                                                                                  ACCEPTED
                                                                              06-15-00078-CR
                                                                   SIXTH COURT OF APPEALS
                                                                         TEXARKANA, TEXAS
                                                                        10/29/2015 7:55:05 PM
                                                                             DEBBIE AUTREY
                                                                                       CLERK

                    NO. 06-15-00078-CR

                      IN THE                  FILED IN
        th                              6th COURT OF APPEALS
       6 DISTRICT COURT OF APPEALS OF TEXAS
                                          TEXARKANA, TEXAS
                   _______________________          10/30/2015 10:00:00 AM
                                                        DEBBIE AUTREY
             WILLIAM DEWAYNE WHITE                           Clerk
                     Appellant
                        V.
               THE STATE OF TEXAS
                     Appellee
                   _______________________

ON APPEAL FROM THE 336TH JUDICIAL DISTRICT COURT OF
FANNIN COUNTY TEXAS, THE HONORABLE LAURINE BLAKE,
    JUDGE PRESIDING, TRIAL COURT NO. CR-14-25152


             APPELLE BRIEF FOR THE STATE


                       William S. Porter
                    State Bar No. 24068385
             Assistant Criminal District Attorney
                    Fannin County, Texas
             101 East Sam Rayburn Dr., Ste 301
                     Bonham, Texas 75418
                  Telephone: (903) 583-7448
                      Fax: (903) 583-7682
                Email: wporter@fanninco.net

             ATTORNEY FOR THE STATE




                              i
               IDENTITY OF THE PARTIES AND COUNSEL


      This is an appeal from trial court’s final judgement. The parties are
the Appellant, and his attorneys and the Appellee. The names of those
persons are:

Trial Judge:                       The Honorable Laurine Blake
Court:                             336th Judicial District Court

Appellant:                         William Dewayne White

Counsel for Appellant, at Trial:   Jon O’Toole
                                   The Law Office Jon O’ Toole
                                   6401 Eldorado Parkway, Suite 336
                                   McKinney, TX 75070
                                   Phone: 972-548-7167
                                   Fax: 972-548-7168

Counsel for Appellant on Appeal:   Steven R. Miears
                                   211 North Main
                                   Bonham, Texas 75418
                                   Telephone: 903-640-4963
                                   Fax: 903-640-4964

Appellee:                          The State of Texas

Appellee Counsel                   Richard E. Glaser
                                   Criminal District Attorney
                                   Fannin County Criminal District
                                   Attorney’s Office
                                   101 East Sam Rayburn Drive
                                   Bonham, TX 75418
                                   Telephone: (903) 583-7448
                                   Fax: (903) 583-7682

Appellee Counsel on Appeal:        William S. Porter
                                   Assistant Criminal District Attorney
                                   Fannin County Criminal District
                                   Attorney’s Office

                                     ii
                        TABLE OF CONTENTS

Identity of the Parties and Counsel …………..………………………… ii

Table of Contents ………………………………..………………………. iii

Index of Authorities ………………………………..………..………...… iv

Statement of Facts…….………………………………………….……….. 1

Summary of the Argument …………………………………………….… 1

Argument and Authorities ……………………………………………….. 2

  1. Issue One: Texas law does not require sequestration of every

       alternate juror…...…………………………………………………. 2

  2. Issue Two: There was sufficient evidence that the Appellant

       knowingly delivered the controlled substance in a drug free

       zone ………………………………………………………………… 9

  3. a. Issue Three, Part A: Facial challenges to the constitutionality

       of a statue may not be made for the first time on Appeal……… 13

  3.    b. Issue Three, Part B: Additionally numerous courts have

  previously found the drug free zone

       valid, not void due to vagueness or overbreadth…………...…… 15

Prayer…………………………………………………………………..… 17

Certificate of Service…………………………………………………….. 18

Certificate of Compliance ………………………….………………….... 18


                                    iii
INDEX OF AUTHORITES

State Cases                                                            Page

Barnett v. State, 201 S.W.3d 231 (Tex. App. ̶ Fort Worth 2006, no pet.).. 14

Bridges v. State, 454 S.W.3d 87 (Tex. App. ― Amarillo 2014)..……....... 10

Ex parte Chambers, 688 S.W.2d 483 (Tex. Crim. App. 1985)(Campbell, J.,

concurring)………………………………………………………………... 14

Ex parte Lewis, 219 S.W.3d 335, 369 (Tex. Crim. App. 2007)…………... 14

Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003)(Hervey, J.

