Opinion filed September 28, 2018




                                         In The


          Eleventh Court of Appeals
                                       __________

                                No. 11-16-00270-CR
                                       __________

                      DAVID LEE RANDLE, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee

                      On Appeal from the 35th District Court
                              Brown County, Texas
                         Trial Court Cause No. CR24159


                      MEMORANDUM OPINION
      The jury convicted David Lee Randle of delivery of a controlled substance of
less than twenty-eight grams in a drug-free zone.1 The jury found the habitual
offender enhancement to be “true” and assessed punishment at confinement for
twenty-five years in the Institutional Division of the Texas Department of Criminal
Justice. Appellant presents five issues on appeal. Appellant contends that (1) the
trial court erred by denying Appellant’s motion to quash the indictment, (2) the


      1
       See TEX. HEALTH & SAFETY CODE ANN. §§ 481.114(b), .134(d) (West 2017).
evidence is insufficient to support the drug-free zone enhancement, (3) the evidence
is insufficient to support the habitual offender enhancement, (4) the trial court erred
by not considering the merits on Appellant’s motion for new trial, and (5) the
evidence is insufficient to connect Appellant with the commission of the offense.
We affirm.
                                 Background Facts
      Appellant asked Nora Crawford, a confidential informant, if she knew anyone
looking to purchase hydrocodone pills. Crawford contacted Detective Aaron Taylor,
and they agreed to conduct a controlled buy of five hydrocodone pills from Appellant
for $30. Crawford told Appellant that she wanted to purchase five pills, and
Appellant told her to come to his residence—912 West Anderson Street—to
purchase the pills. Detective Taylor arranged a meeting with Crawford, confirmed
the details of the controlled buy, searched Crawford and her vehicle, equipped her
with video and audio recording devices, and issued her money to purchase the
hydrocodone pills. Crawford proceeded to Appellant’s residence and purchased the
pills. Detective Taylor did not follow her to observe the controlled buy because he
was well known in the area and did not want to jeopardize the investigation. After
Crawford completed the purchase, she met with Detective Taylor and gave him the
pills. Detective Taylor returned to the police department and submitted the pills into
evidence.
                                       Analysis
      In his first issue on appeal, Appellant contends that the trial court erred by
denying Appellant’s motion to quash the indictment. Appellant asserts that the
indictment failed to provide adequate notice because it did not specify whether the
State planned to enhance the offense under subsection (b) or subsection (d) of the
drug-free zone statute. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(b), (d)


                                          2
(West 2017).2 Appellant, however, did not preserve this complaint for review
because he did not raise it in a timely manner. The record shows that, the day after
trial commenced and after the jury had been sworn, Appellant made an oral motion
to quash the indictment. The Code of Criminal Procedure provides:
              If the defendant does not object to a defect, error, or irregularity
       of form or substance in an indictment or information before the date on
       which the trial on the merits commences, he waives and forfeits the
       right to object to the defect, error, or irregularity and he may not raise
       the objection on appeal or in any other postconviction proceeding.

TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005).
       Moreover, the indictment in this case alleged facts that were sufficient to give
Appellant adequate notice of the particular offense charged. See id. art. 21.11 (West
2009). The indictment tracked the language of the statute and charged that Appellant
“knowingly deliver[ed], by actual or constructive transfer, to Nora Crawford, a
controlled substance, namely, a material, compound, mixture, or preparation in an
amount of less than 28 grams, that contained not more than 300 milligrams per 100
milliliters of Dihydrocodeinone.” See HEALTH & SAFETY §§ 481.104(a)(4), .114(a),
(b). The indictment in this case also indicated that the offense being charged was a
“3rd Degree Felony” and that the offense occurred “in, on, or within 1000 feet of a
playground.” See id. § 481.134(d). In addition, the State gave notice of its intent to
enhance Appellant’s punishment pursuant to Section 12.42 of the Penal Code. See
TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2017). We overrule Appellant’s
first issue on appeal.
       In his second issue on appeal, Appellant challenges the sufficiency of the
evidence to establish that he committed the offense in a drug-free zone. Specifically,

       2
         We note that, under Section 481.134(b), a defendant is convicted of a state jail felony but is
punished as if he had been convicted of a third-degree felony. Id. § 481.134(b). Whereas, under
Section 481.134(d), the conviction itself is for a third-degree felony. Id. § 481.134(d).

