Kevin Royce Peek v. State

494 S.W.3d 156, 2015 Tex. App. LEXIS 3759, 2015 WL 1778952
CourtCourt of Appeals of Texas
DecidedApril 16, 2015
Docket11-12-00319-CR
StatusPublished
Cited by14 cases

This text of 494 S.W.3d 156 (Kevin Royce Peek v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kevin Royce Peek v. State, 494 S.W.3d 156, 2015 Tex. App. LEXIS 3759, 2015 WL 1778952 (Tex. Ct. App. 2015).

Opinion

OPINION

JOHN M. BAILEY, JUSTICE

The jury convicted Kevin Royce Peek of possession of four grams or more but less than 200 grams of methamphetamine with the intent to deliver in a drug-free zone. Appellant pleaded true to two enhancement allegations. The jury found both enhancement allegations to be true, and it assessed Appellant’s punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. Appellant challenges his conviction in five issues. We affirm.

Background Facts

Appellant does not challenge the sufficiency of the evidence to support his conviction for possession, of four grams or more but less Than 200 grams of methamphetamine with intent to deliver. He does challenge the sufficiency of the evidence to establish that he' committed the offense in a drug-free zone. We will briefly summarize the evidence at trial to provide context for Appellant’s issues on appeal. ■

On November 9, 2011, Detective Shawn Dibrell and Officer Stephanie Hale of the Early Police Department were working drug interdiction in an unmarked police ‘vehicle. At about 3:15 p.m., they observed a vehicle that had an expired registration. The officers followed the vehicle. Detective Dibrell activated his lights to stop the driver of the vehicle. The officers saw three occupants in the vehicle. Officer Dibrell observed the front-seat passenger moving from side to side in the vehicle. Officer Dibrell believed that the passenger might be grabbing a weapon or hiding something. Eventually, the driver pulled the vehicle to the side of the road and stopped., Detective Dibrell called for backup. Chief David Mercer and Officer Amanda Williams arrived at the scene.

The officers cautiously approached the vehicle and contacted the occupants. Detective Dibrell turned on his audio recorder. Appellant was in the driver’s seat; Appellant’s brother, James Kirby Peek, was in the front passenger’s seat; and Hector Gonzales was in the backseat behind Kirby. Appellant reached under his lap, removed a syringe, and dropped it to the floor. For safety reasons, the officers *160 had Appellant, Kirby, and Gonzales exit the vehicle, and the officers handcuffed them. The officers, searched Appellant, Kirby, and Gonzales for weapons. Detective Dibrell found marihuana and a Q-tip in one of Appellant’s pants pockets. Detective Dibrell testified that cotton from Q-tips is commonly used as a filter in connection with injecting methamphetamine. Officer Williams found a bag that contained three small Ziploc bags full of methamphetamine and twenty-nine empty Ziploc bags in one of Kirby’s shoes. The three bags contained. about sixteen grams of methamphetamin'e.- Testing of the substances at the Department of Public Safety Laboratory in Abilene confirmed that the seized substances were methamphetamine. Officer Hale found a pipe that contained methamphetamine residue in one of Gonzales’s shoes.

Appellant told Detective Dibrell that he felt sick and dehydrated. Detective Dib-rell said that Appellant turned “white as a ghost” and could barely stand up. Detective Dibrell gave Appellant something to drink.

Detective Dibrell gave Miranda 1 "warnings to Appellant, ■ Kirby, and Gonzales. They all told Detective Dibrell that they wanted to talk to him. 1

Appellant told Detective Dibrell that he had driven Kirby and Gonzales to Gran-bury so that Kirby and Gonzales could obtain methamphetamine. Appellant, told Detective Dibrell that he knew methamphetamine was inside the vehicle.

On the following day, Detective Dibrell took a recorded statement from Appellant. During the statement, Appellant acknowledged that he took Kirby and Gonzales to Cindy Webb’s tráiler house in Granbury so that Kirby and Gonzales could get methamphetamine from‘Webb. According to Appellant, he believed that Kirby- planned to get about four grams of methamphetamine from Webb. After the group arrived at Webb’s house, Kirby left with Webb and two men to obtain methamphetamine. Appellant and Gonzales stayed at "Webb’s house. Kirby and the others returned to Webb’s house about five hours later. Appellant said that, at that time, he smoked methamphetamine at Webb’s house. Appellant told Detective Dibrell that both Kirby and Gonzales ’obtained methamphetamine from Webb. Appellant told Detective Dibrell that he knew Kirby had methamphetamine inside the vehicle.

Detective Dibrell agreed that sixteen grams of methamphetamine is a “fairly substantial” amount. He said that such an amount was intended for distribution as opposed to individual use. Detective Dib-rell said that sixteen grams of methamphetamine has a value of at least $1,600. Detective Dibrell testified that Ziploc bags, such as the twenty-nine empty bags that were found in Kirby’s shoe, are used to package methamphetamine for distribution. Detective Dibrell said that he had “no doubt” that the amount seized was intended for distribution.

=Kirby testified that the methamphetamine belonged to him. He said that Appellant did not know anything about the methamphetamine. Kirby testified that he planned to distribute the bags of methamphetamine to two people.

Detective Dibrell testified about the location of the stop. He said that Appellant stopped his vehicle “directly across” from Early High School. Detective Dibrell indicated that the stop occurred less than 1,000 feet from school property.

Analysis

Appellant presents five issues for review.' In his first two issues, Appellant *161 contends that the trial court erred (1) in defining “intentionally” and “with intent” in terms of the nature of the conduct rather than the result of the conduct in the abstract portion of the jury charge and (2) in failing to apply a result-of-conduct definition of “intentionally” and “with intent” to the law of parties issue in the application portion of the jury charge. In his third issue, Appellant contends that his trial counsel rendered ineffective assistance in failing to request that the jury charge' provide a definition of “intentionally” and “with intent” in terms of the nature of the result only and to request that those definitions be applied to the law of. parties as set forth in the application paragraph of the charge. In his fourth issue, Appellant contends -that the trial court erred in refusing to allow him to impeach the credibility of Detective Dibrell by eliciting testimony related to Detective Dib-rell’s work history and to an allegation that Detective Dibrell tampered with evidence. In his fifth issue, Appellant contends that the evidence was insufficient to establish that he committed the offense within 1,000 feet of the premises of a school. . .

A Jury Charge Issues

The indictment alleged that, on or about November 9, 2011, Appellant “did then and there knowingly possess, with intent to deliver, a controlled substance, namely, Methamphetamine, in an amount of four grams or more but less than 200. grams.” The indictment further alleged that “[appellant] committed the above offense within 1,000 feet of the premises of a school, to wit: Early High School, 115 Sudderth, Early, Texas.”

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Cite This Page — Counsel Stack

Bluebook (online)
494 S.W.3d 156, 2015 Tex. App. LEXIS 3759, 2015 WL 1778952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kevin-royce-peek-v-state-texapp-2015.