                          PD-1596-15                                         PD-1596-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 12/8/2015 1:11:26 PM
                                                            Accepted 12/10/2015 5:28:59 PM
                                                                             ABEL ACOSTA
                CAUSE NUMBER __________________                                      CLERK




              IN THE COURT OF CRIMINAL APPEALS
                   FOR THE STATE OF TEXAS

                      WILLIAM DEWAYNE WHITE
                            PETITIONER

                                  v.

                         THE STATE OF TEXAS




             PETITION FOR DISCRETIONARY REVIEW
           IN TRIAL COURT CAUSE NUMBER: CR-14-25152
           FROM THE 336TH JUDICIAL DISTRICT COURT OF
                        FANNIN COUNTY, TEXAS
                            AND FROM THE
                SIXTH COURT OF APPEALS OF TEXAS
                        IN TEXARAKANA, TEXAS
                    CASE NUMBER: No. 06-15-00078-CR

                                              STEVEN R. MIEARS
                                              State Bar of Texas No.: 14025600
December 10, 2015                                              211 North Main
                                                         Bonham, Texas 75418
                                                             Tel: 903-640-4963
                                                            Fax: 903-640-4964
                                               Email: SteveMiears@msn.com

                    ORAL ARGUMENT IS REQUESTED

1|Page
                        Identity of Parties and Counsel

      Under Rule 68.4(a), Rules of Appellate Procedure, the following is a

complete list of the names and addresses of all parties to the trial court’s final

judgments and their counsel in the trial court, and appellate counsel, so the

members of the court may at once determine whether they are disqualified to

serve or should recuse themselves from participating in the decision of the cases

and so the Clerk of the Court may properly notify the parties to the trial court’s

final judgments or their counsel of the judgments and all orders of the Court of

Criminal Appeals.


Trial Judge: THE HONORABLE JUDGE LAURINE BLAKE, 336TH JUDICIAL

DISTRICT COURT


Petitioner .................................... WILLIAM DEWAYNE WHITE

                                    TDC No.: 2001012
                                    Gurney Unit 1385 FM 3328
                                    Palestine, Texas 75803-5000


 Steven R. Miears (Counsel on Appeal)
 SBOT# 14025600
 211 North Main
 POB 736
 Bonham, Texas 75418
 903 640 4963 fax: 903 640 4964
 SteveMiears@msn.com



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Mr. John O’Toole (Counsel at Trial)
SBOT #24045095
2414 W. University Drive
Suite 122 D
McKinney, Texas 75071

THE STATE OF TEXAS                    Richard E. Glaser
                                      SBOT# 08000000
                                      Criminal District Attorney
                                      101 East Sam Rayburn Drive
                                      Bonham, Texas 75418




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                                       TABLE OF CONTENTS

IDENTIFICATION OF PARTIES AND COUNSEL...................................................2
TABLE OF CONTENTS .........................................................................................   4

INDEX OF AUTHORITIES........................................................................................ 6

STATEMENT REGARDING ORAL ARGUMENT...................................................8

STATEMENT OF THE CASE .....................................................................................8

STATEMENT OF PROCEDURAL HISTORY.............................................................8

GROUNDS FOR REVIEW STATED .........................................................................8

Ground Number One.

Question: Are sections 481.112 and 481.134(d) of the Health and Safety Code
separate offenses?

Ground Number Two:

Question: Does Health and Safety Code section 481.134(d) require proof of a
culpable mental state to support a jury finding at trial that an offense was committed
in a drug-free zone?

Reasons for Granting Review of Grounds One and Two:

A. This Court should grant review under T.R.A.P. section 66.3 (a) because the
decision of the Court of Appeals may conflict with another court of appeals’
decision on the same issue.

B. This Court should grant review under T.R.A.P. 66.3 (b) because the Court of
Appeals has decided an important question of state or federal law that has not been,
but should be, settled by this Court.

C. This Court should grant review under T.R.A.P. 66.3(d) because the Court of
Appeals appears to have misconstrued sections 481.112 and 481.134(d) of the
Health and Safety Code.

Ground Number Three.



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Question: Should an alternate juror be allowed to leave the courthouse before the
regular jury returns a verdict, absent a motion to sequester the alternate made by a
party?

Reason for Granting Review

A. This Court should grant review under T.R.A.P. 66.3 (b) because the Court of
Appeals has decided an important question of state or federal law that has not been,
but should be, settled by this Court.

