In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00182-CR ______________________________
STEVEN DEON JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 22558
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Based on actions of Steven Deon Jones taken during a span of less than three months in late 2007 and early 2008, Jones was charged in Lamar County with three drug-related offenses. The three charges were consolidated and tried together, resulting in convictions on all charges and companion appeals to this Court. (1)
In two of the five points of error asserted in this case, Jones attacks the judgment's recitation that his offense was a third-degree felony and asserts that his offense is a state jail felony. We agree, and will reform the judgment to reflect that the offense in this case is a state jail felony.
In three other points of error in this case--points which are addressed in our opinion in the companion case numbered 06-08-00181-CR, issued contemporaneously with the issuance of this opinion--Jones asserts (1) that the statute of the offense should be set out in the judgment as Section 481.112 of the Texas Health and Safety Code, rather than Section 481.134 (the enhancement provision triggered by drug activity in a drug-free zone); and (2) that the address of the playground was not proven. For the reasons set out in our opinion in that companion case, we agree that the proper statute of offense is Section 481.112--and so reform the trial court's judgment herein--but find that the amendment of the indictment vitiated any need to prove the address of the playground.
On October 29, 2007, Dale Seagroves, a confidential informant acting at the direction of, and in cooperation with, the Paris Police Department, went to the Westgate Apartments complex in Paris, Lamar County, Texas, seeking to buy drugs as part of a police operation to identify and arrest drug dealers. After a brief conversation, Jones invited Seagroves into apartment 501 and sold Seagroves $50.00 worth of crack cocaine. The police wanted to continue using Seagroves as a confidential informant and drug buyer, so they did not arrest Jones at that time. About a week later, in an unrelated incident, Jones was arrested after fleeing from a police officer. Jones was then charged with, and convicted of, delivery of less than one gram of cocaine, while within a drug-free zone, and sentenced to ten years' imprisonment.
The trial court's judgment indicates that Jones was convicted of "delivery of a controlled substance, to-wit: cocaine of less than one gram, drug free zone," and lists the degree of offense as a "3rd degree felony." It also recites that the statute for the offense is Section 481.134 of the Texas Health and Safety Code.
It is a state jail felony to deliver less than one gram of cocaine. Tex. Health & Safety Code Ann.§ 481.102 (3)(d) (Vernon Supp. 2008), § 481.112(a), (b) (Vernon 2003). The statute that defines the offense (manufacturing, delivering, or possessing with intent to deliver a controlled substance in Penalty Group 1) is subsection (a) of Section 481.112, while subsections (b) through (f) of that statute set out the various levels of, or punishment for, the offense.
Section 481.134 of the Texas Health and Safety Code defines drug-free zones and changes either the level of, or punishment for, the offense, if committed in a drug-free zone. The applicable portions of Section 481.134 provide:
(b) An offense otherwise punishable as a state jail felony under Section 481.112 . . . is punishable as a felony of the third degree, and an offense otherwise punishable as a felony of the second degree under any of those sections is punishable as a felony of the first degree, if it is shown at the punishment phase of the trial of the offense that the offense was committed:
(1) in, on, or within 1,000 feet of premises owned, rented or leased by an institution of higher learning, the premises of a public or private youth center, or a playground;
. . . .
(d) An offense otherwise punishable under Section 481.112(b) . . . 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 the premises of a public or private youth center; or
(2) on a school bus.
(Emphasis added.)
Here, the jury found that Jones committed the offense within 1,000 feet of a playground, a drug-free zone; and, under Section 481.134(b), the state jail felony "is punishable as a felony of the third degree." Tex. Health & Safety Code Ann. § 481.134(b) (Vernon Supp. 2008). Nothing in subsection (b), however, alters the degree of offense. Section 481.134(d) can elevate a state jail felony to a third-degree felony, but nothing in the record indicates Jones committed the offense on a school bus or within 1,000 feet of the premises of a school or youth center. Therefore, subsection (d) is inapplicable. See Tex. Health & Safety Code Ann. § 481.134(d) (Vernon Supp. 2008).
We, therefore, reform the judgment in this case to reflect that the offense is a state jail felony. For the reasons given in our opinion of this date on Jones' appeal in cause number 06-08-00181-CR, we also reform the judgment in this case to recite that Section 481.112 of the Texas Health and Safety Code is the statute of offense; and, except as reformed, we affirm the trial court's judgment in this case.
Josh R. Morriss, III
Chief Justice
Date Submitted: September 14, 2009
Date Decided: October 23, 2009
Do Not Publish
1. In trial-court cause number 22511--our cause number 06-08-00181-CR--Jones was charged with possessing, with intent to deliver, between four and 200 grams of cocaine on or about November 4, 2007. In trial-court cause number 22558--this case--Jones was charged with delivering less than one gram of cocaine on or about October 29, 2007. In trial-court cause number 22653--our cause number 06-08-00183-CR--Jones was charged with delivering between one and four grams of cocaine on or about January 17, 2008.
maintain that such a generic reference to other possible witnesses does provide the required notice to Johnson. We disagree. The applicable statute requires notice of the name and address. See Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon Supp. 2008). The trial court's order in this case accordingly requires the same. While the State's generic reference to other possible witnesses was not compliance, it was some notice to Johnson.