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.
7