                                  NO. 07-03-0301-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                  APRIL 29, 2004
                         ______________________________

                                   KENNON SHAW,

                                                      Appellant

                                           v.

                               THE STATE OF TEXAS,

                                               Appellee
                       _________________________________

             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2001-437,619; HON. CECIL PURYEAR, PRESIDING
                       _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

      Kennon Shaw (appellant) appeals his conviction for possession of a controlled

substance, cocaine in a Drug Free Zone. Appellant pled not guilty and the case was tried

to a jury.   Upon finding appellant guilty of the charged offense, the jury assessed

punishment at 50 years confinement.       Appellant filed this appeal and counsel was

appointed.

      Appellant's counsel has now moved to withdraw, after filing a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and representing

that she has searched the record and found no arguable grounds for reversal. The motion
and brief illustrate that counsel notified appellant of his right to review the appellate record

and file his own brief. So too did we inform appellant that any pro se response or brief he

cared to file had to be filed by December 1, 2003. Appellant subsequently filed a response

wherein he contended that 1) the evidence was insufficient to support his conviction, 2) he

was denied “his fundamental right to a fair trial,” 3) the trial court abused its discretion when

it admitted evidence regarding extraneous acts and gang affiliation and 4) his punishment

“exceeds the statutory maximum.”

       Regarding the argument that the evidence was insufficient to support his conviction,

appellant contends that the State failed to prove a culpable mental state to “possess in a

school zone.” Furthermore, he contends that the jury charge “authorized the court to

discount the culpability of defendant to possess in a school zone and, instead allows the

placement of the school zone allegation as a separate enhancement without a culpable

mental state.” And, law enforcement “forced [appellant] into a school zone” through “their

use of warning lights in their vehicles.” To these we say, the mens rea contemplated by

the penal provision relates to the wrongful act, i.e. possessing the drug. The fact that it

took place in a "drug-free zone" simply enhances the punishment. Thus, the State need

not allege or establish that an accused had a particular mens rea regarding the location at

which he possessed the contraband. Fluellen v. State, 104 S.W.3d 152, 165 (Tex. App.--

Texarkana 2003, no pet.). Thus, we overrule appellant’s first issue.

       Next, appellant contends the evidence was factually insufficient to support his

conviction. This is so because the officers lacked probable cause to stop his vehicle, and

the officers’ description of his clothing he was wearing in which the drug was found was

incorrect. In reviewing the evidence presented at the guilt/innocence phase, we find that

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the police officers were acting upon an arrest warrant for appellant when he was stopped.

After placing appellant under arrest pursuant to the warrant, the officers searched him and

found a substance which later tested positive for cocaine. Appellant, at trial, failed to

contest the validity of the arrest warrant or the search as incident to a valid arrest. And,

the officer’s incorrect description of appellant’s clothing did not cause the evidence to be

insufficient to support appellant’s conviction.      Therefore, we overrule the second

proposition raised by appellant.

       Next, appellant contends that he was denied his fundamental right to a fair trial.

This was allegedly so because 1) he was denied ten days preparation for trial when the

State brought in a witness to testify on the day of trial, 2) the trial court allowed hearsay

evidence over objection and 3) the trial court admitted testimony regarding gang affiliation.

As to the evidence about gangs, the trial court sustained the objection to which appellant

alludes in his brief. Thus, it cannot be said that the trial court erred in admitting the

evidence. As to the belated witness, appellant fails to identify him or her. Thus, we cannot

assess the viability of his claim. And, as to all the complaints uttered, he also failed to

proffer any argument in support of them. Thus, they are waived. See Franklin v. Enserch,

Inc., 961 S.W.2d 704, 711 (Tex. App.--Amarillo 1998, no pet.) (holding that the failure to

provide the court with any discussion of the facts and authorities relied on results in the

waiver of the complaint).

       Next, appellant contends that the trial court abused its discretion in admitting

evidence regarding a fight while in jail and gang activity. Appellant contends that this was

error because it violated Rule 404(b) of the Texas Rules of Evidence and was irrelevant

to proving his commission of the charged offense. However, the evidence was offered

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during the punishment phase of the trial, not guilt/innocence. Furthermore, evidence of

gang affiliation may be admitted during the punishment phase. McDuffie v. State, No. 07-

01-0190-CR, 2001 LEXIS 8342 (Tex. App.--Amarillo December 14, 2001, no pet.) (not

designated for publication); see TEX . CODE CRIM . PROC . ANN . art. 37.07, §3(a)(1) (Vernon

Supp. 2004) (allowing the admission of any evidence the trial court deems relevant to

sentencing during the punishment phase). Similarly, evidence of appellant’s propensity to

engage in fights with others may well come within the ambit of art. 37.07, §3(a)(1), or the

trial court could so conclude via the exercise of its discretion. Moreover, each incident was

not “unsubstantiated,” contrary to appellant’s suggestion. Thus, we overrule this argument

as well.

       In his fifth issue, appellant contends that his punishment exceeded the statutory

maximum. According to appellant, he was charged with a state jail felony which can be

enhanced to a maximum of 20 years only. However, according to section 481.134 of the

Texas Health and Safety Code, if appellant’s act occurred“ 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,” then the offense is elevated to a third degree

felony. See TEX . HEALTH & SAFETY CODE ANN . §§ 481.112(a), (b), 481.134(d)(1) (Vernon

2003). Thus, appellant simply was not charged with a state jail felony. Moreover, because

the indictment alleged at least two prior felony convictions, appellant’s third degree felony

was punishable by a range of not less than 25 years or more than 99 years or life in prison.

TEX . PENAL CODE ANN . 12.42(d) (Vernon Supp. 2004). Therefore, the 50-year sentence

he received was authorized by law. Accordingly, we overrule appellant’s fifth issue.



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        In compliance with the principles enunciated in Anders, appellate counsel discussed

two possible grounds for appeal. First, counsel raised question about the evidence of

possible gang affiliation presented during the punishment phase of trial. Then, counsel

noted how we held such evidence admissible in McDuffie v. State, No. 07-01-0190-CR,

2001 LEXIS 8342 (Tex. App.--Amarillo December 14, 2001, no pet.) (not designated for

publication).

        Next, counsel discussed the range of punishment and the enhancement

paragraphs. Specifically, appellate counsel addressed trial counsel’s argument that had

the trial court charged the jury to consider appellant’s two prior convictions first before the

“drug free zone” enhancement then the maximum punishment to which appellant could be

subjected would be 20 years. However, appellate counsel explains why trial counsel’s

argument was incorrect, and we agree with the explanation.

        Finally, we also conducted an independent review of the record to determine

whether there existed reversible error and found none. See Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991) (requiring us to conduct an independent review).

        Accordingly, we grant counsel's motion to withdraw and affirm the judgment of the

trial court.



                                                   Brian Quinn
                                                     Justice

Do not publish.




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