Anthony Perez v. State

Opinion

NO. 07-09-0329-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JANUARY 27, 2011

______________________________

ANTHONY PEREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2009-424,441; HONORABLE CECIL G. PURYEAR, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

OPINION

Following a plea of not guilty, Appellant, Anthony Perez, was convicted by a jury

of possession of less than one gram of cocaine, with intent to deliver, in a drug-free

zone, enhanced by a prior felony conviction for retaliation. The offense was a second

degree felony punishable by confinement for any term of not more than 20 years or less

than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (West Supp. 2010).1 Appellant's punishment was assessed at twenty years confinement and

a $10,000 fine. Presenting two issues, Appellant maintains the evidence is legally and

factually insufficient to support the jury's finding that he possessed, with intent to deliver,

a controlled substance in a drug-free zone, i.e., within 1,000 feet of any real property

that was owned, rented, or leased to a school or school board.

Background Facts

On July 21, 2009, undercover officers set up a buy at a local motel known for

heavy narcotics traffic. At approximately 1:00 p.m., Officer Michael Chavez, a narcotics

investigator in an undercover role, rode his bicycle to the southeast parking lot of the

motel and observed multiple subjects on the southeast stairwell. The officer made

contact with Appellant, who was standing on the stairwell landing. In street language,

the officer asked if anyone had drugs and Appellant asked him what he needed. Using

street jargon, the officer asked for a twenty dollar rock of crack. He gave Appellant two

ten dollar bills, and Appellant and three other individuals left the stairwell and proceeded

toward the interior of the building to a hallway area. Appellant returned and placed a

single crack rock on the railing near where the officer's bicycle was located. The officer

grabbed the rock, put it in his shirt pocket, and left. He alerted other officers and a take-

down team moved in and arrested Appellant.

1 Possession of less than one gram of cocaine, with intent to deliver, is a state jail felony. See Tex. Health and Safety Code Ann. § 481.112(b) (West 2010). An offense otherwise punishable as a state jail felony under § 481.112(b), committed in a drug-free zone, is a felony of the third degree. See Tex. Health and Safety Code Ann. § 481.134(d)(1) (West 2010). A third degree felony enhanced by a prior felony conviction is punishable as a second degree felony. See Tex. Penal Code Ann. § 12.42(a)(3) (West Supp. 2010).

2 Appellant contends the evidence is legally and factually insufficient to prove the

punishment enhancement for possession with intent to deliver within "1,000 feet of any

real property that is owned, rented, or leased to a school . . . ."2 Specifically, he argues

that the State failed to introduce property records regarding ownership of Hodges

Elementary School.

I. Sufficiency Standard of Review

The Texas Court of Criminal Appeals has recently held that the only standard

that a reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense the State is required to prove beyond a

reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 33 S.Ct.

2781, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912

(Tex.Crim.App. 2010)3 Under that standard, in assessing the sufficiency of the

evidence to support a criminal conviction, this Court considers all the evidence in the

light most favorable to the verdict and determines whether, based on that evidence and

reasonable inferences to be drawn therefrom, a rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S.

at 319; Brooks, 323 S.W.3d at 912. We measure the legal sufficiency of the evidence

by the elements of the offense as defined by a hypothetically correct jury charge. Malik

2 Appellant does not challenge the sufficiency of the evidence to prove that he possessed less than one gram of cocaine with intent to deliver.

3 Judge Hervey delivered the opinion in Brooks, joined by Judges Keller, Keasler, and Cochran; and, Judge Cochran delivered a concurring opinion, joined by Judge Womack. Although we are not bound by a decision of four judges, Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal sufficiency.

3 v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). In our review, we must evaluate

all of the evidence in the record, both direct and circumstantial, whether admissible or

inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert.

denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).

II. Applicable Law

As indicted, the State was required to prove that Appellant possessed, with intent

to deliver, less than one gram of cocaine within 1,000 feet of a school, specifically,

Hodges Elementary School. Tex. Health & Safety Code Ann. § 481.134(d)(1) (West

2010).4 The principles of Malik apply to the affirmative findings necessary to sustain the

imposition of an enhancement provision. Young v. State, 14 S.W.3d 748, 750

(Tex.Crim.App. 2000). The State presented testimony from three witnesses to prove

that Appellant sold cocaine in a drug-free zone.

