Adrian L. Walker v. State ( 2011 )


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  •                                   NO. 07-11-00047-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL B
    OCTOBER 17, 2011
    ADRIAN L. WALKER, APPELLANT
    v.
    THE STATE OF TEXAS, APPELLEE
    FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
    NO. 2009-425,747; HONORABLE CECIL G. PURYEAR, JUDGE
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
    MEMORANDUM OPINION
    Appellant, Adrian L. Walker, appeals his conviction for the offense of possession
    of a controlled substance, cocaine, in an amount of one gram or more, but less than
    four grams.1 Appellant’s punishment was enhanced by the allegation that appellant had
    been previously convicted of a felony offense.2 Further, the indictment contained an
    allegation that the offense occurred within a drug-free zone, specifically, the indictment
    alleged that the offense occurred within 1,000 feet of real property owned by a school,
    1
    See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).
    2
    See TEX. PENAL CODE ANN. § 12.42(a)(3) (West 2011).
    namely Bozeman Elementary School. After finding appellant guilty of possession of
    cocaine, the jury answered the special issue “We Do” regarding the allegation that the
    offense was committed in a drug-free zone. Appellant chose to go to the trial court for
    punishment and, after hearing the evidence on punishment, the trial court sentenced
    appellant to confinement in the Institutional Division of the Texas Department of
    Criminal Justice (ID-TDCJ) for a period of ten years. Appellant perfected his appeal and
    presents two issues to this Court, both of which contest the sufficiency of the evidence
    to sustain the conviction due to a material variance between the allegation of the drug-
    free zone in the indictment and the proof presented before the trial court. We will affirm.
    Factual and Procedural Background
    On November 23, 2009, officers Joshua Franco and Ernie Garcia responded to a
    “check subject” call at 3022 East 2nd Place in Lubbock, Texas. Upon arriving at the
    scene, Franco parked his patrol car behind appellant’s vehicle. Franco found appellant
    asleep in a parked vehicle with the motor running and its headlights on.            Franco
    approached the driver’s side of the car and attempted to arouse appellant. Franco
    found the driver’s side door locked and he was unable to wake appellant up. Garcia
    arrived at almost the same instant as Franco and parked his vehicle at the front of the
    subject vehicle. Garcia approached the passenger’s side of the vehicle and found the
    door unlocked and a female subject asleep on the passenger side. Garcia was able to
    wake up the female passenger. The female passenger then reached across appellant
    and unlocked the driver’s side door.
    2
    As Franco woke appellant up, he noticed appellant’s eyes were very bloodshot
    and there was a strong odor of an alcoholic beverage present. Appellant was placed
    under arrest for public intoxication. As appellant was patted down during the arrest,
    Franco discovered a rock of crack cocaine in appellant’s front left pocket. Subsequent
    testing proved that the rock was crack cocaine and weighed 2.16 grams.
    The indictment in appellant’s case contained a punishment enhancement
    paragraph that alleged that the possession of cocaine occurred “within 1,000 feet of real
    property owned by a school, namely, Bozeman Elementary School.”3             During trial,
    Franco testified that the offense occurred approximately 300 feet south of Bozeman
    Elementary School. Skipper Wood, a civil engineer with the City of Lubbock, testified
    that the offense occurred in a drug-free zone because appellant was arrested within
    1,000 feet of Bozeman Elementary School. Wood’s testimony was based upon the use
    of aerial maps and plotting a 1,000 foot radius from Bozeman Elementary School. The
    radius, when plotted, took in the location of appellant’s arrest.
    At the conclusion of the evidence, the trial court presented the court’s charge to
    the jury. The primary offense of possession of a controlled substance, namely, cocaine
    in an amount of more than one gram but less than four grams was submitted to the jury.
    Additionally, a special issue was submitted to the jury that inquired whether the offense
    was committed in a drug-free zone, “to-wit: within 1,000 feet of the premises of a school,
    3
    See TEX. HEALTH & SAFETY CODE ANN. § 481.134(d) (West 2010).
    3
    further described as Bozeman Elementary School.”4 There were no objections lodged
    to the special issue as submitted to the jury. The jury answered “We Do” to the special
    issue.
    The trial court then conducted a punishment hearing. After hearing the evidence
    on the issue of punishment and appellant’s plea of true to the prior felony enhancement
    paragraph, the trial court sentenced appellant to ten years confinement in the ID-TDCJ.
    Appellant brings forth two issues that complain about the sufficiency of the evidence.
    First, appellant contends that the evidence is insufficient to sustain the conviction of
    possession of cocaine within 1,000 feet of real property owned by a school, namely,
    Bozeman Elementary School because of a material variance between the indictment
    and the proof at trial.    Second, appellant contends that because the evidence is
    insufficient to sustain the finding of a drug-free zone, as alleged in the indictment, the
    minimum term of confinement and fine should not have been increased pursuant to
    section 481.134(c)(1)5 of the Texas Health & Safety Code.6            We disagree with
    appellant’s contentions and will affirm the trial court’s judgment.
    4
    There was no objection lodged to this special issue even though the issue
    submitted did not track the language of the indictment’s drug-free zone allegation. See
    TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)(1) (West 2010).
    5
    Appellant’s brief recites the section of the Health and Safety Code at play as
    section 481.139(c)(1), which appears to be a typographical error as the correct section
    cited at other parts of appellant’s brief is section 481.134(c)(1).
    6
    Further reference to the Texas Health & Safety Code will be by reference to Ҥ
    ____” or “section ____.”
    4
    Standard of Review
    In assessing the sufficiency of the evidence, we review all the evidence in the
    light most favorable to the verdict to determine whether any rational trier of fact could
    have found the essential elements of the offense beyond a reasonable doubt. Jackson
    v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979); Brooks v. State,
    
