Charlie Flenteroy v. State ( 2003 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00624-CR
John Harris, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 9014185, HONORABLE JON N. WISSER, JUDGE PRESIDING
OPINION
Appellant John Harris appeals his conviction for delivery of a controlled substance,
namely cocaine, in an amount of less than one gram in a drug free zone, a third degree felony. See
Tex. Health & Safety Code Ann. '' 481.112(a), (b), 481.134(d)(1) (West Supp. 2003).1 The jury
found appellant guilty of a third degree felony. At the penalty stage of the trial, the trial court found
that the allegations as to four prior felony convictions were true. The court assessed appellant=s
punishment at twenty-five years= imprisonment, the minimum punishment under section 12.45(d).
See Tex. Pen. Code Ann. ' 12.42(d) (West Supp. 2003).
1
The current code section 481.112(a), (b) is cited for convenience. Appellant was
prosecuted under Act of May 29, 1993, 73d Leg., R.S., ch. 900, ' 2.02, 1993 Tex. Gen. Laws 3586,
3705 (Tex. Health & Safety Code ' 481.112(a), (b), since amended).
Points of Error
Appellant advances three points of error. First, appellant contends that his federal and state
constitutional rights of due process were violated and that the trial court committed fundamental error when
the Apunishment issue of the commission of the offense within 1000 feet of a school zone@ was submitted to
the jury at the guilt/innocence stage of the trial. Second, appellant urges that at the guilt/innocence stage of
the trial, his counsel was ineffective for failing to object to the admission of evidence that the offense was
committed within a drug free zone. Third, appellant complains that A[i]n the alternative, section 48.134(d) is
unconstitutionally vague as applied to Harris [appellant].@ We will affirm the conviction.
Facts
Appellant does not challenge the legal or factual sufficiency of the evidence to sustain the
conviction. Appellant rested when the State did at the guilt/innocence stage of the trial. Suffice it to say, the
record shows that Austin Police Officer Joseph Lorett, acting in an undercover capacity, purchased a rock
of cocaine for $20 and there was an actual transfer of the cocaine from appellant to Lorett in downtown
Austin on January 11, 2001. Other officers, both in uniform and mufti, observed the transaction. Appellant
was arrested shortly thereafter and the previously photographed $20 was recovered from appellant. The
chain of custody of the cocaine was established, and Glen Harrison, a chemist with the Austin Police
Department, testified that a chemical analysis of the substance showed it to be cocaine in the amount of less
than one gram. There was undisputed testimony at the guilt/innocence stage of the trial that the offense was
committed within 868 feet of the St. David=s church school and day care center.
Appellant=s Initial Argument
2
At the outset, appellant contends that the question of the location of the delivery of
cocaineCin a drug free zoneCwas a punishment issue to be decided only at the penalty stage of the
bifurcated trial and that the procedure utilized at his trial was all wrong, despite the lack of an objection.
Appellant asserts that his conviction should have been for the primary offense of delivery of cocaine in an
amount of less than one gramCa state jail felonyCunder section 481.112(a), (b) of the Health and Safety
Code and punishable under section 12.35(a). Tex. Pen. Code Ann. ' 12.35(a), (b) (West 1994).
Appellant urges that his conviction for the state jail felony should have remained a state jail felony conviction
throughout the trial and that the punishment therefor could not have been enhanced under section 12.42(d)
of the Penal Code, the habitual criminal statute, because it excludes state jail felonies from its application. A
A >primary offense= is the criminal offense of which the defendant has most recently been convicted.@ 43
George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure ' 38.121 (2d
ed. West 2001) (hereinafter Dix). And conviction, not punishment, determines the proper enhancement.
Fite v. State, 60 S.W.3d 314, 320 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).
