                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00337-CR
                           ____________________

               LAWRENCE EDWARDS JACKSON, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________           ______________

                   On Appeal from the 221st District Court
                        Montgomery County, Texas
                      Trial Cause No. 12-07-07637-CR
________________________________________________________           _____________

                         MEMORANDUM OPINION

      A jury found Lawrence Edwards Jackson, appellant, guilty of possession of

cocaine in an amount of less than one gram, a state jail felony. See Tex. Health &

Safety Code Ann. § 481.115(b) (West 2010). The jury’s finding that the offense

was committed in a drug-free zone enhanced the offense to a third degree felony.

See id. § 481.134(a)(3),(d)(1) (West Supp. 2014). Jackson pleaded “true” to the six

enhancement paragraphs alleging six prior felony convictions, and the jury

assessed punishment at sixty years of confinement. In two appellate issues, Jackson

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contends he received ineffective assistance of counsel and challenges the

sufficiency of the evidence supporting the jury’s finding that the offense was

committed in a drug-free zone.

                       INEFFECTIVE ASSISTANCE OF COUNSEL

      In his first issue, Jackson asserts he received ineffective assistance of

counsel. Jackson complains that, during the guilt-innocence phase of the trial,

defense counsel failed to redact “prejudicial” portions of an exhibit admitted at

trial, and that defense counsel during closing argument, argued the State’s theory

of the case, and then bolstered the credibility of the State’s witness.

      To establish ineffective assistance, Jackson must satisfy the following test:

             First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must show
      that the deficient performance prejudiced the defense. This requires
      showing that counsel’s errors were so serious as to deprive the
      defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see Perez v. State, 310

S.W.3d 890, 892-93 (Tex. Crim. App. 2010). “Any allegation of ineffectiveness

must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). “Appellate review of defense counsel’s representation is

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highly deferential and presumes that counsel’s actions fell within the wide range of

reasonable and professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002). “Under normal circumstances, the record on direct appeal will

not be sufficient to show that counsel’s representation was so deficient and so

lacking in tactical or strategic decision[ ]making as to overcome the presumption

that counsel’s conduct was reasonable and professional.” Id.

       The record does not indicate that Jackson filed a motion for new trial to

allege ineffective assistance of counsel. The record is silent as to trial counsel’s

tactical and strategic decisions. See Estrada v. State, 313 S.W.3d 274, 311 (Tex.

Crim. App. 2010). Furthermore, Jackson has failed to demonstrate that, but for

counsel’s alleged errors, the outcome of his trial would have been different. See

Graves v. State, 310 S.W.3d 924, 929 (Tex. App.—Beaumont 2010, pet. ref’d).

Trial counsel’s ineffectiveness is not apparent from the record. See Freeman v.

State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003). Jackson cannot defeat the

strong presumption that counsel’s decisions during trial fell within the wide range

of reasonable professional assistance. See Thompson, 9 S.W.3d at 814. Therefore,

we overrule issue one.




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                              ENHANCEMENT FINDING

      In his second issue, Jackson challenges the sufficiency of the evidence

supporting the jury’s finding that he committed the offense in a drug-free zone.

The offense of possession of a controlled substance in an amount of less than one

gram, under section 481.115(b) of the Texas Health and Safety Code is punishable

as a third degree felony if the offense was committed “in, on, or within 1,000 feet

of 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. §§ 481.115(b), 481.134(d)(1). “Playground” is defined as any

outdoor facility that is not on the premises of a school and that is intended for

recreation, is open to the public, and contains three or more play stations intended

for recreation of children, such as a slide, swing set, and teeterboard. Id. §

481.134(a)(3).

      The original indictment charged Jackson with the following:

      Lawrence Edwards Jackson . . . on or about July 17, 2012, . . . did
      then and there intentionally or knowingly possess a controlled
      substance, namely, cocaine, in an amount of less than [one] gram, by
      aggregate weight, including adulterants and/or dilutants,

            And it is further presented in and to said Court that the
      defendant committed the above offense within 1,000 feet of premises
      owned by City of Conroe, Milltown Park, a playground, located at
      600 York, Conroe, Montgomery County, Texas.

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As evidenced by the reporter’s record, the State requested an amendment to the

indictment to “abandon[] some surplusage in the drug-free paragraph.” Jackson did

not object to the amendment, and the trial court noted that “Since there is no

objection, . . . [w]e will use from now on the amended indictment.” The second

paragraph of the amended indictment, as read by the State to the jury, contained

handwritten strikeouts and provided: “And it is further presented in and to said

Court that the defendant committed the above offense within 1,000 feet of

premises owned by City of Conroe, Milltown Park, a playground, located at 600

York, Conroe, Montgomery County, Texas.”

      On appeal, Jackson contends that the original indictment was “never legally

amended” because according to the clerk’s record no written amendment “was ever

presented for the court’s approval,” and therefore, the State was required to prove

the drug-free zone enhancement allegation as alleged in the original indictment. He

claims the State failed to prove that the park was “owned by [the] City of Conroe”

and “located at 600 York, Conroe, Montgomery County, Texas[,]” as alleged in the

original indictment. However, after Jackson filed his appellate brief, a

supplemental clerk’s record was filed, which included the amended indictment.

