White v. State

TIM TAFT, Justice,

concurring and dissenting.

For the following reasons, I concur in the majority opinion’s decision to hold the evidence legally sufficient to prove ownership of the premises by St. John’s School, but I dissent from the decision to hold the evidence factually sufficient.

Sufficiency of the Evidence Regarding Ownership

In his first point of error, appellant contends there is legally and factually insufficient evidence to support the conviction. Specifically, he argues that the evidence was insufficient to show that he delivered a controlled substance within 1,000 feet of premises owned by Saint John’s School, a drug free zone, as alleged in the indictment.

A drug free zone is defined as a private or public elementary or secondary school or a day-care center. Tex. Health & Safety Code Ann. § 481.134(a)(5) (Vernon Supp.2001). An individual convicted of selling drugs in, on, or within 1,000 feet of, any real property owned, rented, or leased to a school or school board, is subject to an enhanced penalty. Tex. Health & Safety Code Ann. § 481.134(d)(1) (Vernon Supp. 2001). Thus, there are three modes of a school’s possessory interest in premises of a drug free zone for commission of the enhanced delivery offense.¹ Here, the State elected to allege only the ownership mode, and thus was obligated to prove ownership of the premises in St. John’s School, as alleged in the indictment and as charged in the jury instructions authorizing the jury to find appellant guilty.²

A. Legal Sufficiency

Appellant argues the evidence at trial established only that Saint John’s Church owned the premises and that a school was operated on those premises. Appellant’s reasoning is that the phrase “owned by St. John’s” could only refer to the church, because that was the only “St. John’s” Reverend Taylor identified in his testimony. Appellant claims no proof was introduced that Saint John’s School owned anything.

Viewed in the light most favorable to the verdict, there is evidence that: (1) St. John’s Lutheran Church owns the premises on which St. John’s School is located and (2) St. John’s Lutheran Church is operated as a school. From this evidence, the inference could be made that St. John’s Lutheran Church and St. John’s School are one and the same. There is also evidence that the offense occurred about 616.8 feet from St. John’s School, a fair inference from which may be that St. John’s School owned the premises upon which it was located. Under the legal sufficiency standard, every inference shall be made in favor of the jury’s verdict. See Richardson v. State, 879 S.W.2d 874, 879 (Tex.Crim.App.1993). Viewed in this manner, the evidence is legally sufficient to sustain the State’s burden to prove the premises were owned by St. John’s School.³

Accordingly, for different reasons, I concur with the majority opinion’s overruling that portion of appellant’s first point of error contending that the evidence was legally insufficient to prove the premises were owned by St. John’s School.

B. Factual Sufficiency

Under the factual sufficiency standard of review, we must view all of the evidence neutrally and not make every inference in favor of the jury’s verdict. We may not disregard Reverend Taylor’s testimony, which is the only evidence directly addressing the ownership of the premises on which the school is located. Without indulging the inferences necessary for legal sufficiency — that St. John’s Lutheran Church and St. John’s School are one and the same or that St. John’s School owns the premises on which it is located — the only evidence regarding ownership of the premises clearly established ownership of the premises in St. John’s Lutheran Church. Having alleged ownership of the premises in St. John’s School, the State’s evidence, without the inferences applied for legal sufficiency, was either too weak to prove ownership of the premises in St. John’s School or so contrary to the great weight and preponderance of the evidence regarding ownership in St. John’s School to withstand the scrutiny mandated by the factual-sufficiency standard of review.

Accordingly, I would sustain that portion of appellant’s first point of error contending that the evidence was factually insufficient to prove the premises were owned by St. John’s School.

Conclusion

I would reverse the trial court’s judgment and remand for a new trial. Because the majority opinion would affirm by overruling legal and factual sufficiency challenges, I respectfully concur in overruling the legal sufficiency challenge, but dissent to the overruling of the factual sufficiency challenge.

1 . We are not concerned with a situation, such as for offenses defined by the Penal Code, in which ownership is defined as including having possession of the property or having a greater right to the property than the accused, in addition to having title to the property. See Tex Penal Code Ann. § 1.07(a)(35)(A) (Vernon 1994).

2 . The majority opinion accurately sets out the facts and the applicable standards of review for legal and factual sufficiency.

3 . The problem I see in the majority opinion’s "operational” approach is that, while there is no question the evidence shows that St. John’s Lutheran Church operates as a school, the State did not allege St. John’s Lutheran Church as the owner of the premises. It alleged St. John’s School as the owner of the premises.