Jesse Daniel Sabedra, III v. State

IN THE
TENTH COURT OF APPEALS
No. 10-16-00033-CR
JESSE DANIEL SABEDRA, III,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Hamilton County, Texas
Trial Court No. CR-08024
MEMORANDUM OPINION
Jesse Daniel Sabedra, III, was convicted of delivery of a controlled substance in a
drug free zone and sentenced to 30 years in prison. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.134(d) (West 2010). Because the evidence is sufficient to support the drug-free zone
enhancement, but the trial court erred in the assessment of certain costs, the trial court’s
judgment is modified and affirmed as modified.
SUFFICIENCY OF DRUG-FREE ZONE EVIDENCE
Sabedra was arrested following a drug purchase by an informant for the Hamilton
County Sheriff’s Office. The arrest occurred within 1,000 feet of a school’s property. In
his first issue, Sabedra contends the evidence was insufficient to show that the offense
was committed within a drug free zone because the State failed to prove that the property
was owned, leased, or rented by the Hamilton Independent School District.
Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly
and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the
conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
Sabedra v. State Page 2
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well
established that the factfinder is entitled to judge the credibility of witnesses and can
choose to believe all, some, or none of the testimony presented by the parties. Chambers
v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
To determine whether the State has met its burden under Jackson, we compare the
elements of the crime as defined by the hypothetically correct jury charge to the evidence
admitted on the record at trial before the factfinder. Thomas v. State, 444 S.W.3d 4, 8 (Tex.
Crim. App. 2014); see Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A
hypothetically correct jury charge need not, however, incorporate allegations that would
give rise to only immaterial variances. See Geick v. State, 349 S.W.3d 542, 545 (Tex. Crim.
App. 2011). Immaterial variances do not affect the validity of a criminal conviction.
Thomas, 444 S.W.3d at 9. The Court of Criminal Appeals has applied Malik's principles to
drug-free-zone enhancements. See Young v. State, 14 S.W.3d 748 (Tex. Crim. App. 2000);
Williams v. State, 440 S.W.3d 717, 721 (Tex. App.—Amarillo 2013, pet. ref’d); Haagensen v.
State, 346 S.W.3d 758, 761 (Tex. App.—Texarkana 2011, no pet.).
Sabedra v. State Page 3
Argument
Sabedra complains that the State never proved the offense took place within 1,000
feet of property owned, leased, or rented by the Hamilton Independent School District.
However, like the victim’s name in the offense of injury to an elderly individual, the
name, “Hamilton Independent School District,” is not a statutory element in the drug-
free zone enhancement. See Fuller v. State, 73 S.W.3d 250, 252-253 (Tex. Crim. App. 2002).
Further, there is no indication in the record that Sabedra was surprised by the proof at
trial, and the “variance” between the indictment and the proof does not subject him to a
another prosecution for the same offense. See id. at 254. The name Hamilton Independent
School Distrust is simply an immaterial variance that does not affect the validity of the
conviction. Thus, following the principles in Malik, a hypothetically correct jury charge
for the drug free zone enhancement to the offense in this case would only require the
State to prove that (1) the offense (2) was committed (3) within 1,000 feet of any real
property that is owned, rented, or leased to (4) a school or school board.
Application
In this case, the investigator with the Hamilton County Sheriff’s Office testified
that the delivery of the drugs occurred within 1,000 feet of property owned by “the
school.” This testimony is sufficient to support the drug-free zone enhancement
allegation under a hypothetically correct jury charge. Sabedra’s first issue is overruled.
Sabedra v. State Page 4
COSTS
In his second and third issues, Sabedra contends the trial court erred in assessing
certain costs against him because the costs are not statutorily authorized. Specifically,
Sabedra challenges the court’s assessment of $133.00 for “copies/search” and $5.00 for
“Criminal-Co. Drug Court Fee.”
Only statutorily authorized court costs may be assessed against a criminal
defendant. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). Although there
is statutory authorization for a $133.00 felony conviction fee and for a $60.00 drug
conviction fee,1 we have not found statutory authorization for a copies/search fee in the
amount of $133.00 or for a criminal county drug court fee in the amount of $5.00.
Accordingly, Sabedra’s second and third issues are sustained, and the trial court’s
judgment is modified to delete the $133.00 “copies/search fee” and the $5.00 “Criminal-
Co. Drug Court Fee.”
JUDGMENT
In his final issue, Sabedra contends the trial court’s judgment is incorrect and must
be modified to reflect the sections of the Texas Health and Safety Code of which he was
found to have been convicted. It is true that we have the authority to reform incorrect
judgments when we have the necessary data and information to do so. See Banks v. State,
1
TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West 2008); TEX. CODE CRIM. PROC. ANN. art. 102.0178 (West
2006).
Sabedra v. State Page 5
708 S.W.2d 460, 462 (Tex. Crim. App. 1986); Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet. ref'd). However, this judgment is not incorrect.
As the Code of Criminal Procedure requires, the judgment accurately reflects that
Sabedra was convicted of the offense of Delivery of a Controlled Substance, Penalty
Group 1, less than One Gram, in a Drug-Free Zone. See TEX. CODE CRIM. PROC. ANN. art.
42.01, Sec. 1(13) (West 2006) ("The judgment shall reflect...the offense or offenses for
which the defendant is convicted."). The Code does not require the statutory code
provisions or every nuance of the statutory code provisions also be reflected in the
judgment. White v. State, No. 10-15-00146-CR, 2015 Tex. App. LEXIS 8523, at *2 (Tex.
App.—Waco Aug. 13, 2015, no pet.) (not designated for publication). The fact that the
Health and Safety Code provision cited along with the name of the offense in this
particular judgment only refers to the subsection regarding the punishment if an offense
is committed within a drug-free zone does not make the judgment in need of correction.
Id. Accordingly, Sabedra’s fourth issue is overruled.2
2
As we have said before, rather than an appeal, we note that a more efficient manner of making this type of
change may be a motion for modification or motion for judgment nunc pro tunc, depending on the timing
of the discovery of the issues, filed in the trial court. Kerr v. State, No. 10-15-00113-CR, 2016 Tex. App.
LEXIS 12082, at *2 n.3 (Tex. App.—Waco Nov. 9, 2016, no pet.) (not designated for publication).
Sabedra v. State Page 6
CONCLUSION
Having sustained Sabedra’s second and third issues, we modify the trial court’s
judgment and affirm the judgment as modified.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Modified and affirmed as modified
Opinion delivered and filed March 15, 2017
Do not publish
[CRPM]
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