dissenting)……………………………………………………………...…. 14

Fluellen v. State, 454 S.W.3d 152 (Tex. App. ―Texarkana 2003, no pet.).10

Harris v. State, 125 S.W.3d. 45(Tex. App.―Austin 2003, pet. dism’d)…. 12

Hicks v. State, 2008 Tex. App. Lexis 4414 (Tex. App. ― Dallas, 2008)….. 7

Karenev v. State, 281, S.W.3d 428 (Tex. Crim. App. 2009)……….…...… 13

Kutzner v. State, 75 S.W.3d 427 (Tex. Crim. App. 2002)……………………. 16

Moore v. State, 672 S.W.2d 242 Tex-App.―Houston [14th Dist.]………. 14

Rabb v. State, 730 S.W.3d 751(Tex. Crim. App. 1987)…………………... 14

Rose v. State, 752 S.W.2d 529 (Tex. Criminal. App. 1988)……………… 14

Sneed v. State, 209 S.W.3d 782 (Tex. App. ― Texarkana 2006, pet. ref’d). 7

State v. Waller, 104 S.W.3d 307 (Tex. App.―Dallas 2003, pet. ref’d)….. 16

Trinidad v. State, 312 S.W.3d 23; (Tex. Crim. App. 2010)…..………....…. 3


                                     iv
Uribe v. State, 573 S.W.2d 819 (Tex. Crim. App. 1978) …………………. 2

Williams v. State, 127 S.W.3d 442 (Tex. App. ― Dallas 2004, pet. ref’d…. 9

Federal Cases                                                        Page

United States v. Koons, 300 F.3d 985, 993(8th Cir. 2002)……………….. 16

Texas Statutes                                                       Page

TEX. CODE CRIM. PROC. ANN. art. 33.011……….……...........…………….. 2

      2007 Amendment to art. 33.011……………………………………... 3

TEX. CODE CRIM. PROC. ANN. art. 35.23…………………………………… 3

TEX. HEALTH & SAFETY CODE ANN § 481.134………...…………………. 11

TEX. PENAL CODE ANN. § 6.02……………………………………………... 8

Tex. R. App. 33.1………………………………………………………...… 6




                                    v
                               NO. 06-15-00078-CR

                              IN THE
                th
               6 DISTRICT COURT OF APPEALS OF TEXAS
                                _______________________

                      WILLIAM DEWAYNE WHITE
                              Appellant
                                 V.
                        THE STATE OF TEXAS
                              Appellee
                                _______________________

    ON APPEAL FROM THE 336TH JUDICIAL DISTRICT COURT OF
    FANNIN COUNTY TEXAS, THE HONORABLE LAURINE BLAKE,
        JUDGE PRESIDING, TRIAL COURT NO. CR-14-25152



TO THE HONORABLE JUDGES THE 6TH DISTRICT COURT OF APPEALS
OF TEXAS:

      COMES NOW THE APPELLANT, THE STATE OF TEXAS, by and

through its CRIMINAL DISTRICT ATTORNEY, Richard E. Glaser, and

ASSISTANT DISTRICT ATTORNEY, William S. Porter, and respectfully

submits this brief in response to the Appellant’s brief on appeal.

                            STATEMENT OF FACTS

       The State generally accepts Appellant’s recitation of the facts except as set

forth in specific arguments below.

                       SUMMARY OF THE ARGUMENT

      Appellant’s first point of error was not preserved at trial, because the

Appellant did not ask for the jury to be sequestered, thus could not have objected
                                          1
to the alternate being substituted after being “in recess,” and misinterprets Article

33.011(b) with the related case law regarding the discharge of an alternate juror.

The substitution of the alternate juror was not error nor was harmful as the

alternate had been given all of the same instructions, heard all of the same evidence

and the court’s charge, and was seated before a verdict was rendered.

      Appellant’s second point of error is incorrect because under the existing

statutes and case law established by Uribe v. State, the requirement of a culpable

mental state is not extended to the drug-free zone enhancement when the culpable

mental state of the wrongful act, delivering a controlled substances, is proven. 573

S.W.2d 819 (Tex. Crim. App. 1978).

      The Appellant’s third point of error is untimely because it attempts to raises

a facial challenge to the constitutionality of a statute for the first time on appeal.