Appellant recognizes the allegation that the delivery took place in a drug free zone, but
contends that was a punishment issue for the trial court at the penalty stage of the trial. He argues that the
trial court could have, based on the evidence, enhanced the punishment for his state jail felony conviction to
that of a third degree felony. See Tex. Pen. Code Ann. ' 12.34 (West 1994). Appellant insists that the
punishment for a state jail felony conviction could be enhanced but not the conviction itself. Appellant also
contends that the punishment for the state jail felony conviction, having been enhanced once to the
3
punishment applicable to a third degree felony, could not be enhanced again. This argument would render
impotent the allegations of the four prior convictions with regard to punishment under section 12.42(d).
A Claim of Fundamental Error
Appellant advances the argument that it was fundamental error to have determined the
location of the delivery of the cocaine was in a drug free zone at the guilt/innocence stage of the trial; that
such procedure improperly allowed the State to claim a conviction at the guilt/innocence stage for a third
degree felony rather than a state jail felony, and then to enhance the punishment for a third degree felony
conviction under section 12.42(d), the habitual criminal statute, by virtue of proof of four alleged prior felony
convictions, to twenty-five years= imprisonment.
The State argues that the procedure followed in the instant case was proper. It points out
that no objections were imposed by appellant to the matters now complained of for the first time on appeal,
and no error is preserved for review. See Tex. R. App. 33.1(a). As a general rule, trial counsel must
object to preserve error, even if it is Aincurable@ or Aunconstitutional.@ Cockrell v. State, 933 S.W.2d 73,
89 (Tex. Crim. App. 1996). Without proper preservation, even constitutional error may be waived. See
Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000). If Rule 33.1(a)=s general requirement is
unqualifiedCthat to preserve error matters must be raised in the trial courtCthen appellate courts have no
authority thereunder to consider fundamental error. See 43A Dix ' 42.252.
In passing, appellant cites Rule 103(d) to support his claim of fundamental error. Tex. R.
Evid. 103(d). The rule deals with evidentiary rulings. However, Rule 103(d) states: AIn a criminal case,
nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they
4
were not brought to the attention of the court.@ Tex. R. Evid. 103(d). Whether Rule 103(d) is limited to
evidentiary matters or was designed to preserve preexisting fundamental case law is not clear. See 43A Dix
' 252.
Appellant makes no effort to show that Rule 103(d) is applicable to his particular claim of
fundamental error.2 Moreover, appellant does not mention whether his fundamental error claim is supported
2
In Blue v. State, 41 S.W.3d 129, 131-33 (Tex. Crim. App. 2000), not cited by appellant,
four judges concluded that Rule 103(d) was authority to treat some errors as fundamental. The
plurality held that the trial judge=s comments to the jury panel which Atainted@ the defendant=s
presumption of innocence was fundamental error under Rule 103(d). Judge Keasler concurred in the
result because the comments violated the defendant=s Aabsolute right@ to an impartial judge. Judge
Keasler did not believe that Rule 103(d) was intended to authorize exceptions to Rule 33.1 and did
5
by fundamental error case law. See Marin v. State, 857 S.W.2d 275, 278-79 (Tex. Crim. App. 1993),
overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). For there to
be fundamental error, there must first be error. We shall examine the record to determine if there is error.3
not apply to the error in Blue which was not subject to the rules of evidence. Judge Mansfield also
concurred. The three dissenters agreed that Rule 103(d) had no applicability to the error involved
and error was waived by failure to object to the comments. For a discussion of Blue, see 43A George
E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure ' 62.252 (2d ed. West
2001); Rahago v. State, 75 S.W.3d 561, 563 (Tex. App.CSan Antonio 2002, pet. filed). Because
there is majority opinion in Blue, it is not binding precedent. Pearson v. State, 994 S.W.2d 176, 177
n.3 (Tex. Crim. App. 1999); Rahago, 75 S.W.3d at 563. In Oulare v. State, 76 S.W.3d 231, 234 (Tex.
