Opinion
No. 05-09-01046-CR
Opinion Filed April 1, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-00823-PM.
Before Justices O'NEILL, LANG, and MYERS.
MEMORANDUM OPINION
Following a plea of not guilty, appellant Joseph Jorey Hightower a/k/a Joseph Jeroy Hightower was convicted by a jury of possession with intent to deliver a controlled substance, cocaine, in the amount of four grams, but less than 200 grams. Additionally, in response to a special issue in the charge of the court, the jury found the offense occurred "in, on, or within 1,000 feet of a youth center, The Larry Johnson Recreational Center." Appellant pleaded true to one enhancement paragraph, and the trial court found the enhancement paragraph true. Punishment was assessed by the trial court at twenty-five years' confinement. In two issues on appeal, appellant contends the evidence is not legally or factually sufficient "to support the jury's finding on the special issue that the offense occurred within 1,000 feet of a `youth center.'" For the reasons below, we decide against appellant on his two issues. Because the law to be applied in this case is well-settled, we issue this memorandum opinion. See Tex. R. App. P. 47.2, 47.4. The trial court's judgment is affirmed.
Appellant's middle name appears as "Jorey" in the trial court's judgment, the parties' appellate briefs, and some portions of the record. However, other portions of the record, including the indictment and the charge of the court, show appellant's middle name as "Jeroy."
I. FACTUAL AND PROCEDURAL BACKGROUND
Dallas police officer Jeffrey Jacobs testified at trial that on April 13, 2005, he was on bike patrol with police officer Derrick Wright in the vicinity of the Larry Johnson Recreation Center in Dallas County. At approximately 3 p.m., Jacobs observed appellant taking part in a "hand-to-hand drug transaction" in which appellant handed a bag of marijuana to another man. Jacobs testified the transaction occurred in a park adjacent to the Larry Johnson Recreation Center. When Jacobs and Wright tried to arrest appellant, appellant "attempted to run off." Wright pulled appellant to the ground and struggled to handcuff him. During the struggle, appellant pulled from his pocket a large "baggie" containing a portion of a "cookie" of cocaine. The cocaine was admitted into evidence at trial. Also, admitted into evidence at trial were a map and photographs of the Larry Johnson Recreation Center and the surrounding area. Jacobs identified the Larry Johnson Recreation Center and the location where the transaction occurred on the map and in the photographs. Jacobs testified that the area is known as a "drug-free zone" and that appellant was dealing drugs in the center of a "drug-free zone." Wright testified as to the same facts Jacobs had described and, using the same map and photographs, identified the Larry Johnson Recreation Center and the location where the transaction at issue occurred. A lab report from the Southwestern Institute of Forensic Science and a stipulation of evidence signed by appellant regarding that report were admitted into evidence and read to the jury. The lab report stated that the cocaine seized from appellant weighed 14.1 grams. Officer Kurt Carroll testified he is a detective with the Dallas Police Department Narcotics Division and has been qualified as an expert on issues pertaining to drugs. He testified he did not "work this case," but was familiar with some of the facts. Carroll stated that in his opinion, the amount of cocaine seized from appellant was "more than what is for personal use" and was "possessed with the intent to deliver." Additionally, Carroll testified in part on direct examination as follows:Q. Okay, now, are you familiar-you take a look at this map right behind you, . . . are you familiar with that area of Dallas?