Moreover, Texas law has never been that the drug-free zone enhancements are

vague or overbroad due to a lack of culpable mental state requirement.

                      ARGUMENT AND AUTHORITIES

   Issue One: Texas law does not require sequestration of every alternate

   juror.

      In his first point of error the Appellant incorrectly asserts that an alternate

juror must be sequestered, that anything less than sequestration amounts to a

‘discharge,’ and the trial court errored in allowing the alternate to be seated in


                                          2
this case. The record will show at trial the Appellant could not have objected to

the courts failure to sequester because the Appellant did not ask for the jury to be

sequestered. Furthermore, the court did not error by seating the alternate juror, and

the Appellant could not have been harmed by the seating of the alternate.

      Texas law allows for the sequestration of a jury under Article 35.23 of the

Texas Code of Criminal Procedure. Article 35.23 provides, at the request of either

party or the court “on its own motion,” for the sequestering the entire jury which

would presumably require the alternate to be sequestered apart from both regular

jurors and from any outside contact. TEX. CODE CRIM. PROC. ANN. art. 35.23. The

requirements for when a jury is permitted to separate are that the “court shall first

give the jurors proper instructions with regard to their conduct as jurors when so

separated.” Id. The Appellant did not at any time request sequestration of the jury

under Article 35.23.

      Nowhere is his brief does the Appellant mention Article 35.23 of the Texas

Code of Criminal Procedure nor does the Appellant mention his failure to request

sequestration. The Appellant does try to create a new rule of sequestration by

default by misinterpreting the language of Trinidad v. State and Article 33.011(b)

of the Code of Criminal Procedure. 312 S.W.3d 23 (Tex. Crim. App. 2010).

Trinidad was decided after the 2007 amendments to Art 33.011which changed

when an alternate juror could be seated. Act of June 15, 2007, 80th Leg., R.S., Ch


                                          3
846, § 1, sec. 33.011, 2007 Tex. Gen. Laws 846 (current version of at TEX. CODE

CRIM. PROC. ANN. art. 33.011). This amendment will be discussed subsequently.

          The current form of Article 33.011(b), which was examined in Trinidad,

states:

      Alternate jurors shall be drawn and selected in the same manner, shall
     have the same qualifications, shall be subject to the same examination
     and challenges, shall take the same oath, and shall have the same
     functions, powers, facilities, security, and privileges as regular jurors.
     An alternate juror who does not replace a regular juror shall be
     discharged after the jury has rendered a verdict on the guilt or
     innocence of the defendant…

TEX. CODE CRIM. PROC. ANN. art. 33.011.

          In Trinidad, the Texas Court of Criminal Appeals determined if error existed

when an alternate juror was in jury room with the regular jury during deliberations,

ultimately disapproving of the practice. 312 S.W.3d at 23-30.             The Court, in

passing, during the introduction of the case states:

          the amended statute [33.011(b)] does not indicate whether the
          alternate juror should be allowed to be present for, and to participate
          in, the jury's deliberations or, instead, whether he should be
          sequestered from the regular jury during its deliberations until such
          time as the alternate's services might be required by the disability of a
          regular juror.

Id. at 24

From this statement, the Appellant implies a requirement that if the alternate juror

is not sequestered then the alternate juror is discharged.



                                              4
      The Appellant’s interpretation this passage in Trinidad is misleading. The

comment the Appellant’s cites come from the introduction not from the case ruling

and is not on point. Id. at 24. Looking at the context and plain meaning of the

language it is clear the Court is suggesting sequestering the alternate juror “from

the regular jury” not, as contemplated in Article 35.23, from all outside contact.

Id. The Trinidad case did not mention nor discuss issues related to Article 35.23.

      In the present case, the alternative juror, Ms. Shaw, was acknowledged in

the courtroom immediately after the closing arguments, which followed the Court

reading the jury charge (IV R.R at 50). Ms. Shaw was told by the court she would

be “in recess,” (Id.). Ms. Shaw was further instructed “to follow all of the rules that

have been in place” until she was notified by the bailiff the case was concluded or

if she was needed to deliberate (Id.). The record indicates she was present for the

rest of the jury instructions (Id.). Ms. Shaw was at no time discharged, actually or

constructively, as is asserted by the Appellant.