III. The Testimony and Evidence

A. Skipper Wood

Skipper Wood, a civil engineer with the City of Lubbock with eighteen years

experience, testified that in determining what constitutes a drug-free zone, he utilizes a

"straight line kind of thing," a geographic information system that shows everything to

scale on city computers, or Google, "which is pretty accurate . . . ." He added that he

uses whatever is necessary in making his determination.

4 According to Tex. Health & Safety Code Ann. § 481.134(a)(5) (West 2010), a school means a private or public elementary or secondary school. For convenience, all future references to "§ __" are references to the Texas Health & Safety Code Ann. (West 2010).

4 Wood was asked to determine if Appellant sold the cocaine to Officer Chavez

within 1,000 feet of Hodges Elementary School. The specific location of the transaction

was verified as being the stairwell adjacent to Room 135 of the motel. According to

Wood, he began his measurement at the property line for Hodges Elementary School

and created a 1,000 foot arc from that point. He calculated that the stairwell at the

motel where the cocaine was sold was 950 feet from the school's property line.

B. Officer Michael Chavez

During Officer Chavez's testimony, the State introduced Exhibit 4,5 a satellite

photograph depicting the area where Officer Chavez had purchased the cocaine and

Hodges Elementary School. He testified to his opinion that based on his training and

experience, the location where the buy was made fell within a drug-free zone.

C. Officer Rick Maldonado

Officer Maldonado was a member of the take-down team assigned to the

undercover operation at the motel. During direct examination, he affirmatively

responded when asked if he knew that the location of the transaction was a drug-free

zone.

III. Analysis

Appellant urges on appeal that none of the State's witnesses testified that the

real property on which Hodges Elementary School is located is "owned, rented, or

leased to a school or school board" as required by the plain language of § 5 Wood testified that he created Exhibit 4 from an aerial photograph.

5 481.134(d)(1). Comparing the elements of § 481.134(c) (which does not apply to

offenses punishable under § 481.112(b)) with those of § 481.134(d) (which specifically

applies to offenses punishable under § 481.112(b)),6 Appellant asserts the Legislature

intended to require proof of ownership as an additional independent element in cases

punishable under § 481.112(b). He concludes that proof of a defendant's physical

distance from a particular "premises," without proof that the property is "owned, rented,

or leased to a school or school board," is insufficient to establish the "ownership"

element of § 481.134(d)(1).

In deciding what hypothetically correct jury charge to apply in Young v. State, 14

S.W.3d at 751, the Texas Court of Criminal Appeals reviewed the legislative history of §

481.134. That section was amended twice in 1995. Effective May 30, 1995, various

enhancement subsections were added and effective September 1, 1995, the Legislature

abandoned the former doubling of the minimum term of confinement scheme in favor of

an increased-grade approach already employed by several of the new subsections.

See id. at 751-52. The Court concluded that because both amendments were enacted

by the same session of the Legislature, the amended subsections could be harmonized.

Id. at 752. Essentially, as they currently exist, subsections (b), (d), (e), and (f) of §

481.134 are enhancement provisions whereas subsection (b) sets a minimum term of

confinement without increasing the grade of the offense.

6 §481.134(c) provides in part, "[t]he minimum term of confinement or imprisonment for an offense otherwise punishable under Section 481.112(c) . . . is increased by five years . . . if it is shown . . . that the offense was committed: (1) in, on, or within 1,000 feet of the premises of a school . . . ." As contrasted to § 481.134(d) which provides in part, "[a]n offense otherwise punishable under Section 481.112(b) . . . is a felony of the third degree if it is shown . . . that the offense was committed: (1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board . . . ." (Emphasis added).

6 While we do not disagree with Appellant that the State did not present evidence

of ownership of Hodges Elementary School, the Court noted in Young v. State, that "the

name of the premises alone may be sufficient to raise a presumption that it is a private

or public elementary or secondary school." 14 S.W.3d at 754. Additionally, just as in

Young, the State presented a map created by a municipal engineer for the purpose of

showing the location and boundaries of the drug-free zone. Id. At a minimum, the map

is probative evidence of the drug-free zone boundaries. Id.

The presumption created by Young, together with the testimony summarized

above and reasonable inferences drawn therefrom, when viewed in the light most

favorable to the verdict, was sufficient to allow a rational jury to have found beyond a

reasonable doubt that Appellant committed the charged offense within 1,000 feet of real

property owned, rented, or leased to a school or school board. Appellant's first issue is

overruled and his second issue is pretermitted by Brooks. 323 S.W.3d at 912.

Conclusion

Consequently, the trial court's judgment is affirmed.

Patrick A. Pirtle Justice

Publish.