Johnson v. State

Full title: BERTRAM MANDEL JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 19, 2007

No. 05-05-01451-CR (Tex. App. Mar. 19, 2007)

Opinion

No. 05-05-01451-CR

March 19, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47

On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-32290-KP.

Before Justices, MOSELEY, FRANCIS, and MAZZANT.

OPINION

FRANCIS, Justice.

The trial court convicted Bertram Mandel Johnson, on his open guilty plea, of delivery of cocaine in an amount less than one gram in a drug-free zone. In his sole issue on appeal, appellant contends the trial court assessed an unauthorized punishment from the wrong punishment range. After modifying the trial court's judgment, we affirm. Appellant entered a guilty plea and signed a judicial confession tracking the language of the indictment. The State's evidence showed that responding to citizen complaints, the Grand Prairie Police launched an intensive investigation into drug transactions occurring in a drug-free zone near an elementary school. During the investigation, appellant approached an undercover officer and sold the officer crack cocaine within one thousand feet of the school. The transaction was captured on videotape. A patrol officer who participated in the investigation identified appellant in open court as the person committing the offense, testified he knew appellant from previous encounters with law enforcement, and noted appellant also had a pending felony drug case in Fort Worth. Appellant admitted selling the cocaine as a middleman in the transaction. He blamed his offense on his drug addiction, recently diagnosed bipolar disorder, and personal problems. Appellant admitted he had been to the penitentiary for a previous drug offense, was presently incarcerated in a state jail facility for a drug offense, and had several theft convictions. He asked the trial court to place him on probation and assign him to a drug treatment program. The trial court found appellant guilty "as charged," and assessed punishment at eight years in prison. On appeal, appellant contends the trial court should have treated the drug-free zone allegation as a punishment enhancement requiring a separate plea and finding of true. Because he did not enter a plea of true and the trial court made no finding on the enhancement, appellant contends the trial court erred in assessing punishment higher than the state jail felony range available for the offense without enhancement. See Tex. Pen. Code Ann. §§ 12.34-35 (Vernon 2003) (setting punishment ranges for third-degree felonies and state jail felonies). The State responds the drug-free zone allegation is an element of appellant's offense rather than an enhancement. Thus, appellant's guilty plea and judicial confession to the charged offense, the undisputed evidence showing he delivered cocaine within the proscribed zone, and the trial court's finding he was guilty as charged, establish the trial court did not err in using the punishment range for a third-degree felony. We agree with the State. The elements of an offense includes the facts of the case showing the forbidden conduct, the required culpability, any required result, and the negation of any exception of the offense. See Tex. Pen. Code Ann. § 1.07(a)(22) (Vernon Supp. 2006). In determining whether a given fact is an element of the offense, we look to and apply the plain language of the statute involved unless it is ambiguous or its application would lead to an absurd result. Calton v. State, 176 S.W.3d 231, 233 (Tex.Crim.App. 2005) (en banc). An enhancement does not change the offense or the degree of the offense. Id. Rather, after a person is convicted of an offense of a certain degree, an enhancement increases the punishment range for the offense. See id. at 233-34. In this case, the indictment charged appellant did, "unlawfully and knowingly deliver . . . COCAINE, in an amount by aggregate weight, including any adulterants or dilutants, of less than 1 gram to J. ASKIN, and further, said possession was in, on, or within 1,000 feet of any real property that is owned, rented or leased to a school or school board. . . ." Delivering cocaine in an amount less than one gram is ordinarily a state jail felony. See Tex. Health Safety Code Ann. § 481.112(a), (b) (Vernon 2003). When the offense is committed within a drug-free zone, the offense may be raised to a higher degree or the punishment may be enhanced depending upon which type of drug-free zone is involved and the amount of controlled substance at issue. See Tex. Health Safety Code Ann. § 481.134 (Vernon Supp. 2006) (providing distinct treatment for drug offenses committed in drug-free zones). Appellant contends his offense triggers application of subsections 481.134(a) and (b). Subsection (a) merely provides a set of definitions used throughout section 481.134. Subsection (b) states: [a]n offense otherwise punishable as a state jail felony under Section 481.112 . . . is punishable as a felony of the third 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; or (2) in, on, or within 300 feet of the premises of a public swimming pool or video arcade facility. Tex. Health Safety Code Ann. § 481.134(b) (Vernon Supp. 2006). In this case, however, appellant committed his offense in the vicinity of an elementary school rather than near the types of facilities described in subsection (b). The Legislature has chosen to treat drug offenses occurring in school-related drug-free zones differently than drug offenses occurring near other types of facilities frequented by minors. See Young v. State, 14 S.W.3d 748, 752-53 (Tex.Crim.App. 2000) (interpreting legislative history of section 481.134 as showing the Legislature's "continued intent to treat separately those offenses occurring within the drug-free zones surrounding schools or school property"). The offense of delivery of cocaine in an amount less than one gram in a school-related drug-free zone triggers application of subsection 481.134(d) which provides: [a]n 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. . . .

Tex. Health Safety Code Ann. § 481.134(d) (Vernon Supp. 2006).

The language of section 481.134(d) is not ambiguous and applying it to appellant's case does not lead to an absurd result. See Harris v. State, 125 S.W.3d 45, 50 (Tex.App.-Austin 2003, pet. dism'd, untimely filed) (concluding section 481.134(d) not ambiguous). The statute clearly and unambiguously provides that the forbidden conduct of delivering cocaine within the proscribed vicinity of a school is a third-degree felony offense. Delivery of less than one gram of cocaine in a school-related drug-free zone is a separate and distinct offense from delivery of the same amount of cocaine outside a school-related drug-free zone. Id. Thus, the commission of a drug offense in other venues frequented by minors enhances the punishment for the offense while the commission of a drug offense on or near school property raises the degree of the offense. Because the drug-free zone allegation was part of appellant's forbidden conduct and changes the degree of the offense, we conclude the trial court did not err in treating it as an element of the offense, rather than an enhancement, and proceeding accordingly. See Calton, 176 S.W.3d at 233. Thus, it was proper to adjudicate the drug-free zone allegation as part of appellant's guilty plea rather than by entering a separate plea and making a finding of true during punishment. See Harris, 125 S.W.3d at 51 (concluding trial court did not err in submitting jury issue of drug-free zone violation during guilt/innocence phase of trial). Thus, we conclude the trial court sentenced appellant properly from the punishment range for a third-degree felony. We overrule appellant's sole issue. Although not set out as an issue, nothing on the face of the trial court's judgment indicates appellant's offense occurred within a drug-free zone. The written judgment merely reflects appellant was convicted of the third-degree felony of "unlawful delivery of a controlled substance, to-wit: cocaine." Because delivery of cocaine within a drug-free zone is a different offense from delivery of cocaine not involving a drug-free zone, the trial court's judgment does not accurately reflect appellant's conviction. See id. at 50. We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to reflect appellant was convicted of unlawful delivery of a controlled substance, to-wit: cocaine in a drug-free zone. As modified, we affirm the trial court's judgment.