      At the time of substitution of the alternate juror, Ms. Shaw, the Appellant

acknowledged Ms. Shaw’s presence “throughout the whole trial,” (Id. at 58). The

Appellant objected to the seating of Ms. Shaw after the disqualification of a regular

juror (Id.). The basis of the objection was that it prejudiced the defendant because

jury deliberations had started 30 to 45 minutes prior (Id.). The trial attorney made

no mention of Ms. Shaw’s being ‘discharged’. His acknowledgment of Ms. Shaw


                                           5
at the “whole trial” is supportive of the judge’s order the Ms. Shaw was “in recess”

(Id. at 50). The defendant had no objection that Ms. Shaw had “stayed in town”

presumably because she was still subject to the instructions the Court provided.

(Id.). An objection that the alternate was not ‘sequestered’ somewhere at the

courthouse was not made because it was not requested nor it is a requirement.

      The Appellant made no objection to preserve the alleged error on this point.

To preserve error under Rule 33.1 of the Rule of Appellant Procedure:

      the record must show … the complaint was made to the trial court by
      a timely request, objection, or motion that state the grounds for the
      ruling that the complaining party sought from the trial court with
      sufficient specificity to make the trial court aware of the complaint ….

TEX. R. APP. P 33.1.

The Appellant could not have objected to the alternate not being sequestered

because he did not ask for sequestion. There is no record of an objection the

alternate juror being “in recess” (IV R.R. at 50). The Appellant has not shown on

the record in this case a timely request to sequester that was denied or ordered.

The Appellant was asserted the alternate was “discharged” but used faulty

reasoning.

      The objection the Appellant did make was regarding prejudice to him

because deliberations had already started (IV R.R. at 58). This objection was

overruled, and was not error because it was not an abuse of the trial court’s

discretion to do exactly what the amended Article 33.011(b) of the Code of

                                         6
Criminal Procedure allows. Prior to the 2007 amendment to Article 33.011 the

language of subsection be (b) required discharge of the alternate jury after the jury

“retires to consider its verdict.” TEX. CODE CRIM. PROC. ANN. art. 33.011. (2006).

The amendment changed the language require discharge of the alternate juror

“after the jury has rendered a verdict on the guilt or innocence of the defendant.”

TEX. CODE CRIM. PROC. ANN. art. 33.011. The trial court committed no error by

substituting the alternate in compliance with the current form of Article 33.011(b).

The ruling of the Trinidad case is strong support that the trial court acted

appropriately. See Trinidad, 312 S.W.3d at 23-30.

      If there was an error in substituting the alternate juror in this case, the law

would hold such error was harmless. In 2006, this Court decided the issue of

alternate juror substitution in State v. Sneed, holding that a constitutional violation

requires the trial court’s decision to “produce a biased jury.” 209 S.W.3d 782, 788

(Tex. App. ― Texarkana 2006, pet. ref’d).             Noting that jury selection involves

“the application of a statutory scheme” not a constitutional one, any error in the

substitution of an alternate juror must affect a substantial right. Id.

      In Hicks v. State the Fifth Court of Appeals used Sneed to identify two

factors that determine if a defendant is harmed by an assumed error in discharging

a juror for the substitution of an alternate juror.

      A defendant is not harmed by the trial court's error in discharging a
      juror where: (1) the record shows the alternate juror seated in the

                                            7
         discharged juror's place was subjected to the same selection process,
         properly sworn, heard all of the evidence, heard the trial court's
         charge, and seated before the jury retired 1; and (2) the record does not
         show any taint from the alternate juror seated in the discharged juror's
         place.

2008 Tex. App. Lexis 4414 (Tex. App. ― Dallas, 2008). Citing Sneed, 209

S.W.3d at 786.

         Regarding the first Hicks factor the record shows no error or harm because

the alternate juror the met each condition. Alternate Juror, Ms. Shaw, was present

at the voir dire conducted by the trial attorneys for the two parties, and was thus

subjected to the same selection process as the regular jurors (II R.R. at 22, 127).

Prior to opening statements when the regular jurors were properly sworn in, Ms.

Shaw was present, and sworn in herself (III R.R. at 15, 20). Ms. Shaw received the

same instructions from the trial court judge and was warned against violations of

said instructions after recesses with all other jurors present (III R.R. at 20–25, 75,

112, 185, IV R.R. at 19). The record does not at any time reflect that Ms. Shaw

was absent during the presentation of evidence, argument, or for the reading of the

jury charge. As pointed out earlier Ms. Shaw’s presence in the courtroom is

acknowledged immediately after the closing arguments, which followed the Court

reading the jury charge (IV R.R at 50).

