Lovelady v. State

65 S.W.3d 810, 2002 Tex. App. LEXIS 378, 2001 WL 1710619
CourtCourt of Appeals of Texas
DecidedJanuary 16, 2002
Docket09-01-144 CR
StatusPublished
Cited by5 cases

This text of 65 S.W.3d 810 (Lovelady 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
Lovelady v. State, 65 S.W.3d 810, 2002 Tex. App. LEXIS 378, 2001 WL 1710619 (Tex. Ct. App. 2002).

Opinions

OPINION

RONALD L. WALKER, Chief Justice.

Jarvis Duran Lovelady pleaded guilty without a plea bargain to possession of a controlled substance. The trial court assessed punishment and sentenced Lovela-dy to five years’ confinement in the Texas Department of Criminal Justice, Institutional Division. Lovelady appeals claiming the trial court erred in assessing punishment because the indictment and the evidence support only a state jail felony.

The indictment charged Loveday with possession of cocaine in an amount \m than one gram under section 481.115(b) of the Texas Health & Safety Code.1 Paragraph B of the indictment further alleged that Lovelady “committed the above offense in a place that [he] knew was within 300 feet of the premises of a school, to wit: Willis High School....” Lovelady stated he committed each and every element alleged in the indictment. Lovelady stipulated he knowingly possessed a controlled [812]*812substance in an amount less than one gram and further, that he “committed the above offense in a place that [he] knew was within 300 feet of the premises of a school, to wit: Willis High School.... ”

In reviewing the legal sufficiency of stipulated evidence to support a trial court’s finding of guilt, we view the stipulated evidence as if it was testimony from an individual witness or witnesses. See Robinson v. State, 739 S.W.2d 795, 799 n. 5 (Tex.Crim.App.1987) (quoting Stell v. State, 496 S.W.2d 623, 626 (Tex.Crim.App.1973)). The relevant inquiry is whether, after viewing the evidence in the light most favorable to the verdict, the trial court, as the rational trier of fact, could have found all of the essential elements to have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As for stipulations specifically, it has been observed that they are to be reasonably and liberally construed with a view of effectuating the parties’ intentions. See O’Conner v. State, 401 S.W.2d 237, 238 (Tex.Crim.App.1966). When construing a stipulation of evidence, it is inconceivable that a trier of fact may not make inferences from stipulated facts. See Ledesma v. State, 677 S.W.2d 529, 531 (Tex.Crim.App.1984). Finally, we note that a reviewing court measures legal sufficiency of the evidence against a hypothetically correct jury charge, regardless of whether the trial is to the bench or to a jury. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).

Possession under section 481.115(b) is punishable as a state jail felony. If the possession occurs in one of the drug-free zones set forth in section 481.134, it is punishable as a third degree felony. Tex. Health & Safety Code Ann. § 481.134 (Vernon Supp.2001). The only “drug-free zone” provision applicable to appellant’s possession of less than one gram of cocaine is section 481.134(d). It provides:

(d) An offense otherwise punishable under Section 481.112(b), 481.113(b), 481.114(b), 481.115(b), 481.116(b), 481.120(b)(3), or 481.121(b)(3) is a felony of the third degree if it is shown on the trial of the offense 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; or
(2) on a school bus.

Tex. Health & Safety Code Ann. § 481.134(d)(1) & (2) (Vernon Supp.2001).

Taken in the light most favorable to the verdict, the stipulation provides proof that Lovelady knowingly possessed the cocaine in question “within 300 feet,” which is well within the statutory “1,000 feet,” of Willis High School. Indeed, the Pre-Sentence Investigation Report (PSI) which was admitted into evidence without objection by Lovelady indicates that appellant was arrested on the Willis High School campus and when searched on school premises, was found to be in possession of the cocaine. Therefore, the only question with regard to the legal insufficiency issue is whether any rational trier of fact could have found proof that the property upon which Lovelady possessed the cocaine was “owned, rented, or leased [by or] to a school or school board.”

The rules of evidence allow a trial court to take judicial notice of a fact generally known within the territorial jurisdiction of the trial court or of a fact capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Tex. R. Evid. 201(b). Indeed, the trial court may take judicial notice of an adjudicative fact whether or not requested to do so, and also may take judicial notice at any stage [813]*813of the proceeding. Tex. R. Evid. 201(c) & (f). In 1.70 Acres, .20 Acres, and .28 Acres of Real Property and Structures Thereon (Mizell) v. State, 935 S.W.2d 480, 489 (Tex.App.-Beaumont 1996, no pet.), we stated the following:

It has been said that judicial notice is one of the oldest doctrines of common law; however, it is not without safeguards and limitations. Taking judicial knowledge of any fact is subject to the test of “verifiable certainty.” See, Eagle Trucking Co. v. Texas Bitulithic Co., 612 S.W.2d 503, 506 (Tex.1981). The Court may take judicial notice of the location of cities, counties, boundaries, dimensions, and distances, because geographical facts such as these are easily ascertainable and capable of verifiable certainty. Butts Retail, Inc. v. Diversifoods, Inc., 840 S.W.2d 770, 774 (Tex.App.-Beaumont 1992, writ denied). Well-known and easily ascertainable facts may be judicially noticed. Eagle Trucking, 612 S.W.2d at 506.

The question before us is analogous to one considered by the San Antonio Court of Appeals in Trujillo v. State, 809 S.W.2d 593 (Tex.App.-San Antonio 1991, no pet.). In Trujillo, the defendant was charged with assaulting a school teacher. Id. at 594. Trujillo’s punishment exposure was elevated to a Class' B misdemeanor if the State proved that the victim was a teacher on duty at “a school accredited by the Texas Education Agency.” Id. On appeal, Trujillo contended the trial court erred in permitting the victim, over Trujillo’s timely objection, to testify that the school at which she worked was accredited by the Texas Education Agency. Id. at 595.

After setting out the provisions of Tex. R. Evid. 201, the San Antonio Court, analyzed the issue as follows:

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Bluebook (online)
65 S.W.3d 810, 2002 Tex. App. LEXIS 378, 2001 WL 1710619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lovelady-v-state-texapp-2002.