App.CAmarillo 2002, no pet.) the court found that Athe scope of Blue is far from certain.@
3
In his point of error and in his brief, appellant mentions error in submitting the drug free
zone issue to the jury at the guilt/innocence stage of the trial. This would indicate that his claim of
error was limited to jury charge error. Appellant, however, does not cite article 36.19 dealing with
jury charge error. Tex. Code Crim. Proc. Ann. art. 36.19 (West 1981). Appellant does not apply the
standard for review of jury charge error when there is no objection. See Jimenez v. State, 32 S.W.3d
233, 236 (Tex. Crim. App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim App. 1984)
(op. on reh=g). It is clear that appellant has not briefed any limited claim to jury charge error and
presents nothing for review in this regard. See Tex. R. App. P. 38.1(h). It is obvious that appellant=s
6
complaint is broader and not specifically concerned with jury charge error.
7
Background and Procedure
The prosecution was brought under the provisions of section 481.112(a), (b) at the time of
the offense and section 481.134(d)(1) of the Texas Health and Safety Code as earlier noted. See note one.
The then-applicable section 481.112(a), (b) provided:
(a) Except as authorized by this chapter, a person commits an offense if the person
knowingly or intentionally manufactures, delivers or possesses with intent to
manufacture or deliver a controlled substance listed in Penalty Group 1.
(b) An offense under subsection (a) is a state jail felony if the amount of the controlled
substance to which the offense applies is by aggregate weight, including adulterants or
dilutants, less than one gram.4
Cocaine is listed in Penalty Group 1. See Tex. Health & Safety Code Ann.
' 481.102(3)(D) (West Supp. 2003).
Section 481.134(d)(1) provides in pertinent part:
(d) an offense otherwise punishable under section 481.112(b) . . . is a felony of the
third degree if it is shown in the trial of the offense that the offense was
committed:
(1) in, on, or within 1000 feet of any real property that is owned, rented, or leased
to a school or school board.
(Emphasis added).
4
Act of May 29, 1993, 73d Leg., R.S., ch. 900, ' 2.02, 1993 Tex. Gen. Laws 3586, 3705
(Tex. Health & Safety Code ' 481.112(a), (b), since amended).
8
The only count in the indictment5 provides in pertinent part that appellant on or about
January 11, 2001:
did then and there intentionally and knowingly deliver, by actual and constructive transfer,
to Joseph Lorett, a controlled substance, namely, cocaine, in an amount of less than one
gram, by aggregate weight, including adulterants and dilutants.
And the Grand Jury further presents in and to said Court that John Harris committed
the above offense within 1000 feet of premises owned by St. David=s Episcopal Church, a
school, to wit: 304 East 7th Street, Austin, Travis County, Texas.[6]
There was no motion to set aside the indictment. During the voir dire examination of the
jury panel, both parties discussed the third degree felony alleged. Veniremembers were interrogated about
their views of the drug free zone law provisions. When the indictment alleging the primary offense was read
to the jury, there was no objection. The drug free zone evidence was admitted without objection at the
guilt/innocence stage of the trial. The trial court later charged the jury at the guilt/innocence stage that
5
Enhancement of punishment allegations as to prior felony convictions are not Acounts@ of
an indictment. See Square v. State, 167 S.W.2d 192, 193-94 (Tex. Crim. App. 1942); see also Zaragosa
v. State, 588 S.W.2d 322, 323 n.3 (Tex. Crim. App. 1979); Hathorne v. State, 459 S.W.2d 826, 830
(Tex. Crim. App. 1970); Pitts v. State, 742 S.W.2d 420, 422 n.1 (Tex. App.CDallas 1987, no pet.).
6
The fact that the indictment is set forth does not mean that this is the only way to allege the
third degree felony offense.
9
appellant was Acharged by indictment with the offense of Delivery of a Controlled Substance in a Drug Free
Zone.@ The application paragraphs of the jury instructions provided:
IV.
Now bearing in mind the foregoing instructions, if you believe from the evidence
beyond a reasonable doubt, that on or about the 11th day of January A. D. 2001, in the
County of Travis, and State of Texas, as alleged in the indictment, John Harris intentionally
or knowingly deliver, by actual or constructive transfer, to Joseph Lorett, a controlled
substance, namely, cocaine, in an amount of less than one gram, by aggregate weight,
including any adulterants or dilutants, and said delivery was committed within 1,000 feet of
a premise owned by St. David=s Episcopal Church, a school, to-wit: 304 East 7th Street,
Austin, Travis County, Texas, you will find the defendant guilty of the offense of Delivery of
a Controlled Substance in a Drug Free Zone and so say by your verdict, but if you do not
so believe, or are unable to arrive at a verdict on this charge you should proceed to
consider the charge in the following paragraph.