B. This Court should grant review under T.R.A.P. 66.3(d) because the Court of
Appeals appears to have misconstrued article 33.011 and article 35.23 of the Code of
Criminal Procedure.

ARGUMENT: GROUNDS ONE AND TWO…..................................................... 10

ARGUMENT: GROUND THREE............................................................................ 18

PRAYER FOR RELIEF.........................................................................................21
CERTIFICATE OF SERVICE.......... ............................................................................... 22
CERTIFICATE OF WORD COUNT............................................................................... 23
APPENDIX
(Copy of Opinion from Court of Appeals)




 5|Page
                             INDEX OF AUTHORITIES



Statutes and Rules

Tex. Alco. Bev. Code § 61.11. p.13

Tex. Code of Crim. Proc. Art. 33.011. p.19

Tex. Code of Crim. Proc. Art. 35.23. p.19

Tex. Code of Crim. Proc. Art. 42.12 section 3(g)(a)(1)(G)(ii). p. 10.

Tex. Gov’t Code, Section 508.145 (e). p.10

Tex. Health & Safety Code, section 481.112(b). pp. 10, 11, 13.

Tex. Health & Safety Code, section 481.112(c). pp. 10, 11, 13.

Tex. Health & Safety Code, section 481.134(b), p.16.

Tex. Health & Safety Code, section 481.134(d). pp. 8, 9, 11, 13, 14, 16, 18.

Tex. Health & Safety Code, section 481.134(h). p.10.

Texas Penal Code section 6.02 pp. 9; pp. 12, 13, 15, 16.

Texas Penal Code, Section 1.07 (22). p. 16.

Texas Penal Code, section 12.42(a). p.8, 17.

Cases

Bridges v. State, 454 S.W.3d 87, 88 (Tex. App.—Amarillo 2014, pet. ref’d) p.11

Castillo v. State, 319 S.W.3d 966 (Tex. App. Austin 2010). p.20


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Fluellen v. State, 104 S.W.3d 152, 166 (Tex. App.—Texarkana 2003 no pet.). p.12

Harris v. State, 125 S.W.3d 45, 50 (Tex. App.—Austin 2003, pet. dism'd). pp. 13, 14,
15, 16.

Hastings v. State, 20 S.W.3d 786, 790 (Tex. App.—Amarillo 2000). p.16.

Trinidad v. State, 312 S.W.3d 23 (Tex. Crim. App. 2010). pp. 19, 20.

Uribe v. State, 573 S.W.2d 819, 821 (Tex. Crim. App. [Panel Op.] 1978). p. 12.

White v. State, 2015 Tex. App. LEXIS 11973 (Tex. App. Texarkana Nov. 23,
2015). pp. 11, 14, 16, 19, 22.

Williams v. State, 127 S.W.3d 442, 445 (Tex. App.—Dallas 2004, pet. ref’d). p.4.

Journals and Articles:

“Disparity by Design: How Drug Free Zone Laws Impact Racial Disparity – And Fail
to Protect Youth,” A Justice Policy Institute Report Commissioned by The Drug
Policy Alliance, Judith Greene, Kevin Pranis, Jason Ziedenberg, March, 2006.
http://sentencingproject.org/doc/publications/sen_Drug-Free%20Zone%20Laws.pdf.
p.11.




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              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is requested.

                           STATEMENT OF THE CASE
      Petitioner was convicted by a jury of the third-degree felony offense of delivery

of less than one gram of methamphetamine in a drug-free zone under Tex. Health &

Safety Code, section 481.134(d). (CR p. 88). The drug-free zone finding was made by

the jury at the guilt / innocence phase. (CR p. 104 ) Sentencing was to the judge. After

the trial court found one of the State’s enhancement allegations “true,” (CR p. 88) his

sentencing range increased under Penal Code section 12.42(a) to that of a second

degree felony. He was sentenced to fifteen years’ imprisonment by the trial court. (CR

CR p. 88.)

                  STATEMENT OF PROCEDURAL HISTORY
      The published opinion of the Court of Appeals was handed down on

November 23, 2015. Petitioner filed no motion for rehearing. This Petition is

timely if filed within 30 days of that date.


                            GROUNDS FOR REVIEW


Ground Number One.
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Question: Are sections 481.112 and 481.134(d) of the Health and Safety Code separate
offenses?