The amended indictment reflects the orally pronounced interlineation—it alleges

that the defendant committed the offense within 1,000 feet of “Milltown Park, a

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playground[.]” The charge to the jury followed the language of the orally

pronounced and agreed amendment and amended indictment filed of record.

Jackson made no objection to the charge. Therefore, we overrule Jackson’s

argument. A written amendment was presented to the trial court, and Jackson

failed to object to the charge that was submitted in accordance with the amended

indictment. Jackson has waived any objection to the charge. See Tex. R. App. P.

33.1. Furthermore, as amended, the indictment alleges sufficient facts necessary to

establish all the material elements of the offense charged. See Garcia v. State, 981

S.W.2d 683, 685 (Tex. Crim. App. 1998).

      In the alternative, Jackson argues this Court should find there was

insufficient evidence to support the drug-free zone finding and this Court should

reverse and render for a new punishment hearing on the lesser charge of a state jail

felony. The State was required to prove that Jackson intentionally and knowingly

possessed the stated quantity of cocaine within 1,000 feet of “Milltown Park, a

playground[.]” Jackson does not challenge the sufficiency of the evidence to

support possession. Rather he challenges the sufficiency of the evidence to support

the finding that he committed the offense in a drug-free zone. We review a

sufficiency of the evidence issue, regardless of whether it is a legal or factual

sufficiency claim, under the standard of review set forth in Jackson v. Virginia,

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443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). Under the Jackson standard, we review all of the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have

found, beyond a reasonable doubt, that appellant committed the offense. Jackson,

443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We

afford almost complete deference to the jury’s determinations of credibility and

resolve any inconsistencies in the evidence in favor of the verdict. See Jackson,

443 U.S. at 326; Lancon v. State, 253 S.W.3d 699, 705-07 (Tex. Crim. App. 2008).

      Officer Sean Kennard with the Conroe Police Department testified for the

State. He stated that he frequently patrols Milltown Park in Montgomery County

because it is a “high crime area” with “mostly drug use in [the] particular parking

area surrounding it.” According to Officer Kennard, the park is not on the premises

of a school, is located “at the end of West Avenue G, the 600 block of Avenue

G[,]” and has “a few swings, a slide, [a] basketball court[,]” and “[a] few other

playing objects.” A photo of an aerial view of the park and a photo depicting the

park’s entrance and a “Milltown Park” sign were admitted into evidence. Officer

Kennard testified that the park is generally open to the public. Two photos

depicting a sign posted by the City of Conroe Parks and Recreation Department

were admitted into evidence. The sign is labeled “General Park Rules[,]” and

                                         7
provides park hours and rules. Photos of the park were admitted into evidence and

show at least three swing sets or play sets on which children could play. Officer

Kennard testified that the park is intended for recreation and that three of the

photographs admitted depict a “monkey bar” set, a “swing set[,]” and another

completely separate swing set. According to Officer Kennard, there are three or

more “play stations” in Milltown Park. One of the photographs admitted depicted

all three of the play sets and Kennard indicated that the play sets are in the same

vicinity.

       While on foot patrol on July 17, 2012, Officer Kennard saw Jackson riding a

bicycle and entering Milltown Park. According to Officer Kennard, as soon as he

and Jackson made eye contact, Jackson “turned around and headed back toward

Avenue G where he was coming from.” Officer Kennard “yelled for him to stop”

and Jackson dropped what “looked to be a pill bottle or a small capsule of some

kind” from his right hand.

       Officer Kennard testified that he estimated the distance from where he saw

Jackson drop the bottle to the closest piece of playground equipment was “possibly

25 or 30 yards.” According to Officer Kennard, Jackson was actually on the park

premises at the point he dropped the bottle and “much closer” than within 1,000

feet of the nearest piece of playground equipment.

                                         8
      Officer Kennard requested backup assistance from law enforcement. While

he waited for assistance, Officer Kennard kept his eye on the bottle Jackson

dropped. When another officer arrived shortly thereafter, Officer Kennard had the

officer watch Jackson while Officer Kennard retrieved the bottle. Inside the bottle

was a “small, white, rock-like substance” that Officer Kennard recognized as

cocaine. He used a field test kit and confirmed the substance was cocaine and

placed Jackson under arrest. Lab results subsequently confirmed that the retrieved

substance was .31 grams of cocaine.

      As the factfinder, the jury was the exclusive judge of the facts, the credibility

of the witnesses, and the weight to be given the testimony. Brooks, 323 S.W.3d at

899; Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury was

free to believe or disbelieve all or any part of the testimony. Beardsley v. State, 738

S.W.2d 681, 684 (Tex. Crim. App. 1987). We conclude a rational jury could have

determined beyond a reasonable doubt that Jackson committed the offense in a

drug-free zone as alleged in the amended indictment. We overrule issue two.

Having overruled both of Jackson’s issues, we affirm the trial court’s judgment.

      AFFIRMED.




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                                                  _________________________
                                                      LEANNE JOHNSON
                                                            Justice


Submitted on September 19, 2014
Opinion Delivered November 12, 2014
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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