Kevin Royce Peek v. State , 494 S.W.3d 156 ( 2015 )

Opinion filed April 16, 2015
In The
Eleventh Court of Appeals
__________
No. 11-12-00319-CR
__________
KEVIN ROYCE PEEK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR21821
OPINION
The jury convicted Kevin Royce Peek of possession of four grams or more
but less than 200 grams of methamphetamine with the intent to deliver in a drug-
free zone. Appellant pleaded true to two enhancement allegations. The jury found
both enhancement allegations to be true, and it assessed Appellant’s punishment at
confinement for life in the Institutional Division of the Texas Department of
Criminal Justice. Appellant challenges his conviction in five issues. We affirm.
Background Facts
Appellant does not challenge the sufficiency of the evidence to support his
conviction for possession of four grams or more but less than 200 grams of
methamphetamine with intent to deliver. He does challenge the sufficiency of the
evidence to establish that he committed the offense in a drug-free zone. We will
briefly summarize the evidence at trial to provide context for Appellant’s issues on
appeal.
On November 9, 2011, Detective Shawn Dibrell and Officer Stephanie Hale
of the Early Police Department were working drug interdiction in an unmarked
police vehicle. At about 3:15 p.m., they observed a vehicle that had an expired
registration. The officers followed the vehicle. Detective Dibrell activated his
lights to stop the driver of the vehicle. The officers saw three occupants in the
vehicle. Officer Dibrell observed the front-seat passenger moving from side to
side in the vehicle. Officer Dibrell believed that the passenger might be grabbing a
weapon or hiding something. Eventually, the driver pulled the vehicle to the side
of the road and stopped. Detective Dibrell called for backup. Chief David Mercer
and Officer Amanda Williams arrived at the scene.
The officers cautiously approached the vehicle and contacted the occupants.
Detective Dibrell turned on his audio recorder. Appellant was in the driver’s seat;
Appellant’s brother, James Kirby Peek, was in the front passenger’s seat; and
Hector Gonzales was in the backseat behind Kirby. Appellant reached under his
lap, removed a syringe, and dropped it to the floor. For safety reasons, the officers
had Appellant, Kirby, and Gonzales exit the vehicle, and the officers handcuffed
them. The officers searched Appellant, Kirby, and Gonzales for weapons.
Detective Dibrell found marihuana and a Q-tip in one of Appellant’s pants pockets.
Detective Dibrell testified that cotton from Q-tips is commonly used as a filter in
connection with injecting methamphetamine. Officer Williams found a bag that
2
contained three small Ziploc bags full of methamphetamine and twenty-nine empty
Ziploc bags in one of Kirby’s shoes. The three bags contained about sixteen grams
of methamphetamine. Testing of the substances at the Department of Public Safety
Laboratory in Abilene confirmed that the seized substances were
methamphetamine. Officer Hale found a pipe that contained methamphetamine
residue in one of Gonzales’s shoes.
Appellant told Detective Dibrell that he felt sick and dehydrated. Detective
Dibrell said that Appellant turned “white as a ghost” and could barely stand up.
Detective Dibrell gave Appellant something to drink.
Detective Dibrell gave Miranda1 warnings to Appellant, Kirby, and
Gonzales. They all told Detective Dibrell that they wanted to talk to him.
Appellant told Detective Dibrell that he had driven Kirby and Gonzales to
Granbury so that Kirby and Gonzales could obtain methamphetamine. Appellant
told Detective Dibrell that he knew methamphetamine was inside the vehicle.
On the following day, Detective Dibrell took a recorded statement from
Appellant. During the statement, Appellant acknowledged that he took Kirby and
Gonzales to Cindy Webb’s trailer house in Granbury so that Kirby and Gonzales
could get methamphetamine from Webb. According to Appellant, he believed that
Kirby planned to get about four grams of methamphetamine from Webb. After the
group arrived at Webb’s house, Kirby left with Webb and two men to obtain
methamphetamine. Appellant and Gonzales stayed at Webb’s house. Kirby and
the others returned to Webb’s house about five hours later. Appellant said that, at
that time, he smoked methamphetamine at Webb’s house. Appellant told
Detective Dibrell that both Kirby and Gonzales obtained methamphetamine from
Webb. Appellant told Detective Dibrell that he knew Kirby had methamphetamine
inside the vehicle.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Detective Dibrell agreed that sixteen grams of methamphetamine is a “fairly
substantial” amount. He said that such an amount was intended for distribution as
opposed to individual use. Detective Dibrell said that sixteen grams of
methamphetamine has a value of at least $1,600. Detective Dibrell testified that
Ziploc bags, such as the twenty-nine empty bags that were found in Kirby’s shoe,
are used to package methamphetamine for distribution. Detective Dibrell said that
he had “no doubt” that the amount seized was intended for distribution.