Ground Number Two:

Question: Does Health and Safety Code section 481.134(d) require proof of a culpable
mental state to support a jury finding at trial that an offense was committed in a drug-
free zone?

Reasons for Granting Review of Grounds One and Two:

A. This Court should grant review under T.R.A.P. section 66.3 (a) because the decision
of the Court of Appeals conflicts with another court of appeals’ decision on the same
issue.

B. This Court should grant review under T.R.A.P. 66.3 (b) because the Court of
Appeals has decided an important question of state or federal law that has not been, but
should be, settled by this Court.

C. This Court should grant review under T.R.A.P. 66.3(d) because the Court of
Appeals appears to have misconstrued sections 481.112 and 481.134(d) of the Health
and Safety Code.

Ground Number Three.

Question: Should an alternate juror be allowed to leave the courthouse before the
regular jury returns a verdict absent a motion to sequester the alternate made by a
party?

Reason for Granting Review

A. This Court should grant review under T.R.A.P. 66.3 (b) because the Court of
Appeals has decided an important question of state or federal law that has not been, but
should be, settled by this Court.

B. This Court should grant review under T.R.A.P. 66.3(d) because the Court of
Appeals appears to have misconstrued article 33.011 and article 35.23 of the Code of
Criminal Procedure.



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                                     Argument

       Grounds One And Two: This Court has never decided the important question

of whether the offense of manufacturing or delivery of a controlled substance

found in penalty group one in section 481.112 of the Health and Safety Code is a

separate offense from manufacturing or delivery of a controlled substance in

penalty group one which occurs in a drug-free zone set forth in 481.134(d).

Similarly, this Court has never decided the interrelated question of whether at

guilt/innocence the State must prove that the defendant was knowingly in a drug-

free zone to commit an offense under Health and Safety Code Section 481.134(d).

       These are important questions because a drug-free zone finding mandates

significant collateral consequences including: enhanced of punishment ranges, (Health

and Safety Code, section 481.134(c)); mandatory parole ineligibility with mandatory

flat time, (Tex. Gov’t Code § 508.145 (e)); and, the mandatory stacking of some

sentences (Health and Safety Code, section 481.134(h)). It is even classified under

Article 42.12 section 3(g)(a)(1)(G)(ii) as one of the offenses for which a trial court

cannot give regular probation. The enhanced sanctions and collateral consequences are

mandatory, and can result even though the offender had no intent to be in a drug-free

zone, or knowledge he was in it.

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          Drug-free zone laws were enacted intending to deter those who would sell drugs

from being around children. But for deterrence to work the offender must know he is

likely to be in a drug-free zone. Drug-free zones have become so ubiquitous, especially

in densely populated cities that disparities in their enforcement affecting the poor and

minorities occur. Some law enforcement agencies have exploited the state of affairs by

using confidential informants to cause undercover drug transactions to transpire in

drug-free zones, when they otherwise would not occur there. Finally, some traffic stops

resulting in drug charges then morph into drug-free zone charges merely because of the

location of the stop. 1

          The Sixth Court of Appeals decides here that 481.134(d) is not a separate

offense from 481.112. Thus, the drug-free zone is not a separate element of an

offense. Therefore, the Court holds that proof of a culpable mental state associated

with the drug-free zone is not required. White v. State, No. 06-15-00078-CR (Tex.

App. – Texarkana 2015) p. 6. It agreed with the Seventh Court of Appeals as it

held in Bridges v. State, 454 S.W.3d 87, 88 (Tex. App.—Amarillo 2014, pet.




1
 These assertions are based in part upon the writer’s real-world experience in practicing criminal law for the last thirty-
three years. However, a study which confirm these assertions includes, “Disparity by Design: How Drug Free Zone Laws
Impact Racial Disparity – And Fail to Protect Youth,” A Justice Policy Institute Report Commissioned by The Drug Policy
Alliance, Judith Greene, Kevin Pranis, Jason Ziedenberg, March, 2006.
http://sentencingproject.org/doc/publications/sen_Drug-Free%20Zone%20Laws.pdf.
    11 | P a g e
ref’d). Also see Fluellen v. State, 104 S.W.3d 152, 166 (Tex. App.—Texarkana

2003 no pet.).

       To support their holdings both the Sixth and Seventh Courts of Appeals

relied upon this Court’s opinion in Uribe v. State, 573 S.W.2d 819, 821 (Tex.

