COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00213-CR
CEDRIK PIERT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Cedrik Piert of delivery of less than one gram of
cocaine in a drug-free zone. 2 Upon his plea of true at the trial on punishment,
the jury found the enhancement allegations true and assessed his punishment at
1
See Tex. R. App. P. 47.4.
2
See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), .112(a)–(b) (West
2010), § 481.134(b), (d) (West Supp. 2013).
sixty-five years’ confinement and a $10,000 fine. The trial court sentenced him
accordingly.
In two issues, Appellant challenges the sufficiency of the evidence to
support the jury’s verdict of guilt of delivery of less than one gram of cocaine and
the jury’s verdict that he committed the offense within a drug-free zone. Because
we hold that the evidence is sufficient to support the jury’s verdict in both
instances, we affirm the trial court’s judgment.
Summary of the Facts
Two police officers made an undercover buy of cocaine at a Valero gas
station. One of the officers asked the suspect his name, and he replied that his
name was Solo. After the purchase was complete, the suspect walked towards
some apartments and into a breezeway. The undercover officers drove off and
notified uniformed officers to make the arrest. The uniformed officers were
delayed at a signal light, however, and when they arrived at the location where
the suspect was last seen, they were unable to find him.
The next day, the undercover officers returned to the Valero station to look
for the suspect. When they spotted Appellant, the officers called uniformed
officers and gave them a description of him. When the uniformed officers
arrived, they spoke with Appellant while the undercover officers drove down the
same side of the street and identified him as the person from whom they had
bought the cocaine the day before. One of the undercover officers, Detective
Jennifer Mamola, obtained an arrest warrant, and Appellant was arrested.
2
Sufficiency of the Evidence
Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. 3 This standard gives full play
to the responsibility of the trier of fact to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. 4
The trier of fact is the sole judge of the weight and credibility of the
evidence. 5 Thus, when performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. 6 Instead, we determine whether the necessary
inferences are reasonable based upon the cumulative force of the evidence
when viewed in the light most favorable to the verdict. 7 We must presume that
3
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
4
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350
S.W.3d 588, 595 (Tex. Crim. App. 2011).
5
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393
S.W.3d at 768.
6
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
3
the factfinder resolved any conflicting inferences in favor of the verdict and defer
to that resolution. 8
We measure the sufficiency of the evidence by the elements of the offense
as defined by the hypothetically correct jury charge for the case, not the charge
actually given. 9 Such a charge is one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily restrict the State’s theories
of liability, and adequately describes the particular offense for which the
defendant was tried. 10 The law as authorized by the indictment means the
statutory elements of the charged offense as modified by the factual details and
legal theories contained in the charging instrument. 11
Delivery
In his first issue, Appellant contends that the evidence is insufficient to
support his conviction for delivery of less than a gram of a penalty group 1
substance. He argues that conflicts in the testimony of the two undercover
7
Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
8
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Temple, 390 S.W.3d at 360.
9
Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v. State, 389
S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime
are determined by state law.”).
10
Byrd, 336 S.W.3d at 246.
11
See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013);
Curry v. State, 30 S.W.3d 394, 404–05 (Tex. Crim. App. 2000).
4
officers undermine the sufficiency of the evidence, especially the identity of the
seller of the cocaine. Both undercover officers testified at trial, and both
identified Appellant as the man who sold them the cocaine. Detective Chau
Nguyen testified that he knew that the suspect and Appellant were one and the
same because on the day of Appellant’s arrest, he wore the same clothes that
the suspect had worn the previous day. Specifically, the person from whom the
officers purchased drugs was a black male, a little over six feet tall and of a thin
build, who was wearing a black or navy blue T-shirt and khaki or beige shorts
and had a Bluetooth earpiece. Detective Mamola also testified that when
Appellant was arrested, he was wearing the same clothes as the person from
whom she had bought cocaine the previous night. She described the man as a
black male, approximately six feet tall, who was wearing a black tank and jean
shorts and had a Bluetooth earpiece.
A reviewing court must defer to the trier of fact’s responsibility to resolve
conflicts in testimony, such as two-way evidence, and to draw reasonable
inferences from basic facts to ultimate facts. 12 We do not reevaluate the weight
and credibility of the evidence. We only ensure that the jury reached a rational
decision. 13 Considering the record as a whole, we must hold that the jury’s
12
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
13
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).
5
decision was rational and that the evidence is sufficient to support it. We
overrule Appellant’s first issue.
Drug-Free Zone Enhancement
An offense otherwise punishable as a state jail felony under section
481.112 of the Texas Health and Safety Code is punishable as a third-degree
felony if it is shown during trial that the offense was committed “in, on, or within
1,000 feet of . . . a public or private youth center.” 14 A “[y]outh center” is “any
recreational facility or gymnasium that . . . is intended primarily for use by
persons who are 17 years of age or younger” and “regularly provides athletic,
civic, or cultural activities.” 15
The indictment alleged in pertinent part that Appellant had delivered the
cocaine to Detective Mamola “in, on, or within 1,000 feet of the premises of a
private youth center, namely, ASI Gym, to-wit: 4051 Rosemeade Parkway,
Dallas, Denton County, Texas.” The facility is a gymnastics center where youth
are taught to do gymnastics. The jury returned an affirmative finding regarding
the drug-free zone special issue. The evidence, however, showed that the actual
name of the facility was ASI Gymnasium and that it was located across the street
from and within 1,000 feet of the Valero station, but it was in Collin County, not
Denton County. In his second issue, Appellant contends that because it was
14
Tex. Health & Safety Code Ann. § 481.134(b).