Kirby testified that the methamphetamine belonged to him. He said that
Appellant did not know anything about the methamphetamine. Kirby testified that
he planned to distribute the bags of methamphetamine to two people.
Detective Dibrell testified about the location of the stop. He said that
Appellant stopped his vehicle “directly across” from Early High School.
Detective Dibrell indicated that the stop occurred less than 1,000 feet from school
property.
Analysis
Appellant presents five issues for review. In his first two issues, Appellant
contends that the trial court erred (1) in defining “intentionally” and “with intent”
in terms of the nature of the conduct rather than the result of the conduct in the
abstract portion of the jury charge and (2) in failing to apply a result-of-conduct
definition of “intentionally” and “with intent” to the law of parties issue in the
application portion of the jury charge. In his third issue, Appellant contends that
his trial counsel rendered ineffective assistance in failing to request that the jury
charge provide a definition of “intentionally” and “with intent” in terms of the
nature of the result only and to request that those definitions be applied to the law
of parties as set forth in the application paragraph of the charge. In his fourth
issue, Appellant contends that the trial court erred in refusing to allow him to
impeach the credibility of Detective Dibrell by eliciting testimony related to
4
Detective Dibrell’s work history and to an allegation that Detective Dibrell
tampered with evidence. In his fifth issue, Appellant contends that the evidence
was insufficient to establish that he committed the offense within 1,000 feet of the
premises of a school.
A. Jury Charge Issues
The indictment alleged that, on or about November 9, 2011, Appellant “did
then and there knowingly possess, with intent to deliver, a controlled substance,
namely, Methamphetamine, in an amount of four grams or more but less than 200
grams.” The indictment further alleged that “[appellant] committed the above
offense within 1,000 feet of the premises of a school, to wit: Early High School,
115 Sudderth, Early, Texas.”
The trial court stated in the jury charge that “[o]ur law provides that a person
commits an offense if he knowingly possesses with intent to deliver a controlled
substance.” The trial court included the following definitions of “intentionally”
and “knowingly” in the charge:
A person acts intentionally, or with intent, with respect to the
nature of his conduct when it is his conscious objective or desire to
engage in a conduct.
A person acts knowingly, or with knowledge, with respect to the
nature of his conduct or to the circumstances surrounding his conduct
when he is aware of the nature of his conduct or that the
circumstances exist.
The trial court also provided instructions related to the law of parties. The trial
court stated as follows:
A person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of another
for which he is criminally responsible, or by both.
A person is criminally responsible for an offense committed by the
conduct of another if, acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or
5
attempts to aid the other person to commit the offense. Mere presence
alone will not constitute one a party to an offense.
The trial court submitted a law of parties issue in the application paragraph of the
charge.
Section 6.03 of the Penal Code provides that “[a] person acts intentionally,
or with intent, with respect to the nature of his conduct or to a result of his conduct
when it is his conscious objective or desire to engage in the conduct or cause the
result.” TEX. PENAL CODE ANN. § 6.03(a) (West 2011). Thus, with respect to the
definition of “intent,” Section 6.03(a) delineates two “conduct elements” that may
be involved in an offense: (1) the nature of the conduct and (2) the result of the
conduct. See McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). As
shown above, the trial court in this case defined “intent” in terms of the nature of
the conduct and not in terms of the result of the conduct.
Appellant argues that the trial court erred in failing to define “intentionally”
in terms of the result of the conduct in the abstract portion of the charge and in
failing to apply a result-of-conduct definition to the law of parties. We disagree.
A nature-of-conduct crime, such as gambling or assault by threat, is criminalized
because the nature of the act itself is unlawful, regardless of any result that might
occur. McQueen, 781 S.W.2d at 603; Zuliani v. State, 383 S.W.3d 289, 298 (Tex.