A. Yes, sir.
Q. And do you see the Larry Johnson Recreation Center on there?
A. I do.
Q. Do you-do you have personal knowledge of that area, have you been there before?
A. Yes, many times.
Q. And you work [sic] in the Narcotics Division there before?
A. Yes. And I did my Patrol there as well.
Q. To your knowledge, is that a drug-free zone, that park?
A. Yes, sir, within 1,000 feet, yes, sir.
Q. Okay.
A. You mean in a literal sense-it is not a drug-fee zone by any stretch of the imagination.
Q. I mean legally speaking?
A. It is supposed to be a drug-free zone, yes, sir.
Q. It is supposed to be drugs-legally the whole city is supposed to be a drug-free zone?
A. Correct.
Q. Drugs aren't legal, but there are special circumstances when you are dealing with youth centers and school yards?
A. Yes, sir.
Q. To your knowledge that is one such area?
A. Yes, sir.
Q. If you are in a thousand feet and you are dealing drugs of any kind, that is a circumstance?
A. Correct.Prior to the start of trial, the State filed a notice of its intention to submit a "special plea of possession in, on, or within a drug-free zone" pursuant to section 481.134(c)(1) of the Texas Health and Safety Code. Tex. Health Safety Code Ann. § 481.134(c)(1) (Vernon Supp. 2009). In that notice, the State contended in relevant part "[t]he evidence will show that the possession was in, on, or within 1,000 feet of a Youth Center and a Playground, to wit: The Larry Johnson Recreation Center and Willie Mae Butler Park." At the guilt-innocence phase of trial, the charge of the court included the following:
In answering the following Special Issue, you are instructed that "youth center" means 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, as defined in Section 481.134, Texas Health Safety Code.Do you find beyond a reasonable doubt that on April 13, 2005, JOSEPH JEROY HIGHTOWER's said possession with intent to deliver or possession of a controlled substance, to-wit: Cocaine, four grams or more but less than 200 grams occurred in, on, or within 1,000 feet of a youth center, The Larry Johnson Recreational Center, located at 5200 Wullschleger, Dallas, Dallas County, Texas? The jury found appellant guilty of the offense of possession with intent to deliver a controlled substance and answered "yes" to the special issue. Following the trial court's assessment of punishment, appellant filed an untimely notice of appeal. Subsequently, this Court dismissed appellant's original appeal, cause number 05-06-01369-CR, for want of jurisdiction. By mandate issued April 30, 2009, the Texas Court of Criminal Appeals granted appellant's request for an out-of-time appeal.
II. LEGAL AND FACTUAL SUFFICIENCY
Both appellant and the State address appellant's two issues together, and we proceed likewise. Appellant summarizes his two issues as follows: "The evidence is factually and legally insufficient to support the jury's finding on the special issue because the jury's finding was not rationally justified when the evidence is viewed in a neutral light or in the light most favorable to the finding that the offense occurred within 1,000 feet of a `youth center' as defined in the court's charge." Appellant asserts the State had the burden of producing some evidence to show that the Larry Johnson Recreation Center is a "youth center" as defined in the Texas Health and Safety Code. He contends the State failed to present any evidence that the Larry Johnson Recreation Center is a recreational facility or gymnasium intended primarily for use by persons who are seventeen years of age or younger or that it regularly provides athletic, civic, or cultural activities. According to appellant, "[t]he evidence is insufficient to sustain the jury's finding of a drug-free zone for the jury had no evidence that the zone or area or recreation center met the definition of a `youth center.'" Further, appellant asserts he was harmed by the finding at issue because his punishment was increased by five years as a result of that finding. The State responds "[t]he evidence is legally and factually sufficient to support the jury's affirmative finding on the drug-free zone allegation." The State asserts "[t]wo police officers testified without objection and without contradiction that appellant committed the offense in a drug-free zone."A. Standard of Review
When reviewing the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000) (applying Jackson legal sufficiency standard to review of evidence supporting drug-free zone finding). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). Even if legally sufficient, evidence can be deemed factually insufficient in two ways: (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). In conducting a factual sufficiency review, we must consider all the evidence in a neutral light and may find the evidence factually insufficient only when necessary to prevent a manifest injustice. Laster, 275 S.W.3d at 518. We may substitute our judgment for the fact-finder's on the issues of the weight and credibility to be given to witness testimony, "albeit to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).B. Applicable Law
