ordinances of the state and its political

subdivisions.” However, section 47-5-193 makes it unlawful “for any . . . person or

offender” to possess a SIM card in a correctional facility. Accordingly, we find no merit to

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this issue.

2. Sentencing

¶10. Houston next argues that he should have been sentenced as a non-offender under

Mississippi Code Annotated section 47-5-192 (Rev. 2011). Because we hold that Houston

was in violation of Mississippi Code Annotated section 47-5-193, the circuit court did not

err in sentencing him under Mississippi Code Annotated section 47-5-195 (Rev. 2011) rather

than section 47-5-192. Section 47-5-195 provides that “[a]ny person who violates any

provision of Section 47-5-193 . . . shall be guilty of a felony and upon conviction shall be

punished by confinement in the Penitentiary for not less than (3) years nor more than (15)

years[.]” Houston was sentenced to serve fifteen years with five years suspended. We find

no error in his sentence.

¶11. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF CONTRABAND IN A CORRECTIONAL
FACILITY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS
SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
LEAKE COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.

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