App.—Austin 2012, pet. ref’d). “[T]he act itself is the gravamen of the offense.”
Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011). When specific acts
are criminalized because of their very nature, a culpable mental state must apply to
committing the act itself. McQueen, 781 S.W.2d at 603. A result-of-conduct
crime, such as murder or injury to a child, is one in which unspecified conduct is
criminalized because of its result. Id.; Zuliani, 383 S.W.3d at 298. When
unspecified conduct is criminalized because of its result, a culpable mental state
must apply as to that result. McQueen, 781 S.W.2d at 603.
6
An offense may be both result and nature oriented. Id.; Murray v. State, 804
S.W.2d 279, 281 (Tex. App.—Fort Worth 1991, pet. ref’d). In such cases, the trial
court should submit the complete statutory definition of “intentionally” and
“knowingly” so that the jury can consider both the result of the defendant’s
conduct and the nature of his conduct. Murray, 804 S.W.2d at 281. However, if
the offense is either only a nature-of-conduct offense or a result-of-conduct
offense, the trial court should submit statutory definitions of “intentionally” or
“knowingly” that are limited to the respective culpable mental state required.
Cook v. State, 884 S.W.2d 485, 490-91 (Tex. Crim. App. 1994); Murray, 804
S.W.2d at 281.
Section 481.112(a) of the Health and Safety Code provides that a person
commits the offense of possession of a controlled substance with intent to deliver it
if he “knowingly . . . possesses with intent to deliver a controlled substance listed
in Penalty Group 1.” TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West
2010). Methamphetamine is listed in Penalty Group 1. See id. § 481.102(6).
Section 481.112(a) criminalizes the act of possessing a controlled substance with
intent to deliver it. The gravamen of the offense is the conduct of possessing a
controlled substance with the intent to deliver it. The act or conduct of
“knowingly” possessing a controlled substance with intent to deliver it is punished,
regardless of any result. The offense focuses on the nature of the defendant’s
conduct and not any result that might occur. Because the offense focuses on the
nature of the conduct, we conclude that, as alleged in the indictment in this case,
the offense of possession of methamphetamine with intent to deliver it is a nature-
of-conduct offense. Therefore, the trial court did not err in defining “intentionally”
and “knowingly” in the jury charge as those definitions related to the offense
charged in the indictment.
7
At trial, Appellant presented a defense that he believed the purpose of the
trip to Granbury was for Kirby to obtain money from Webb so that Kirby could
pay his rent. Appellant attempted to establish that he did not know Kirby and
Gonzales planned to obtain methamphetamine from Webb or actually obtained it
from her. Appellant essentially contends that, because the trial court defined
“intentionally” in terms of the nature of the conduct, the charge improperly
allowed the jury to convict him under the law of parties if the jury concluded that
he intentionally drove the vehicle, even if he was mistaken about the purpose of the
trip. We disagree with Appellant’s contention.
Section 7.01(a) of the Penal Code provides that “[a] person is criminally
responsible as a party to an offense if the offense is committed by his own conduct,
by the conduct of another for which he is criminally responsible, or by both.”
PENAL § 7.01(a). Section 7.02(a)(2) provides that “[a] person is criminally
responsible for an offense committed by the conduct of another if[,] acting with
intent to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense.” Id.
§ 7.02(a)(2). When a party is not the primary actor, the State must prove conduct
constituting an offense plus an act by the defendant done with the intent to promote
or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985);
Schnidt v. State, 357 S.W.3d 845, 855 (Tex. App.—Eastland 2012, pet. ref’d).
Section 7.02(a) contains the culpable mental state of “intent.” Specifically, the
statute requires the State to prove that the defendant committed an act with the
“intent” to promote or assist the commission of the offense. PENAL § 7.02(a)(2).
8
In this case, the trial court’s instructions on the law of parties in the abstract
section of the jury charge tracked the language of the relevant statutory provisions.