V.
Now bearing in mind the foregoing instructions, if you believe from the evidence
beyond a reasonable doubt, that on or about the 11th day of January A. D. 2001, in the
County of Travis, and State of Texas, as alleged in the indictment, John Harris intentionally
or knowingly deliver, by actual or constructive transfer, to Joseph Lorett, a controlled
substance, namely, cocaine, in an amount of less than one gram, by aggregate weight,
including any adulterants or dilutants, you will find the defendant guilty of the offense of
Delivery of a Controlled Substance and so say by your verdict, but if you do not so believe,
or have a reasonable doubt thereof, you should say by your verdict not guilty.
It is clear that the trial court submitted the third degree felony offense to the jury in
paragraph IV of the jury charge and the lesser included state jail felony in paragraph V. There was no
objection to the court=s charge. After the jury=s verdict, the penalty stage of the proceedings was conducted
before the trial court. Appellant made no election that the jury assess punishment. See Tex. Code Crim.
Proc. Ann. art. 37.07, ' 2(b) (West Supp. 2003). The formal judgment reflects that appellant was
10
convicted of ADelivery of Cocaine in Drug Free Zone,@ . . . Aa third degree felony.@ A motion for new trial
based on the claim that the jury=s verdict was Acontrary to the law and evidence@ appears to have been
overruled by operation of law.
Interpretation of Statutes
In interpreting a statute, courts look to the literal text of the statute for its meaning and
ordinarily give effect to that plain meaning, unless application of the statute=s plain language would lead to
absurd consequences that the legislature could not possibly have intended, or the plain language is
ambiguous. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); see also State v. Webb, 12
S.W.3d 808, 811 (Tex. Crim. App. 2000).
Section 481.112(a) plainly creates an offense if a person delivers a controlled substance in
Penalty Group 1. Subsection (b) provides that the offense is a state jail felony if the amount of controlled
substance delivered is less than one gram. Section 481.134(d)(1) clearly provides that an offense,
otherwise punishable under section 481.112(b) as a state jail felony, is a felony of the third degree felony if
it is shown on trial that the offense was committed in a drug free zone in, on, or within 1000 feet of a school.
The third degree felony under article 481.134(d)(1) contains an element that the state jail felony lacks under
section 481.112(a), (b). These are two separate and distinct offenses. The plain language of the two
statutes, read individually or together, does not lead to absurd consequences and the language is not
ambiguous. See Boykin, 818 S.W.2d at 785. The plain meaning of the statutes is to be given effect.
Section 481.134(d)(1) provides that the offense is a third degree felony if on trial the evidence shows
delivery in a drug free zone. It does not provide that after conviction for a state jail felony the punishment
11
for that offense will be the same as for a third degree felony if certain conditions are present. The legislature
could have said so in section 481.134(d)(1) if it had so intended. There is nothing to show that the
legislature intended that the drug free zone issue under these statutes was to be decided by submission of an
affirmative findings with the conviction remaining a state jail felony, or that the issue be decided by the same
or a different trier of fact at different or separate proceedings.
If there is any confusion, it arises out of the fact that the statutes are subsections of different
sections of Chapter 481 of the Health and Safety Code. The general provisions of section 481.112 and
481.134 are broad and varied. In Young v. State, 14 S.W.3d 748, 751-53 (Tex. Crim. App. 2000), the
court discussed the evolution of section 481.134 and the 1995 amendments to section 481.134(b). The
court concluded that:
Subsections (c) through (f) remained untouched, however, indicating a continued intent
to treat separately those offenses occurring within the drug-free zones surrounding schools
or school property.