Crim. App. [Panel Op.] 1978).         However, an analysis of Uribe shows its

resemblance to be tenuous. Uribe was a 1978 case where the Appellant was

charged with unlawfully carrying a handgun on a premises licensed to sell

alcoholic beverages in violation of Penal Code, Section 46.02(c). Uribe, at 820.

       On appeal the appellant challenged whether the indictment was

fundamentally defective “in that it fails to allege that he knew the premises was

licensed to sell alcoholic beverages, and further that the indictment fails to allege

that it was licensed when he committed the offense.” Uribe, at 821. No motion to

quash had been filed. The Court in Uribe decided that Section 46.02(c) which

proscribes carrying the weapon into a licensed bar does not create an offense

separate from otherwise unlawfully carrying a weapon under 46.02(a). The Court

said that, “its only effect is to raise the penalty when the offense is committed in a

designated place. Thus the offense created by Subsections (a) and (c), supra, does

not require a culpable mental state beyond that contained in Subsection (a).” Uribe

 12 | P a g e
v. State, 573 S.W.2d 819, 821 (Tex. Crim. App. 1978). Uribe is distinguishable for

several reasons.

       First, carrying a gun into a bar is different conduct from selling drugs in a

drug-free zone. As a matter of notice it will be readily apparent that one has

entered a bar, whereas being in a drug-free zone is not so easily discernable.

Second, state law requires that licensed bars place conspicuous and even bi-lingual

warnings that entry with a firearm is prohibited and punishable as a higher degree

of offense. See Tex. Alco. Bev. Code § 61.11. Third, the collateral consequences

associated with drug-free zones are not applicable to offenses under 46.02(c).

       In conflict with the Sixth and Seventh Courts of Appeals are the Third Court

of Appeals and the Fifth Court of Appeals. They have held that 481.112 and

481.134(d) are separate offenses, and that the drug-free zone finding is a distinct

element of the offense set forth in 481.134(d). Harris v. State, 125 S.W.3d 45, 50

(Tex. App.—Austin 2003, pet. dism'd); Johnson v. State, 2007 Tex. App. LEXIS

2098, *7, 2007 WL 806317 (Tex. App. Dallas Mar. 19, 2007 non-published).

       In Harris v. State, 125 S.W.3d 45, 50 (Tex. App.—Austin 2003, pet. dism'd)

the Third Court of Appeals said, “The third degree felony under article

481.134(d)(1) contains an element that the state jail felony lacks under section

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481.112(a), (b). These are two separate and distinct offenses. The plain language

of the two statutes, read individually or together, does not lead to absurd

consequences and the language is not ambiguous.” Harris v. State, 125 S.W.3d 45,

50 (Tex. App.—Austin 2003). In Johnson v. State, 2007 Tex. App. LEXIS 2098,

*7, 2007 WL 806317 (Tex. App. Dallas Mar. 19, 2007 non-published) the Court

construed section 481.134(d), and wrote: “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.” Johnson v. State, 2007

Tex. App. LEXIS 2098, *3, 2007 WL 806317 (Tex. App. Dallas Mar. 19, 2007

non-published).

       Incidentally, the Sixth Court of Appeals errs here in its reliance upon

Williams v. State, 127 S.W.3d 442, 445 (Tex. App.—Dallas 2004) to support its

holding.        White id., p. 6. Williams concerned a constitutional challenge to a

different section of the Health and Safety Code than is at issue here. The Court in

Williams held, “Thus, the offense created by sections 481.112(a) and 481.134(c)

does not require a culpable mental state beyond that contained in section

481.112(c).” But the Statute at issue here is 481.134(d). This is important because

 14 | P a g e
these statutes differ in whether the drug-free zone is determined at guilt/innocence,

or at punishment.

       Petitioner readily acknowledges that neither Harris nor Johnson squarely

addressed the requirement of a culpable mental state on the drug-free zone finding.

But, both decided that that the drug-free zone conduct in 481.134(d) creates a

distinct offense, and not just an enhanced penalty range. As a separate element of a

distinct offense the Penal Code mandates that an accompanying mental state

attach.

       Under Texas Penal Code section 6.02(a) a person commits no offense unless

he engages in conduct as the definition of the offense requires, with some culpable

mental state. Under Texas Penal Code section 6.02(b) if the definition of an

offense prescribes no culpable mental state, a culpable mental state is nevertheless

required unless the definition "plainly dispenses" with any mental element.