    323 S.W.3d 893
    , 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in
    character, weight, and amount to justify a fact finder in concluding that every element of
    the offense has been proven beyond a reasonable doubt is adequate to support a
    conviction.” 
    Brooks, 323 S.W.3d at 917
    (Cochran, J., concurring). We remain mindful
    that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no
    higher standard of appellate review than the standard mandated by Jackson.”              
    Id. (Cochran, J.
    , concurring).    When reviewing all of the evidence under the Jackson
    standard of review, the ultimate question is whether the jury’s finding of guilt was a
    rational finding.   See 
    id. at 906,
    907 n.26 (discussing Judge Cochran’s dissenting
    opinion in Watson v. State, 
    204 S.W.3d 404
    , 448–50 (Tex.Crim.App. 2006), as outlining
    the proper application of a single evidentiary standard of review). “[T]he reviewing court
    is required to defer to the jury’s credibility and weight determinations because the jury is
    the sole judge of the witnesses’ credibility and the weight to be given their testimony.”
    
    Id. at 899.
    The sufficiency standard set forth in Jackson is measured against a
    hypothetically correct jury charge.      See Malik v. State, 
    953 S.W.2d 234
    , 240
    (Tex.Crim.App. 1997). Such a charge is one that sets forth the law, is authorized by the
    5
    indictment, and does not unnecessarily increase the State’s burden of proof or
    unnecessarily restrict the State’s theories of liability, and adequately describes the
    particular offense for which the defendant was tried. 
    Id. According to
    Young v. State,
    the hypothetically correct jury charge requirement of Malik applies equally to any
    allegation of punishment enhancement, such as a drug-free zone allegation. Young v.
    State, 
    14 S.W.3d 748
    , 750 (Tex.Crim.App. 2000). The “‘law’ as ‘authorized by the
    indictment’ must be the statutory elements” of the offense charged “as modified by the
    charging instrument.” Curry v. State, 
    30 S.W.3d 394
    , 404 (Tex.Crim.App. 2000).
    The Law of Variance
    We first look at the indictment in question. The indictment authorized a finding
    that the offense occurred in a drug-free zone if the offense was “within 1,000 feet of real
    property owned by a school, namely Bozeman Elementary.”                This allegation is
    problematic for the Court because appellant was charged pursuant to section
    481.115(c), possession of a controlled substance of one gram or more but less than
    four grams. § 481.115(c). The punishment enhancement alleged was pursuant to
    section 481.134(d)(1). § 481.134(d)(1). This particular drug-free zone allegation does
    not apply to offenses committed pursuant to section 481.115(c).               Rather, the
    enhancement as alleged applies to section 481.115(b), possession of a controlled
    substance of less than one gram. § 481.115(b). To further complicate the analysis of
    the variance issue is the fact that the record reveals that the special issue submitted to
    the jury alleged that the offense occurred “within 1,000 feet of the premises of a school,
    further described as Bozeman Elementary School.” As submitted without objection, this
    6
    allegation of a drug-free zone is that authorized under section 481.134(c)(1).         §
    481.134(c)(1). Such an allegation is the proper enhancement allegation for an offense
    committed pursuant to § 481.115(c), the applicable offense of which appellant was
    convicted.
    Analysis
    From this procedural background, we must now address the question of
    variance. Because appellant’s issues are framed as sufficiency of the evidence issues,
    we must refer to a hypothetically correct jury charge. See Cada v. State, 
    334 S.W.3d 766
    , 773 (Tex.Crim.App. 2011) (citing 
    Malik, 953 S.W.2d at 240
    ). Such a charge is one
    that accurately sets forth the applicable law and is authorized by the indictment. 
    Id. Further, a
    hypothetically correct jury charge need not incorporate allegations that would
    be considered an immaterial variance.          Gollihar v. State, 
    46 S.W.3d 243
    , 256
    (Tex.Crim.App. 2001).
    In the case before the Court, the immediate problem is that the charge submitted
    a drug-free zone issue to the jury that appears not to have been authorized by the
    indictment but is the applicable law.    Accordingly, we must determine whether the
    allegation of the specific means of proving a drug-free zone, as alleged in the
    indictment, is an element of the offense for purposes of variance analysis. See 
    Cada, 334 S.W.3d at 773-74
    .
    In Cada, there were several alternative methods of pleading retaliation,
    depending upon the specific status of the complainant. 
    Id. at 770.
    These alternative
    methods of pleading retaliation based upon the status of the complainant were held to
    7
    be elements of the offense. 
    Id. at 776.
    The State alleged one of the alternatives that
    was not supported by the evidence and this led the Texas Court of Criminal Appeals to
    determine that the variance at issue was a material variance, and, thus, the evidence
    was insufficient to support the jury’s verdict. 
    Id. at 774.
    Additionally, when we review
    an earlier opinion of the Texas Court of Criminal Appeals, we find language that “Malik’s
    principles apply equally to the affirmative findings necessary to sustain imposition of an
    enhanced punishment.” 
    Young, 14 S.W.3d at 750
    .
    Because the statutory scheme of the Texas Health & Safety Code provides a list
    of punishment enhancements from which the State must choose, it appears that such
    would be considered “elements” of the enhancement allegations.           See § 481.134;
    