Young, 14 S.W.3d at 753. Section 481.134(d) is not governed by section 481.134(b) which uses the
phrase Apunishment phase.@ Moreover, courts give effect to specific provisions over more general
provisions of a statute. See Tex. Gov=t Code Ann. ' 311.026 (West 1998); Campbell v. State, 49
S.W.3d 874, 876 (Tex. Crim. App. 2001).
Conclusion
We conclude that the indictment charged a third degree felony under sections 481.112(a),
(b) and 481.134(d)(1) and that it was proper to submit to the jury all the elements of the offense at the
12
guilt/innocence stage of the trial including the delivery of cocaine within the specific drug free area. At the
penalty stage of the trial, the jury having found appellant guilty of a third degree felony, the trial court was
free to hear evidence about the four prior felony convictions and to assess the minimum punishment under
section 12.42(d). Tex. Pen. Code Ann. ' 12.42(d) (West Supp. 2003) (habitual offenders). Appellant
was not convicted of a state jail felony; his punishment was not assessed under section 12.35(a) for a state
jail felony; and section 12.42(d) was not rendered inapplicable to the assessment of punishment in the
instant case.
We have examined several cases dealing with delivery of cocaine in a drug free zone, see,
e.g., Lovelady v. State, 65 S.W.2d 810 (Tex. App.CBeaumont 2002, no pet.); White v. State, 59
S.W.3d 368 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d), and we have found none where the issue of
the drug free zone was postponed until the penalty stage of the trial after a conviction for a state jail felony,
as urged by appellant.
Appellant cites Hastings v. State, 20 S.W.3d 786 (Tex. App.CAmarillo 2000, pet. ref=d),
which involved prosecution for delivery of cocaine in a school=s drug free zone under the provisions of
section 481.112(c) (second degree felonyCone gram or more but less than four grams) and section
481.134(c) (punishment issue statute increasing second degree felony punishment by five years and doubling
maximum fine). See Tex. Health & Safety Code Ann. '' 481.112(c), 481.134(c) (West Supp. 2003).
These are different statutes than those involved in the instant case. The Amarillo court noted the phrase Aon
the trial of the offense@ found in section 481.134(c) and determined that the State, in its unfettered
13
discretion, may prove the drug transaction occurred within 1000 feet of a school during either phase of the
trial. Hastings, 20 S.W.3d at 790.
Appellant can find little comfort in Hastings because it can be said that the State exercised
its discretion in the instant case by offering the drug free zone evidence at the guilt/innocence stage of the
trial. Moreover, we do not necessarily agree with the Amarillo court that the legislature intended to allow
the State to opt arbitrarily as to when it will present the evidence. Such practice would undermine the trial
court=s control of the trial. The practice would vary from county to county and even from case to case in
the same county or same court. Hastings does not support appellant=s argument. Further, Hastings
overlooks the fact that all trials are not bifurcated trials.
The procedure suggested by appellant would be applicable only in those cases where there
had been a proper bifurcation of the proceedings. The bifurcation statute [Tex. Code Crim. Proc. Ann. art.
37.07, ' 2(a) (West Supp. 2003)] is only applicable to Apleas of not guilty before a jury.@ Barfield v.
State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001); Morales v. State, 416 S.W.2d 403, 405 (Tex.
Crim. App. 1967); see also Duhart v. State, 668 S.W.2d 384, 386 n.3 (Tex. Crim. App. 1984). The
statutory bifurcation provision would have no application to a trial before the court on a plea of not guilty.
Barfield, 63 S.W.3d at 449-50; Courtney v. State, 424 S.W.2d 440, 443 (Tex. Crim. App. 1968).
Other proceedings on pleas of guilty before the trial court or jury are also unitary trials. See Frame v.
State, 615 S.W.2d 766, 767 n.1 (Tex. Crim. App. 1981); Busaldua v. State, 481 S.W.2d 851, 853
(Tex. Crim. App. 1982); Darden v. State, 430 S.W.2d 494, 495 (Tex. Crim. App. 1968); see generally
43 Dix ' 38.14 (discussing common practice). Statements in cases like Luna, 70 S.W.2d 354, 361 (Tex.
14
App.CCorpus Christi 2002, pet. ref=d) and Hastings, 20 S.W.3d at 790, that all criminal trials are
bifurcated are incorrect and misleading.