Nothing in either sections 481.112 or 481.134(d) of the Health and Safety Code

dispenses with the requirement of scienter as it relates to the drug-free zone

element.

       The Penal Code defines “element of offense” to mean: “(A) the forbidden

conduct; (B) the required culpability; (C) any required result; and (D) the negation

 15 | P a g e
of any exception to the offense.” Texas Penal Code, Section 1.07 (22). The

commission of the offense in a drug-free zone is the added forbidden conduct

under 481.134(d). A culpable mental state is, therefore, required for that element.

Without so much as a cursory examination of section 6.02 as requested in

Petitioner’s brief on appeal, (Pet. Brief on Appeal p. 19), and as if by ipse dixit, the

Sixth Court says, “Section 481.134 does not set forth a mens rea separate from the

mens rea required to prove delivery of a controlled substance.” White, id., at p. 6.

In this holding the Court errs.

       Noteworthy, and odd, is that the Health and Safety Code permits the drug-

free zone issue to be decided either at the guilt/innocence phase under section

481.134(d), or at the punishment phase under section 481.134(b). See Hastings v.

State, 20 S.W.3d 786, 790 (Tex. App.—Amarillo 2000) which holds this choice is

made by the State at its unfettered discretion. But, Harris v. State, 125 S.W.3d 45,

52 (Tex. App.—Austin 2003) disagrees with this premise. The statutes give no

direction on which procedure is to be followed, but the consequences from the

choice are significant.

       If the drug-free zone fact is determined at the punishment phase under

481.134(b), the offense is “punishable” as a higher degree offense. Whereas, under

 16 | P a g e
481.134(d), if the drug-free zone finding is made “at trial” the offense results in an

actual conviction for the higher degree offense. Here the drug-free zone issue was

submitted at the guilt/innocence phase of “trial” under 481.134(d). Appellant’s

conviction was thus for a third degree felony, and not just punishable as a third

degree felony. As a third degree felony conviction it was subject to enhancement

under section Texas Penal Code section 12.42(a), and punished as a second degree

felony. The choice, therefore, by the State to seek the drug-free zone finding from

the jury at guilt/innocence, and then seek the enhancement at punishment, caused

his range of punishment to increase from that of a third degree felony to a second

degree felony. He was harmed because he was sentenced to fifteen years when his

exposure should have been only up to ten.

       If the State elects, as it did here, to seek the conviction for the higher offense

under 481.134(d) at guilt/innocence then the State, as a matter of fairness, should

have to prove a culpable mental state regarding that issue. In holding it does not,

the Court of Appeals errs. Having erred in this respect, the Court never addressed

the Petitioner’s claim that no evidence supported the jury’s verdict he delivered the

methamphetamine, knowing he was in a drug-free zone.




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       A significant conflict exists between the Courts of Appeals in Texas on

whether under 481.134(d) a drug-free zone finding is an element of a separate

offense, and not just a punishment enhancement statute, requiring proof of a

culpable mental state regarding that element. This Court should grant review to

clarify which Court is correct.

                                   Argument

       Grounds Two and Three:     In this case the regular jury retired to deliberate

guilt or innocence. The trial court admonished the alternate juror to continue to

follow the rules previously given, and allowed the alternate to leave the court

house. Before the jury reached a verdict it was discovered that one of the regular

jurors was disqualified because she was on felony probation. This juror was

removed and the alternate was summoned to return to the courthouse. The

Petitioner made a timely objection to the seating of the alternate which was

overruled. RR. Vol. 4 pp. 57-62. The Court of Appeals held that the Petitioner

waived his right to appeal this issue by not requesting that the alternate be

sequestered when the regular jury retired to deliberate. White v. State, 2015 Tex.

App. LEXIS 11973 (Tex. App. Texarkana Nov. 23, 2015) p. 3.




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       In its published opinion the Court of Appeals holds that is okay for alternate

jurors to leave the courthouse before the regular jury reaches a verdict. The Court of

Appeals reasons that since the Petitioner did not request that the alternate be

sequestered under article 35.23 of the Code of Criminal Procedure he waived his right

to appeal this issue. The Court holds that his objection to seating the alternate juror

could, therefore, not preserve the issue as error under Article 33.011. White v. State,

No. 06-15-00078-CR (Tex. App. – Texarkana 2015), p. 2-3.