    Young, 14 S.W.3d at 750
    .        Those allegations, as elements of the enhancement
    provision of the indictment, lead to the conclusion that there was, in fact, a variance
    between the indictment and the proof of the special issue submitted by the trial court.
    See 
    Cada, 334 S.W.3d at 774
    . Further, because the variance related to an element of
    enhancement, the variance at issue was material. See 
    id. at 768.
    Accordingly, we
    review the evidence to determine whether it was insufficient to prove the allegations
    required by the hypothetically correct jury charge, which, here, would include the
    allegation that the offense occurred “within 1,000 feet of real property owned by a
    school.” See 
    id. The evidence
    at trial was that the offense occurred within 1,000 feet of Bozeman
    Elementary School. This evidence was provided by both Officer Franco and Skipper
    Wood.     Franco testified that the possession occurred approximately 300 feet from
    8
    Bozeman Elementary School. Wood testified with the aid of an aerial map that showed
    a 1,000 foot arc drawn from Bozeman Elementary School. The site of the possession
    fell within that arc. From the evidence at trial, we conclude that the evidence supported
    a finding that the possession in question occurred within 1,000 feet of Bozeman
    Elementary School. See 
    Young, 14 S.W.3d at 754
    . However, this does not end our
    inquiry. The next question is, was there any evidence that this possession was within
    1,000 feet of real property “owned” by a school, namely, Bozeman Elementary School
    as alleged in the indictment and required by the hypothetically correct jury charge.
    In Perez v. State, this Court was called upon to answer a similar question. See
    Perez v. State, 
    332 S.W.3d 700
    , 703 (Tex.App.—Amarillo 2011, pet. ref’d) (citing 
    Young 14 S.W.3d at 754
    ). There, the contention on appeal was that there was no testimony
    that the real property on which the school in question sat was “owned, rented, or leased
    to a school or school board” as required by the applicable enhancement provision,
    section 481.134(d)(1). 
    Id. The Court
    held that based upon the evidence presented,
    maps presented showing the school by name and testimony of the officers about where
    the incident occurred, there was sufficient evidence for a jury’s reasonable inference
    that the charged offense was within 1,000 feet of real property owned, rented, or leased
    to a school or school board. 
    Id. at 704.
    In the present case, the evidence was of the same nature and character as that
    in Perez. Application of the Perez rationale leads to the conclusion that a rational jury
    could have found all of the elements necessary to find appellant guilty beyond a
    reasonable doubt, including the enhancement allegation in the hypothetically correct
    9
    jury charge. See 
    Jackson, 443 U.S. at 319
    ; 
    Brooks, 323 S.W.3d at 912
    . Appellant’s
    second issue is predicated upon the same contention of failure of the evidence and,
    accordingly, is also overruled.
    Conclusion
    Having overruled appellant’s issues, we affirm the trial court’s judgment.
    Mackey K. Hancock
    Justice
    Do not publish.
    10
    

Document Info

Docket Number: 07-11-00047-CR

Filed Date: 10/17/2011

Precedential Status: Precedential

Modified Date: 10/16/2015