The trial court stated as follows in the application paragraph:
Now, if you find from the evidence beyond a reasonable doubt
that . . . KEVIN ROYCE PEEK . . . (either acting alone or with
JAMES KIRBY PEEK or HECTOR GONZALES, with the intent to
promote or assist the commission of the offense of Possession of a
Controlled Substance with the Intent to Deliver, if any, solicited,
encouraged, directed, aided or attempted to aid JAMES KIRBY
PEEK or HECTOR GONZALES, to commit the offense, if he did),
did then and there knowingly possess, with intent to deliver, a
controlled substance, namely, methamphetamine, in an amount of four
grams or more but less than 200 grams, then you will find the
defendant “guilty” as charged of Possession of a Controlled Substance
with Intent to Deliver, as set forth in the indictment.
The language in the application paragraph followed the appropriate statutory
language for the law of parties. See PENAL § 7.02(a)(2).
The court’s charge did not allow the jury to convict Appellant based only on
a finding that he intentionally drove the vehicle. Instead, the trial court correctly
charged the jury on the culpable mental state: Appellant must have acted with the
“intent” to promote or assist the commission of the charged offense. See id. As to
the law of parties, the charge required the State to prove that Kirby or Gonzales
engaged in conduct that constituted the charged offense and that Appellant
committed an act with the intent to promote or assist such conduct. Beier, 687
S.W.2d at 3. As stated above, the trial court instructed the jury that “[a] person
acts intentionally, or with intent, with respect to the nature of his conduct when it is
his conscious objective or desire to engage in a conduct.” As charged, the jury
could not convict Appellant under the law of parties unless it found that Appellant
acted with the conscious objective or desire to promote or assist Kirby or Gonzales
in the commission of the offense. If, as Appellant claimed, he did not know that
9
Kirby and Gonzales planned to obtain or had obtained methamphetamine, he could
not have formed the requisite intent to promote or assist them in the commission of
the offense, and the jury could not have convicted him under the court’s charge.
Accordingly, we conclude that the jury charge was not erroneous. Appellant’s first
and second issues are overruled.
B. Assistance of Counsel
To determine whether Appellant’s trial counsel rendered ineffective
assistance, we must first determine whether Appellant has shown that his counsel’s
representation fell below an objective standard of reasonableness and, if so, then
determine whether there is a reasonable probability that the result of the
proceeding would have been different but for his counsel’s errors. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55–57
(Tex. Crim. App. 1986). We must indulge a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance, and
Appellant must overcome the presumption that, under the circumstances, the
challenged action could be considered sound trial strategy. Strickland, 466 U.S. at
689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). An allegation of
ineffective assistance of counsel must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Thompson v.
State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
In his third issue, Appellant contends that his trial counsel rendered
ineffective assistance in failing to request that the jury charge provide a definition
of “intentionally” and “with intent” in terms of the result of conduct and in failing
to request that those definitions be applied to the law of parties as set forth in the
charge. Trial counsel is not ineffective for failing to make futile objections or
request instructions that are not required. Wood v. State, 4 S.W.3d 85, 91 (Tex.
App.—Fort Worth 1999, pet. ref’d). To prevail on an ineffective assistance claim
10
for failing to make an objection, an appellant must show that the trial court would
have erred in overruling the objection. Vaughn v. State, 931 S.W.2d 564, 566
(Tex. Crim. App. 1996). Likewise, to show counsel was ineffective for failing to
request a jury instruction, an appellant must show that he was entitled to the
instruction. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000). We
have already held that the trial court’s instructions on intent and the law of parties
were not erroneous. Accordingly, Appellant cannot show that the trial court would
have erred in overruling an objection to the instructions or that he was entitled to
instructions that defined intentionally in terms of the result of conduct.
Appellant has not shown that his counsel rendered ineffective assistance.
Appellant’s third issue is overruled.
C. Exclusion of Impeachment Evidence
Appellant contends in his fourth issue that the trial court erred in excluding
evidence that Detective Dibrell left the Early Police Department after being
demoted there and that Detective Dibrell allegedly tampered with evidence in
another case. Appellant asserts that this evidence was admissible to impeach
Detective Dibrell’s credibility as a witness.
We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim.
App. 2006). We will not reverse a trial court’s ruling unless it falls outside the
zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim.
App. 2002).