The most striking blow to appellant=s contention and the holding in Hastings is Apprendi v.
New Jersey, 530 U.S. 466 (2000), where the United States Supreme Court considered the constitutionality
of the New Jersey hate-crimes statute. That statute allowed a jury to convict a defendant of a second
degree offense based upon a finding, beyond a reasonable doubt, that he unlawfully possessed a prohibited
weapon; after a subsequent separate proceeding, it then allowed a trial judge to impose punishment for a
first degree offense based on the judge=s finding, by a preponderance of the evidence, that the defendant=s
Apurpose@ for unlawfully possessing the weapon was Ato intimidate@ his victim on the basis of a particular
characteristic that the victim possessed.
In holding the New Jersey statute violated due process, the United States Supreme Court
stated:
It is unconstitutional for a legislature to remove from the jury the assessment of facts [other
than the fact of a prior conviction] that increase the prescribed range of penalties to which a
criminal defendant is exposed. It is equally clear that such facts must be established by
proof beyond a reasonable doubt.
Id. at 499; see also In re Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App. 2001) (discussing Apprendi).
Thus, any interpretation of section 481.134(d)(1), as appellant would have it, that would
remove from the jury the assessment of a factCwhether the offense of delivery of cocaine occurred in a drug
free zone within 1000 feet of a schoolCthat would increase the prescribed range of penalties to which
appellant was exposed, would be violative of due process and render the statute unconstitutional. Thus, the
15
trial court was correct in permitting evidence of the occurrence of the offense to be presented at the
guilt/innocence stage of the trial and submitting the offenses to the jury in the court=s charge at that stage of
the proceedings. Appellant=s claims to the contrary are without merit. There was no error in the trial court=s
procedure. Without error, there is no fundamental error. The first point of error is overruled.
Ineffective Assistance of Counsel
In his second point of error, appellant contends that Acounsel was ineffective for failing to
object to the admission of evidence regarding the commission of the offense within a drug free zone at the
guilt-innocence phase of the trial.@ Appellant limits his effective assistance claim to the admission of
evidence.
The Sixth Amendment to the United States Constitution guarantees the right to the
reasonable effective assistance of counsel in state criminal proceedings. McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970); see also Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). The
standard for appellate review of the effective assistance of counsel, either retained or appointed, is the two-
pronged test of Strickland v. Washington, 466 U.S. 668 (1984), adopted in Texas by Hernandez v.
State, 726 S.W.2d 53, 53 (Tex. Crim. App. 1986). Under the Strickland standard, a convicted
defendant must (1) show that his trial counsel=s performance was deficient in that counsel made such serious
errors he was not functioning effectively as counsel, and (2) show that the deficient performance prejudiced
the defendant to such a degree that the defendant was deprived of a fair trial. Strickland, 466 U.S. at 686-
89; Parmer v. State, 38 S.W.3d 661, 665 (Tex. App.CAustin 2000, pet. ref=d); Banks v. State, 819
S.W.2d 676, 681 (Tex. App.CSan Antonio 1991, pet. ref=d). Unless a defendant makes both showings, it
16
cannot be said that the conviction resulted from a breakdown in the adversary process that renders the
results unreliable. Strickland, 466 U.S. at 687; Oestrick v. State, 939 S.W.2d 232, 237 (Tex.
App.CAustin 1997, pet. ref=d). Under Strickland, a defendant has the burden to prove a claim of
ineffective assistance of counsel by a preponderance of evidence. McFarland v. State, 928 S.W.2d
482,500 (Tex. Crim. App. 1996); Parmer, 38 S.W.3d at 665.