       The Court of Appeals errs in this holding because article 35.23 is not applicable

to alternate jurors, apart from its application to the regular jury. Article 33.011 is the

statute controlling the trial court’s procedures for alternate jurors prior to the regular

jury’s verdict. None cited by the Court of Appeals support the application of article

35.23 to sequestering alternate jurors.

       Under Article 33.011 an alternate juror may replace a regular juror prior to the

jury reaching a verdict. As observed by this Court, the statute does not give the trial

court guidance on whether the alternate juror is to be present and participate in the

jury’s deliberations, or should be sequestered from the regular jury until called upon to

serve. The presence of the alternate going with the regular jurors into the jury room,

but not participating, however, has been disapproved. See Trinidad v. State, 312

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S.W.3d 23 (Tex. Crim. App. 2010). Also see Castillo v. State, 319 S.W.3d 966 (Tex.

App. Austin 2010).       In Trinidad, this Court suggests that the other option is to

“sequester” the alternate. This Court never suggested that the alternate should be

allowed to leave. Nor has the Court ever suggested that a motion to sequester an

alternate under Article 35.23 is required.

       Article 33.011 of the Texas Code of Criminal Procedure states that, “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.” This Court has left

the issue open on what a trial court is supposed to do with an alternate juror pending a

verdict. This Court should grant review to clarify whether a trial judge should sua

sponte sequester an alternate juror until a verdict is reached, or the alternate is seated on

the jury. This should not be a decision left to the parties after the regular jury retires, as

the Court of Appeals holds.

       Allowing an alternate juror to leave the courthouse while the regular jury

deliberates creates several unnecessary risks that the alternate may become influenced

by an outside source. Keeping the alternate juror under the watchful eye and protection

of the trial court helps insure the integrity of the jury, and the availability of the juror to

serve. Allowing the parties to decide whether an alternate stays or goes is an invitation

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to juror disqualification from a plethora of unpredictable sources.      This Court has

never given guidance to trial judges on what to do with alternate jurors until the regular

jury reaches a verdict. Allowing an alternate to leave the courthouse invites potential

juror misconduct. The Court of Appeals errs in holding that to preserve the error in

seating the alternate the Petitioner had to have moved to sequester the alternate prior to

juror leaving the courthouse.


                                PRAYER FOR RELIEF

       This Court should grant review. After review, the Court should remand the

case back to the trial court for a new trial.


                                     APPENDIX


       A copy of the opinion of the Court of Appeals is attached.


                                                      RESPECTFULLY SUMITTED,
                                                                     steve miears
                                                              ____________________
                                                                       Steven R. Miears
                                                                         211 North Main
                                                                  Bonham, Texas 75418
                                                                  Stevemiears@msn.com
                                                                       Tel. 903-640-4963
                                                                      Fax: 903-640-4964
                                                           State Bar Card No. 14025600
                                                                  Attorney for Petitioner
 21 | P a g e
                                      Certificate of Service

        This is to certify that a true and correct copy of the above and foregoing

Petition for Discretionary Review was delivered by electronic e-filing to Richard

E. Glaser, Fannin County Criminal District Attorney; 101 East Sam Rayburn Drive;

Bonham, Texas 75418; on December 8, 2015; and to the State Prosecuting Attorney,

LISA C. McMINN, P.O. Box 13046, Capitol Station, Austin, Texas 78711 by

electronic e-filing, and that a copy was mailed to the Petitioner, William White.




                                                                steve miears
                                            _________________________________
                                                                    Steven R. Miears




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                        CERTIFICATE OF WORD COUNT
       Counsel for the Petitioner certifies that the word count of this brief is less than

4,056 words and within the limitations for length of petitions for discretionary

review.

                                                                     steve miears
                                                         _________________________
                                                                    Steven R. Miears




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                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00078-CR



       WILLIAM DEWAYNE WHITE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 336th District Court
                Fannin County, Texas
            Trial Court No. CR-14-25152




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Moseley
                                          OPINION
        The jury found that William Dewayne White knowingly delivered less than one gram of

methamphetamine in a drug-free zone, a third degree felony.1 After the trial court found one of

the State’s enhancement allegations “true,” White was sentenced to fifteen years’ imprisonment.