         The second factor that Hicks looked at deals with issue of maintaining an


   1
       Sneed was heard prior to the 2007 amendment, of Article 33.011 (b)

                                                8
unbiased jury by examining the record for “any taint from the alternate juror seated

in the discharged juror's place.” 2008 Tex. App. Lexis 4414 (Tex. App. ― Dallas,

2008). In the present case the record is absent of any taint that is present by Ms.

Shaw, the alternate juror, being seated. Thus, the Appellant has not cared his

burden of showing harm.

      The record showing this point of error was not preserved at trial by a timely

and specific complaint, that no abuse of trial court discretion occurred, and no

harm was done in seating an alternate juror prior to verdict being rendered, the

State asks the Court to overrule the Appellant’s first point of error.

   Issue Two: Texas law does not extend a culpable mental state requirement

   to the drug-free zone enhancements.

      Under Texas law a culpable mental state is not a requirement to prove

delivery of a controlled substance, as applied to the drug free zone enhancement.

The Appellant’s assertion that such a requirement exists is incorrect and has been

rejected by several courts. The Appellant’s argument presents no novel fact or

distinction to support his argument which asks this Court to rule against firmly

established precedent.

      The Appellant acknowledges that numerous cases have relied upon the

reasoning of the Criminal Court of Appeals in the Uribe v. State case. 573 S.W.2d

819, 821 (1978 Tex. Crim. App., 1978); See Williams v. State, 127 S.W.3d 442,


                                           9
445 (Tex. App. ― Dallas 2004, pet. ref’d); See Fluellen v. State, 454 S.W.3d 152,

165-66 (Tex. App. ―Texarkana 2003, no pet.); See Bridges v. State, 454 S.W.3d

87, 88-89 (Tex. App. ― Amarillo 2014). These cases have relied upon Uribe for

good reason. Uribe is still sound law and applicable in this case. Reliance by this

court and other Courts of Appeal on Uribe in examining drug free zone cases is

appropriate.

      Under section 6.02 of the Texas Penal Code, when an offense is defined it is

required to have either a culpable mental state or to “plainly dispense” with that

requirement in the definition. TEX. PENAL CODE ANN. § 6.02. In Uribe the Court

analyzed an offense where the definition “prescribes a culpable mental state” in

one subsection and in a subsequent subsection “raise[s] the penalty when the

offense is committed in a designated place”. The Court concluded an “offense

created by [two] Subsections … does not require a culpable mental state beyond

that contained in” the defining subsection. Uribe, 573 S.W.3d at 821.

      The Appellant seeks to the impose a culpable mental state requirement of

section 6.02 to the drug free zone enhancement of 381.134(d) of the Texas

Controlled Substances Act.      The drug free zone enhancement is just that: an

enhancement.    The section containing this enhancement states, “An 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


                                         10
within 1,000 feet on any real property that is owned, rented, or leased to a school

or school board, the premises of a public or private youth center, or a playground.”

TEX. HEALTH & SAFETY CODE ANN. § 481.134 (Vernon 1992).

      The language “on the trial of the offense” indicates the offense in Section

481.112(b), which contains the culpable mental state of knowingly or intentionally,

is to be tried and proven. The plain language of 481.134(d) leads to the following

result: the trier of fact believes beyond a reasonable doubt that a person

intentionally or knowingly delivered a controlled substance listed in penalty group

one, in an amount less than 1 gram, and states as much in the verdict. Once

proven, the trier of fact then determines if the offense, punishable by 481.112(b)

took place in a drug free zone. The culpable mental state, already proven, is not

again applied.    If it is found the offense took place in a specific location, as

defined by another subsection, the punishment range can be enhanced. This is how

Sections 481.112(b) and 481.134(d) operate in alignment with Uribe.

      Other cases which have looked at this issue have come to the same

conclusion. In each case examined below, Uribe was cited and recognized as the

authority, making it neither wrong nor antiquated as the Appellant asserts.