The exclusion of potential impeachment evidence touches upon an accused’s
Confrontation Clause rights. See Davis v. Alaska, 415 U.S. 308, 315–16 (1974);
Pointer v. Texas, 380 U.S. 400, 403–04 (1965); Castillo v. State, 939 S.W.2d 754,
758 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d). The accused should be
allowed great latitude to show a witness’s bias, prejudice, or motives to testify
11
falsely. Chambers v. State, 866 S.W.2d 9, 26–27 (Tex. Crim. App. 1993);
Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982). The
proponent of impeachment evidence bears the burden of demonstrating the
relevance of the proffered evidence to the issue of bias or prejudice. Chambers,
866 S.W.2d at 26–27. Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” TEX. R. EVID.
401. The credibility of a witness may be attacked by evidence that the witness is
slanting his testimony against or in favor of a party as a result of a personal interest
or bias in the cause. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App.
1995). The proponent of the evidence must establish a specific connection
between the witness’s testimony and the cause that discloses an actual bias or
motive. Id. Determining the limits of cross-examination to show bias is a matter
that rests within the sound discretion of the trial court. Chambers, 866 S.W.2d at
27.
Outside the presence of the jury, Appellant’s counsel informed the trial court
that “we intend as impeachment purposes to bring up some of the circumstances
regarding why Mr. Dibrell left the Early Police Department to go to work in Mills
County.” Appellant’s counsel stated, “specifically, Your Honor, the issues that we
would like to bring up would be basically that Mr. Dibrell quit on his own after
being demoted, and also we understand there has been allegations that Mr. Dibrell
tampered with evidence.” The trial court stated that, “if there is any allegation of
tampering, we are going to take that up outside of the presence of the jury.”
Appellant’s counsel stated that, “regarding evidence to that matter, Chief Mercer
will probably be our witness.”
Appellant’s counsel questioned Detective Dibrell on voir dire examination.
During that examination, Detective Dibrell testified that he left his employment
12
with the Early Police Department voluntarily and that he was not fired from the
department. He said that he had conflicts with Chief Mercer with respect to the
manner in which Chief Mercer conducted the department’s operations.
Detective Dibrell made his concerns known to Chief Mercer. Detective Dibrell did
not believe that Chief Mercer ever questioned his honesty with respect to the
concerns that he raised. Appellant’s counsel tried to establish that Detective
Dibrell was demoted from his investigative duties to patrol duties. Detective
Dibrell testified that Chief Mercer threatened to demote him but never demoted
him. Detective Dibrell said that he “[went] back to patrol” because the department
was shorthanded in patrol.
Appellant’s counsel also asked Detective Dibrell questions about whether
anyone had ever alleged that he tampered with evidence. The following exchange
occurred:
Q. Now, to your knowledge, since you left the Early Police
Department, has there been an allegation regarding that perhaps you
tampered with evidence?
....
A. Yeah, I hear it all the time. I hear stuff since I have been an
officer.
Q. Is there a specific allegation regarding a Mr. Box or a name
similar to that?
A. Not that I’m aware of. If you clarify who Mr. Box is, I might
could be a little bit more specific with my answer.
Q. So, you don’t know of any specific allegation of tampering
with evidence that has been raised since you left the Early Police
Department?
A. Yes, I am. I mean, once I quit, the rumor was I got fired for
tampering with evidence. I mean, that comes with -- that is the nature
of the beast in narcotics.
13
Q. Have you -- has there been a specific person or event named
with that rumor?
A. Not to my knowledge. I haven’t been able to figure out where
it stemmed from, but I would hope that if the rumor was true, I would
hope I would have been investigated and would have been found
guilty or innocent, one way or another because --
Q. So, you understand or, I guess, maybe you’ve heard the same
rumors I have?
A. Well, I’ve heard rumors about every narcotics officer, me
included. So, I take a firm stance against dirty officers. I will be the
first to go after a dirty officer . . . .
Q. Has there been an investigation that you know of regarding
allegations made against you for tampering with the evidence?
A. The only thing that I could think of is, one time somebody
came in. We seized a cell phone, and he was a third party, saying,
“Hey, my coworker” -- “The guy, my employee, said that you used
his cell phone to make a phone call,” or something like that, or added
a call or something like that. But that was nothing. That is the only
thing that I can think of, because that was a major case I had at the
time that was pending, that did raise a big stink, because that one was
tied in with a huge methamphetamine case.
Q. No official proceedings or complaints have been brought
against you since you left the Early Police Department?
A. No, sir, and I would like to know if you have any.
[Defense Counsel]: Your Honor, we have no further questions.