        On appeal, White argues (1) that the trial court erred in recalling and seating an alternate

juror who was allowed to leave the courtroom after the charge was read to the jury, (2) that the

statute for the offense is unconstitutional because it fails to require a culpable mental state, and

(3) that while the evidence was sufficient to show that he delivered a controlled substance, it was

insufficient to support a finding that he delivered the controlled substance while knowingly being

in a drug-free zone. We find that White failed to preserve his first two issues for appeal and that

the State was not required to prove that White’s knowing delivery of methamphetamine occurred

while he knew he was in a drug-free zone. Accordingly, we affirm the trial court’s judgment.

I.      Complaint Involving Alternate Juror Is Unpreserved

        Following voir dire, which resulted in the seating of an alternate juror, the trial court

provided comprehensive instructions to the jury that, among other things, warned them not to

discuss the case with others or perform any individual investigation. After closing arguments, the

trial court held the alternate juror and retired the remaining jurors to deliberate. The trial court

then allowed the alternate juror to leave the courtroom, but reminded him that he was subject to




1
 See TEX. HEALTH & SAFETY CODE ANN. § 481.112(b) (West 2010); Act of May 13, 2011, 82d Leg., R.S., ch. 170,
§ 6, 2011 Tex. Gen. Laws 707, 712 (amended 2015) (current version at TEX. HEALTH & SAFETY CODE ANN.
§ 481.134(d) (West Supp. 2015)).

                                                    2
recall and was to “follow all of the rules that [had] been in place.” Neither White nor the State

objected to the trial court’s decision to allow the alternate juror to leave the courtroom.

           As the jury was deliberating, the trial court discovered that one of the jurors, Marie Cooper,

was on felony community supervision for a theft offense.2 The trial court decided to release

Cooper and recall the alternate juror. White then made the following objection:

           Your Honor, for purposes of the record, we would object. I know [the alternate
           juror] has been here throughout the whole trial; however, Ms. Cooper has been in
           and out of the jury room. Who knows what they have already discussed since they
           have been in deliberations now for a little over 30, 45 minutes. We would object
           to removal. I think it prejudiced the defendant in this case and we would ask -- first
           we would object to substituting the jurors, and then we will ask that Ms. Cooper be
           removed and ask for a mistrial, as well.

On appeal, White argues that the trial court erred in failing to sequester the alternate juror and in

allowing him to leave the courtroom.3 The State argues that White’s point of error is not preserved.

We agree.

           A trial court is permitted to allow the jury to separate after the court’s charge is read “unless

the court or a party makes a motion to sequester the jury or a party timely objects to a request to

separate.” Sanchez v. State, 906 S.W.2d 176, 178 (Tex. App.—Fort Worth 1995, pet. ref’d & pet.

dism’d) (citing Krueger v. State, 843 S.W.2d 726, 728 (Tex. App.—Austin 1992, pet. ref’d)

(per curiam)); see TEX. CODE CRIM. PROC. ANN. art. 35.23 (West 2006). “Therefore, the defendant


2
    See TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(3) (West 2006).
3
 Article 33.011 of the Texas Code of Criminal Procedure states, “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 (West Supp. 2014). Citing to this Article, White argues that the alternate juror
was discharged and then permitted to return. However, it is clear that the alternate juror was specifically informed
that he could be recalled and was, in fact, recalled before the jury rendered its verdict. Thus, the alternate juror was
never discharged under Article 33.011.
                                                           3
must either timely file a motion to sequester or timely object to a request to separate to preserve

for appeal a complaint that the trial court deprived the defendant of the right to have the jury

sequestered.” Sanchez, 906 S.W.2d at 178; see Polk v. State, 367 S.W.3d 449, 454 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d); Callen v. State, 303 S.W.3d 322, 326 (Tex. App.—Eastland

2009, pet. ref’d). A timely objection is one that is made at the earliest possible opportunity or one

“‘that is made before jury deliberations begin or before the jury asks to separate.’” Sanchez, 906

S.W.2d at 178 (quoting Keiser v. State, 880 S.W.2d 222, 223 (Tex. App.—Austin 1994, pet.

ref’d)). Further, Rule 33.1 of the Texas Rules of Appellate Procedure states,

       As a prerequisite to presenting a complaint for appellate review, the record must
       show that:

               (1)    the complaint was made to the trial court by a timely request,
       objection, or motion that:

                      (A)     stated 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, unless the specific grounds were apparent from the
               context; and

               ....