The review of a claim of ineffective assistance of counsel is highly deferential. Strickland,
466 U.S. at 687; Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999). Every effort must be
made to eliminate the distorting effect of hindsight. Strickland, 466 U.S. at 689; Kunkle v. State, 852
S.W.2d 499, 502 (Tex. Crim. App. 1993); Scott v. State, 57 S.W.3d 476, 483 (Tex. App.CWaco 2001,
pet. ref=d). A reviewing court must indulge a strong presumption that a trial counsel=s conduct falls within a
wide range of reasonable representation. McFarland, 928 S.W.2d at 500. An ineffectiveness claim
cannot be demonstrated by isolating one portion of counsel=s representation. Parmer, 38 S.W.2d at 666.
Courts assay the totality of counsel=s representation rather than isolated acts or omissions. Wilkerson, 726
S.W.2d at 548; Duvall v. State, 59 S.W.3d 773, 779 (Tex. App.CAustin 2001, pet. ref=d). The
Strickland standard has never been interpreted to mean that the accused is entitled to errorless or perfect
counsel. Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). Moreover, the fact that another
attorney might have pursued a different course of action at trial will not support a finding of ineffectiveness.
Nethary v. State, 29 S.W.3d 178, 188 (Tex. App.CDallas 2000, pet. ref=d); Banks, 819 S.W.2d at 681.
17
In the first point of error, we rejected appellant=s claim that delivery of a controlled
substance less than one gram in a drug free zone was a punishment issue only. It was proper for the
prosecution to have introduced evidence of the drug free zone at the guilt/innocence stage of the trial.
Appellant=s trial counsel cannot be faulted for failing to object to evidence that was properly admissible.
Appellant has not sustained his burden of proof under Strickland. The second point of error is overruled.
Constitutionality of Section 481.134(d)
Appellant claims that A[i]n the alternative, section 481.134(d) is unconstitutionally vague as
applied to Harris [appellant].@ He does not contend the statute is unconstitutional on its face.
In determining a statute=s constitutionality, we begin with a presumption of the statute=s
validity. See State v. Wofford, 34 S.W.2d 671 (Tex. App.CAustin 2000, no pet.); Ex parte Anderson,
902 S.W.2d 695, 698 (Tex. App.CAustin 1995, pet. ref=d); Skillern v. State, 890 S.W.2d 849, 860
(Tex. App.CAustin 1994, pet. ref=d). We presume that the legislature did not act unreasonably or
arbitrarily in enacting the statute and that it had due regard for constitutional requirements. Ex parte
Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). It is the challenger=s burden to show that the
statute is unconstitutional. Anderson, 902 S.W.2d at 698. The statute must be upheld if a reasonable
construction can be ascertained which will render the statute constitutional and carry out the legislative
intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). Constitutional issues will not be
decided upon a broader basis than the record requires. State v. Garcia, 823 S.W.2d 793, 799 (Tex.
App.CSan Antonio 1992, pet. ref=d).
18
Questions about the constitutionality of a statute upon which a defendant=s conviction is
based should be addressed by the reviewing court on direct appeal, even when such issues are raised for
the first time on appeal. See Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987); see also
Holberg v. State, 38 S.W.3d 137, 139 n.7 (Tex. Crim. App. 2000). However, a contention that a statute
is unconstitutional as applied to an accused because of vagueness and uncertainty must be asserted in the
trial court or it is waived. See Curry v. State, 910 S.W.2d 490, 496 n.2 (Tex. Crim. App. 1995); Garcia
v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994); State v. West, 20 S.W.3d 867, 873 (Tex.
App.CDallas 2000, pet. ref=d); Sullivan v. State, 986 S.W.2d 708, 711 (Tex. App.CDallas 1999, no
pet.). In Bader v. State, 15 S.W.3d 599, 603 (Tex. App.CAustin 2000, pet. ref=d), this Court explained
that Rabb was applicable to facial constitutional challenge to a statute on appeal and why the Aas applied@
challenge called for a different rule.
In the instant case, there was no objection in the trial court to the constitutionality of section
481.134(d)(1) Aas applied@ to appellant. Thus, the point of error is not before this Court for review.
The judgment is affirmed.
__________________________________________
John F. Onion, Jr., Justice
Before Justices Kidd, Yeakel and Onion*
Affirmed
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Filed: February 13, 2003
Publish
*
Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.
See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).
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