       In White v. State the Fifth Court of Appeals, concluded that an offense

created by Section 481.112 to which the State added an enhancement did not result

in the creation of “a separate offense … as its only effect is to raise the penalty


                                         11
when an enumerated offense is committed in a designated place.” 127 S.W.3d 442,

445. The Court rejected the assertion that a culpable mental state is required

beyond that contained” in the offense defined in 481.112, when it is enhanced by

481.134. Id.

      This court, in Fluellen v. State, in examining a drug offense enhanced by

481.134 concluded:

      The mens rea is connected to the wrongful act. The fact that [an act]
      took place in a “drug free zone” enhances the punishment. There is
      nothing that suggests that the intent stretches beyond the criminal
      offense and that there must also be a separate intent to commit the act
      in a particular case.

104 S.W.3d 152, 165-166.

      In a more recent 2014 decision from the Seventh Court of Appeals these

issues were revisited with the same results. In Bridges v. State the court considered

an appeal that asserted that “the Health and Safety Code created two separate

offenses: (1) possession… and (2) possession in a drug free zone” and that the

“State was required to prove all the elements of the separate offense criminalized

by section 481.134(d), including a culpable mental state with respect to the actor’s

location” 454 S.W.3d 87, 88. To support his argument the appellant in Bridges

cited an Austin court of appeals case, Harris v. State, 125 S.W.3d. 45, 50 (Tex.

App.―Austin 2003, pet. dism’d), which described delivery of controlled substance

and delivery in a drug free zone as being separate and distinct offenses. The


                                         12
Seventh Court of Appeals disagreed as Harris dealt with the question of which

phase of trial drug free zones should be address in. Id. Instead the Court, citing

Uribe, Williams, Fluellen, and others concluded “the fact that the offense took

place in a drug-free zone enhances the punishment by elevating the offense” and

“the State need not allege or prove that an accused had a particular mens rea with

regard to the location at which he possesses the controlled substance.” Id. at 89.

       Bridges concluded, “The foregoing being the state of the law on the issue,

we are disinclined to hold contrary to that law that the State must prove a culpable

mental state with respect to the location of the offense within a drug-free zone.” Id.

The State would ask the Court to overrule appellant's second point of error for the

same reason.

   Issue Three, Part A: Facial challenges to the constitutionality of a statue

   may not be made for the first time on Appeal.

      The State would ask the Court to overrule the Appellant’s third point of error

for two reasons. The first reason, discussed in this part, is because untimely. The

second reason will be discussed in the next part.

      In his brief the Appellant recognizes in Karenev v. State the Court of

Criminal Appeals from 2009 is the controlling case regarding facial challenges to

the constitutionality of a statute made for the first time on appeal. 281, S.W.3d 428

(Tex. Crim. App. 2009). In Karenev the Court examined the “Rabb exception,”


                                          13
which a lower court found to applicable, in allowing a facial challenge to the

constitutionality of the harassment offense. Id. at 429 – 430 citing (Rabb v. State,

730 S.W.3d 751(Tex. Crim. App. 1987)). The “Rabb exception” reasoned that a if

a statute is “void from its inception,[it] is no law, … and justifies no act performed

under it,” because it results in a defendant having a “criminal conviction based

upon an unconstitutional statute.” Karenev v. State, 258 S.W.3d 210, 213 (Tex.

App. ― Fort Worth 2008) (quoting Barnett v. State, 201 S.W.3d 231 (Tex. App. ̶

Fort Worth 2006, no pet.)) Thus a defendant should be allowed to bring a facial

challenge upon for the first time on appeal. Id.

      The Court disagreed, after examining the federal and Texas cases found that

the trend was to not allow facial challenges brought for the first time on appeal.

Karenev, 258 S.W.3d at 430 – 434. The authority to support the “Rabb exception”

was deemed “questionable” and upon review was not held to be sufficient by a

majority of the court. Id. at 432-433. The cases Rabb used as support were seen as

“far to broad” (Moore v. State, 672 S.W.2d 242 Tex-App.―Houston [14th Dist.]),

not on point (Ex parte Chambers, 688 S.W.2d 483, 485 (Tex. Crim. App.

1985)(Campbell, J., concurring)), and used “a made-up … rule in search of a

rationale to justify its existence” Id. at 434, citing Rose v. State, 752 S.W.2d 529

(Tex. Criminal. App. 1988), and quoting Ex parte Lewis, 219 S.W.3d 335, 369




                                          14
(Tex. Crim. App. 2007)(quoting Ex parte Peterson, 117 S.W.3d 804, 829 (Tex.