15
Id. § 481.134(a)(7).
6
impossible for the State to prove its allegations, the evidence is insufficient to
prove the offense enhancement allegation that the delivery occurred in a drug-
free zone.
We see little difference between “Gymnasium” and “Gym.” The slight
variation between the name of the facility and its name on the indictment is
sufficiently similar to slight variations in names of complainants to fall within the
same applicable rule. In Fuller v. State, 16 the indictment alleged that the
defendant committed the offense against “Olen M. Fuller,” who was his father.
The prosecution proved that the defendant injured his elderly father by hitting him
in the face with his fist. During trial, however, the father was referred to only as
“Mr. Fuller” or as “Buddy.” The prosecution presented no evidence that the
father was “Olen M. Fuller.” Consistent with the indictment’s allegation, the jury
charge instructed the jury to convict if it found that appellant committed the
offense against “Olen M. Fuller.” The Texas Court of Criminal Appeals
explained,
The federal constitutional issue in this case is whether the victim’s
name is a substantive element of the criminal offense as defined by state
law. State law, in relevant part, defines “element of the offense” as the
forbidden conduct with the required culpability. State law in Section
22.04(a)(3) further defines the offense as “injury to an elderly individual.”
State law does not define the victim’s name as a substantive element of
the offense by, for example, defining the offense as “injury to an elderly
individual named Olen M. Fuller.”
16
73 S.W.3d 250, 251 (Tex. Crim. App. 2002).
7
The prosecution’s failure to prove the victim’s name exactly as
alleged in the indictment does not, therefore, make the evidence
insufficient to support appellant’s conviction under Jackson v. Virginia.
The evidence that appellant injured the elderly victim by hitting him in the
face with his fist satisfies the Jackson v. Virginia standard because it
constitutes proof of every fact necessary to constitute the crime charged of
“injury to an elderly individual.”
We must now decide whether the evidence was sufficient to support
appellant’s conviction under Gollihar’s state law sufficiency standard. In
addressing this claim, we must recognize that Gollihar also decided that a
materiality inquiry should be made in all cases, like this one, that involve a
“sufficiency of the evidence claim based upon a variance between the
indictment and the proof” and that only a “material” variance will render the
evidence insufficient. In making a materiality inquiry applicable to all
variance cases, Gollihar criticized our decision in Pedrosa v. State, a
similar variance case, which did not apply a materiality inquiry to the
prosecution’s failure to prove the victim’s name exactly as alleged in the
indictment.
Gollihar also decided that this “materiality” inquiry requires a
determination of whether the variance deprived the defendant of notice of
the charges or whether the variance subjects the defendant to the risk of
later being prosecuted for the same offense. And, finally, Gollihar also
decided that a “hypothetically correct jury charge” takes into consideration
the material variance doctrine, meaning that “[a]llegations giving rise to
immaterial variances may be disregarded in the hypothetically correct
charge, but allegations giving rise to material variances must be included.”
In this case, the prosecution’s failure to prove the victim’s name
exactly as alleged in the indictment does not make the evidence
insufficient under Gollihar. The victim’s name is not a statutory element of
the offense. 17
If the State can go that far wrong in proving the name of the complainant,
and if the name of the complainant is so completely irrelevant to the pleading and
the proof, we would be hard-pressed to hold that pleading “Gym” rather than
17
Id. at 252–54 (citations and footnotes omitted).
8
“Gymnasium” in the name of a youth center that provides the drug-free zone
element of an enhancement paragraph is sufficiently significant to require
reversal of the conviction. Had there been evidence of another location with a
similar name that qualified as a youth center but that was outside the 1,000-foot
zone, our analysis perhaps would have been different. Here, there is nothing to
suggest that pleading the wrong name deprived Appellant of notice of the charge
against him, caused so much confusion that it impinged on his ability to prepare
an adequate defense at trial, or subjected him to being prosecuted again for the
same offense. 18
The variance between the county alleged as the location of the youth
center (Denton) and the evidence of the actual county in which the youth center
is located (Collin) is likewise immaterial, given that (1) the street address of the
youth center was provided in the indictment and (2) there was no evidence that
another youth center was located within 1,000 feet of the Valero gas station
where Appellant sold cocaine to the undercover officers. 19 Consequently, we are
compelled to overrule Appellant’s second issue.
18
See id.
19
See id.; Drouillard v. State, No. 02-04-00097-CR, 2005 WL 737019, at *1
(Tex. App.—Fort Worth Mar. 31, 2005, no pet.) (mem. op., not designated for
publication) (holding variance between enhancement allegation elevating driving
while intoxicated to a felony and the evidence thereof immaterial when Drouillard
could not have been misled that State was alleging a different offense and the
proof of the cause number, date, and trial court related to the enhancing offense
matched the allegation).
9
Conclusion
Having overruled Appellant’s two issues on appeal, we affirm the trial
court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 5, 2014
10