The judge then stated that, “[f]rom what I have heard, unless you have other
evidence to put on, then I am not going to allow the questions.” Appellant’s
counsel stated that “we would like to bring this evidence up in the trial regarding
impeachment of Mr. Dibrell. We believe that it does affect his credibility.” The
judge ruled, “I’m not going to allow the evidence, unless you have further proof of
an actual event or events, other than just speculation and rumor.” Appellant did
14
not call Chief Mercer to testify on the issue. Nor did Appellant present any other
evidence on the issue.
Appellant contends in his brief that Detective Dibrell could have believed
that the more helpful he was in obtaining convictions in Brown County by giving
testimony that was favorable to the State, the less likely it was that the district
attorney’s office would investigate the tampering allegations against him. Based
on this contention, Appellant argues that the excluded testimony showed a
potential bias or motive on the part of Detective Dibrell to provide testimony that
was favorable to the prosecution and that, therefore, the testimony was admissible
to impeach Detective Dibrell’s credibility. We disagree.
As the trial court concluded, Appellant presented nothing more than
“speculation and rumor” on the impeachment issues. Appellant did not present any
evidence that identified any person who had made a tampering allegation or that
showed the details of any tampering allegation. Nor did Appellant offer any
evidence that Detective Dibrell had been investigated on a tampering allegation in
the past or that he faced a future investigation. Additionally, Appellant did not
show that Detective Dibrell had been demoted at the Early Police Department for
any reason, much less because of a tampering charge. Based on the speculative
nature of the proffered evidence, the trial court could have reasonably concluded
that Appellant failed to meet his burden to demonstrate the relevance of the
evidence to the issue of bias or motive to testify falsely. Therefore, we conclude
that the trial court did not abuse its discretion in excluding the evidence.
Appellant’s fourth issue is overruled.
D. Sufficiency Challenge
In his fifth issue, Appellant challenges the sufficiency of the evidence to
establish that he committed the offense in a drug-free zone. Specifically,
Appellant contends that the evidence was insufficient to support the jury’s finding
15
that he committed the offense within 1,000 feet of the premises of a school. See
HEALTH & SAFETY § 481.134(c)(1) (West Supp. 2014).
In response to a special issue, the jury found that Appellant committed the
offense within 1,000 feet of Early High School. We review a challenge to the
sufficiency of the evidence under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland
2010, pet. ref’d). Under that standard, we examine all of the evidence in the light
most favorable to the verdict and determine whether, based on that evidence and
any reasonable inferences from it, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a
sufficiency review, we defer to the jury’s role as the sole judge of the witnesses’
credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at
899.
Detective Dibrell testified regarding the location where he stopped
Appellant’s vehicle. He said that the stop occurred on Early Boulevard, “directly
across from the high school.” He then testified as follows in answer to the
prosecutor’s questions:
Q. And, so, when we say directly across from the high school, can
you give the jury an estimation of approximately how far away they
would have been from the school property?
A. 50 foot maybe -- four lines, including the left turn lane. Then
right on the other side of that is school property.
Q. All right.
A. Or -- I don’t know if it actually belongs to the school, because
you have some occupied space between it and the school, but.
Q. Well, can you safely say that it was fairly close to the school?
16
A. Oh, yes, yes, for sure. I mean, just right there across the street.
There may have been like a building or something else, but right
behind that is the school.
Q. All right. So, if I was to ask you specifically about, you know,
from where they were stopped to where the school was located or
school property, the edge of the school property and so forth, would it
have been less than a thousand feet?
A. Oh, yes, definitely.
Q. No doubt about that?
A. No, no question about it.
Q. Okay. Now, the school we are talking about, that is the one
that is located there at the 115 Sudderth Drive in Early, Texas?
A. Yes, sir.
Kirby testified that Detective Dibrell pulled Appellant over by Early High
School. Kirby said that Appellant stopped the vehicle right by Early High School.
Based on the evidence, we conclude that a rational trier of fact could have
found that Appellant committed the offense within 1,000 feet of the premises of a
school. Therefore, the evidence is sufficient to support the finding that Appellant
committed the offense in a drug-free zone. Appellant’s fifth issue is overruled.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
April 16, 2015 JUSTICE
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
17