A person commits an offense if he possesses cocaine with intent to deliver. Tex. Health Safety Code Ann. § 481.112(a). Pursuant to Texas Health and Safety Code section 481.112(d), such an offense is a first degree felony if the amount of cocaine to which the offense applies is four grams or more, but less than 200 grams. Id. § 481.112(d). Section 481.134 of the health and safety code, titled "Drug-Free Zones," provides in relevant part that if an offense otherwise punishable under section 481.112(d) is shown at trial to have been committed "in, on, or within 1,000 feet of the premises of a school, the premises of a public or private youth center, or a playground," the minimum term of confinement or imprisonment is increased by five years and the maximum fine for the offense is doubled. Id. § 481.134(c)(1). "Youth center" is defined as "any recreational facility or gymnasium that: (A) is intended primarily for use by persons who are 17 years of age or younger; and (B) regularly provides athletic, civic, or cultural activities." Id. § 481.134(a)(7). Section 481.135 of the health and safety code specifically provides for the use of certain maps as prima facie evidence of the locations or boundaries of drug-free zones, but states that it does not prevent the prosecution from "introducing or relying on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 481.134." Id. § 481.135(d)(1).C. Application of Law to Facts
Appellant's sole argument on appeal is that the State did not meet its burden to produce "some evidence" to show that the Larry Johnson Recreation Center is a "youth center" as defined in the health and safety code. In support of that argument, appellant cites Ingram v. State, 213 S.W.3d 515 (Tex. App.-Texarkana 2007, no pet.), and asserts the court in that case "held the State to a strict following of the definitions in the drug-free zone statute." In Ingram, an undercover police officer testified the defendant sold him drugs within 1000 feet of a playground owned by the Turner Alumni Association, and the State sought a punishment enhancement pursuant to section 481.134 of the health and safety code. Id. at 518. Section 481.134 defines "playground" as an outdoor facility that, in relevant part, is "open to the public." Id. at 517. The court in Ingram stated that the evidence showed ownership and operation of the playground at issue by a type of group that is "generally a private organization," and that "[t]he question is actually whether the jury could reasonably infer from the evidence before it the facility was public in nature." Id. at 518-19. The court reasoned, "The statute contains no presumption in that regard, and we cannot assume from the evidence provided, or from any reasonable inferences raised from that evidence, that the facility was one that was open to the public." Id. at 519. Therefore, the court concluded there was no evidence to support the enhancement of the defendant's punishment under section 481.134. Id. However, because the facts of Ingram are distinguishable from those of the case before us, we do not find Ingram instructive. Here, unlike in Ingram, the record contains no evidence showing that the Larry Johnson Recreation Center does not meet the definition of "youth center" in section 481.134(a)(7). See Tex. Health Safety Code Ann. § 481.134(a)(7). As described above, Carroll testified at trial that he had personal knowledge of the area in which the Larry Johnson Recreation Center is located, had been to that area "many times," and had patrolled in that area in the past. Further, Carroll testified on direct examination with regard to that area as follows:Q. It is supposed to be drugs-legally the whole city is supposed to be a drug-free zone?
A. Correct.
Q. Drugs aren't legal, but there are special circumstances when you are dealing with youth centers and school yards?
A. Yes, sir.
Q. To your knowledge that is one such area?
A. Yes, sir.Carroll's uncontradicted testimony constituted evidence from which the jury could reasonably infer that the Larry Johnson Recreation Center was a "youth center" pursuant to section 481.134. Id. § 481.134(a)(7), (c)(1); see also id. § 481.135(d)(1) (State may rely on "any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 481.134"); cf. Fluellen v. State, 104 S.W.3d 152, 159-60 (Tex. App.-Texarkana 2003, no pet.) (school superintendent's uncontradicted testimony that school district owned property on which offense occurred was sufficient to support punishment enhancement pursuant to section 481.134). Thus, a rational jury could have so found beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19. Further, such evidence is not so weak as to render the jury's verdict manifestly unjust. See Laster, 275 S.W.3d at 518. Accordingly, we conclude the evidence is legally and factually sufficient to support the jury's finding on the special issue in dispute. See id.; Jackson, 443 U.S. at 318-19. Appellant's two issues are decided against him.