               (2)     the trial court:

                      (A)      ruled on the request, objection, or motion, either expressly
               or implicitly; or

                     (B)     refused to rule on the request, objection, or motion, and the
               complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a).

       Our review of the record demonstrates that White failed to raise any objection when the

trial court permitted the alternate juror to leave. Even after the alternate juror’s return, White’s
                                                 4
objection to the trial court was related to the removal of Cooper, not to the trial court’s failure to

sequester the alternate juror. Thus, we conclude that White raised no timely and specific objection

to the trial court’s failure to seat a non-sequestered alternate juror. Accordingly, we overrule

White’s first point of error.

II.      White Failed To Preserve Any Constitutional Challenge to Section 481.134

         In his second point of error, White argues that Section 481.134(d) of the Texas Health and

Safety Code is facially unconstitutional because it “fail[s] to provide for a culpable mental state

for the drug free zone finding.” This issue is not preserved.

         The Texas Court of Criminal Appeals has held “that a defendant may not raise for the first

time on appeal a facial challenge to the constitutionality of a statute.” Karenev v. State, 281 S.W.3d

428, 434 (Tex. Crim. App. 2009).4 In his appellate brief, White admits that he raised no complaint

at trial relating to the constitutionality of Section 481.134(d). Accordingly, White has failed to

preserve his complaint for our review. See id.; Ibenyenwa, 367 S.W.3d at 422; Williams v. State,

305 S.W.3d 886, 893 (Tex. App.—Texarkana 2010, no pet.); Sony v. State, 307 S.W.3d 348, 353

(Tex. App.—San Antonio 2009, no pet.); see also Fluellen v. State, 104 S.W.3d 152, 167–68 (Tex.

App.—Texarkana 2003, no pet.). We overrule White’s second point of error.




4
 White acknowledges the holding in Karenev, but contends that it “should not be the law. . . [because it] was a plurality
opinion.” “Although the four-judge concurrence in Karenev held that the requirement that a facial challenge to a
statute be preserved is not absolute, the five-judge majority plainly stated that . . . ‘a defendant may not raise for the
first time on appeal a facial challenge to the constitutionality of a statute.’” Ibenyenwa v. State, 367 S.W.3d 420, 422
(Tex. App.—Fort Worth 2012, pet. ref’d) (quoting Karenev, 281 S.W.3d at 434). “We are bound to follow the majority
opinion in the absence of language adopting the concurrence.” Id.
                                                            5
III.   The State Was Not Required To Prove that White Was Knowingly in a Drug-Free
       Zone

       During trial, the jury heard evidence that White sold 0.24 grams of methamphetamine to a

confidential informant. The drug transaction was captured on an audio/video recording and was

played for the jury. The jury also heard testimony that the transaction took place within 1,000 feet

of the Family Life Center, a drug-free zone. White does not argue that the evidence is insufficient

to establish that he knowingly delivered methamphetamine. Instead, he argues that the State failed

to prove that White was knowingly in a drug-free zone at the time of the transaction.

       Section 481.134(d) of the Texas Health and Safety Code raises the level of offense for

delivery of a controlled substance “if it is shown on the trial of the offense that the offense was

committed: (1) . . . within 1,000 feet of any real property that is . . . the premises of a public or

private youth center . . . .” TEX. HEALTH & SAFETY CODE ANN. § 481.134(d); see Harris v. State,

125 S.W.3d 45, 51 (Tex. App.—Austin 2003, pet. ref’d, untimely filed). Section 481.134 does not

set forth a mens rea separate from the mens rea required to prove delivery of a controlled substance.

Thus, “a good deal of authority holds that . . . the State need not prove a culpable mental state with

respect to the location of the offense.” Bridges v. State, 454 S.W.3d 87, 88 (Tex. App.—Amarillo

2014, pet. ref’d) (citing Uribe v. State, 573 S.W.2d 819, 821 (Tex. Crim. App. [Panel Op.] 1978));

see Williams v. State, 127 S.W.3d 442, 445 (Tex. App.—Dallas 2004, pet. ref’d). Because the

State was not required to prove that White’s knowing delivery of a controlled substance occurred

while he was knowingly within a drug-free zone, we overrule White’s final point of error.




                                                  6
      We affirm the trial court’s judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:      November 20, 2015
Date Decided:        November 23, 2015

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