Crim. App. 2003)(Hervey, J. dissenting)).

       The Appellant argument that Karenev should not be the law is hollow. He

provides nothing from the facts of this or another case which indicates how or why

Karenev should not apply to this case, or what distinction may exist in this case to

provide this Court the opportunity to consider this argument. Appellant cites no

basis for this Court to ignore established precedent and the mandate of stare decisis

by overruling the Texas Court of Criminal Appeals.

      The law in Texas is “that a defendant may not raise for the first time on

appeal a facial challenge to the constitutionality of a statute.” Karenev, 258 S.W.3d

at 434. For that reason the State requests the third point of error be denied.

      Issue Three, Part B: Numerous courts have previously found the drug

free zone enhancements to be constitutionally valid, not void due to vagueness

or overbreadth.

      The substantive portion of the appellant’s third point of error, is in fact, an

attempt to retread old ground. The Appellant asks the Court to view the statutes

containing the drug-free zone enhancements as entirely void because they are

vague or overbroad. The specific way the statute is vague or overbroad is

essentially the same argument made in point two: the statute does not contain a

culpable mental state requirement.


                                          15
      To determine if section 482.134(d) is vague or overbroad the Court should

look to the literal and plain meaning of the text at the time it was enacted. State v.

Waller, 104 S.W.3d 307, 309 (Tex. App.―Dallas 2003, pet. ref’d). If the literal

text of a section 481.143(d) is clear and unambiguous the courts will give effect to

its plain meaning unless the plain meaning would lead to absurd results. Kutzner v.

State, 75 S.W.3d 427, 431 (Tex. Crim. App. 2002); Waller, 104 S.W.3d at 309.

      As noted in the second point of error, the plain meaning of section

481.134(d) is clear in its language and operation. The language of section 481.134

does not created two offenses. Williams, 127 S.W.3d at 445; Bridges, 454 S.W.3d

at 89. The plain meaning of the language of 481.134, when applied to an offense

results in “an enhancement paragraph” and does not “create a separate offense….”

Williams, 127 S.W.3d at 445. The resulting enhancement paragraph’s “only effect

is to raise the penalty when an enumerated offense is committed in a designated

place”. Id; See Fluellen, 454 S.W.3d at 165-66. The drug-free zone statute is “not

unconstitutional for failing to require additional knowledge of intent.” Williams,

127 S.W.3d at 445 citing (United States v. Koons, 300 F.3d 985, 993(8th Cir.

2002) and Uribe, 573 S.W.2d at 821). The plain meaning of the drug-free zone

statutes contained in 481.134 was described by this Court in Fluellen. 454 S.W.3d

at 165-66.




                                          16
      The precedent in Texas is the drug-free enhancement statues are not void

due to vagueness or because they are overbroad. The Appellant has not provided

facts from this or any other case which indicates how or why these statutes are void

due to vagueness or that the statute is overbroad. The Appellant has not carried his

burden and the State would ask this Court to overrule the point of error.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, there being no reversible error

appearing in the record of the trial court of this case, the State moves this Court to

overrule Appellant’s points of error and affirm the conviction. The State further

prays for any and all such additional relief as the Court may deem just and

appropriate.

      Dated: October 29, 2015                  Respectfully submitted,


                                               _____________________________
                                               William S. Porter
                                               State Bar No. 24068385
                                               Assistant Criminal District Attorney
                                               Fannin County, Texas
                                               101 E. Sam Rayburn Drive, Suite 301
                                               Bonham, Texas 75418
                                               Telephone: (903) 583-7448
                                               Fax: (903) 583-7682
                                               ATTORNEY FOR THE STATE




                                          17
                         CERTIFICATE OF SERVICE
      I, the undersigned attorney, hereby certify that a true and correct copy of the

above foregoing brief was sent via email to counsel for the Appellant, Steven

Miears on this the 29rd day of October, 2015.

                                              _____________________________
                                              William S. Porter
                                              Assistant Criminal District Attorney
                                              Fannin County, Texas


                     CERTIFICATE OF COMPLANACE
      I, the undersigned attorney, hereby certify that foregoing documents contains

3,972 words, exclusive of the portions described by Tex. R. App. P. 9.4(i)(1), as

computed by the computer program used to prepare this document.



                                              _____________________________
                                              William S. Porter
                                              Assistant Criminal District Attorney
                                              Fannin County, Texas




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