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Appellant contends that the State failed to prove that the offense occurred at 912
West Anderson Street; that the offense took place in, on, or within 1,000 feet of a
playground; and that Appellant knew he was in a drug-free zone at the time of the
offense. Appellant contends that, because the evidence was insufficient to support
the drug-free zone enhancement, the jury assessed punishment outside the statutory
range. We disagree.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (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 the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
      First, Appellant contends that the State did not prove beyond a reasonable
doubt that the offense occurred at 912 West Anderson Street because the only
evidence presented by the State, Detective Taylor’s testimony, was not credible.
                                           4
Appellant asserts that Detective Taylor did not have personal knowledge of where
the controlled buy took place.
      Detective Taylor testified that Appellant requested that Crawford purchase the
pills at Appellant’s residence, 912 West Anderson Street. Detective Taylor did not
follow Crawford to observe the controlled buy because he was well-known in the
area and did not want to jeopardize the investigation, but he drove to the location a
few days after the offense occurred. He also testified that he was personally familiar
with that address and location.       The video recording of the controlled buy
corroborates Detective Taylor’s testimony. The jurors were able to see the street
sign, West Anderson Street, and the street number affixed to the side of the house.
Considering this evidence in the light most favorable to the verdict, a rational juror
could have found beyond a reasonable doubt that the offense occurred at 912 West
Anderson Street.
      Second, Appellant contends that the State failed to prove beyond a reasonable
doubt that the offense took place in, on, or within 1,000 feet of Cecil Holman Park
at the address specified for the park and that the State did not prove that the
playground was open to the public. Appellant asserts that the address of the park is
not 507 Cordell Street, as alleged in the indictment and as Detective Taylor testified.
Detective Taylor testified that the park was located at 507 Cordell Street and that he
was personally familiar with that location. Appellant argues that the Google maps
attached to Appellant’s motion for new trial disprove the testimony regarding the
location of the park. Detective Taylor testified that he personally measured the
distance from 912 West Anderson Street to the park property, which was eighty-four
feet. He also testified that he measured the distance from 912 West Anderson Street
to the playground equipment taking a circuitous route, which was 738 feet.
      Third, Appellant asserts that the playground in the park was not shown to be
a playground pursuant to Section 481.134 because the State failed to show that the
                                          5
playground was open to the public. See HEALTH & SAFETY § 481.134(a)(3).
However, Detective Taylor testified that the entire park was open to the public, and
he described the park as a “typical public park.” Detective Taylor also testified that
children often played in Cecil Holman Park and that the park was very commonly
used for community events.
      Pursuant to Section 481.134(a)(3), a playground is any outdoor facility that is
not on the premises of a school, that is intended for recreation, that is open to the
public, and that contains three or more play stations intended for the recreation of
children, such as slides, swing sets, and teeterboards. Id. Considering Detective
Taylor’s testimony in the light most favorable to the verdict, a rational juror could
have found that the playground was open to the public.
      Considering the evidence that was admitted at trial in the light most favorable
to the verdict, a rational jury could have found Detective Taylor’s testimony to be
credible and found beyond a reasonable doubt that the park was located at 507
Cordell Street. A rational jury could also have found beyond a reasonable doubt that
the offense occurred within 1,000 feet of a playground. Contrary to Appellant’s
assertions, the State did present evidence that the measurements were taken from
507 Cordell Street to 912 West Anderson Street to determine if the residence was
within 1,000 feet of a playground. Detective Taylor testified that he measured the
distance from 912 West Anderson Street to 507 Cordell Street and to the playground.
      Fourth, Appellant contends that the drug-free zone enhancement is a separate
and distinct offense that requires a separate mens rea or, in the alternative, that this
statute is unconstitutional because a culpable mental state is required for separate
and distinct offenses. Appellant cites Harris v. State, 125 S.W.3d 45, 50 (Tex.
App.—Austin 2003, pet. dism’d), to support his argument. The Court of Criminal
Appeals has, however, specifically rejected the court’s reasoning in Harris. See
White v. State, 509 S.W.3d 307, 311 n.6 (Tex. Crim. App. 2017). In White, the court
                                           6
held that the drug-free zone enhancement does not constitute a separate and distinct
offense requiring an additional culpable mental state with respect to a drug-free zone
enhancement and that the State need not prove that the defendant was aware that the
transaction occurred in a drug-free zone.       Id. at 310–11, 315.      We overrule
Appellant’s second issue.
      In his third issue, Appellant challenges the sufficiency of the evidence to
establish the habitual offender enhancement. Specifically, Appellant contends that
the State failed to prove the proper sequence of his prior convictions. We disagree.
      To enhance a defendant’s punishment as a habitual felony offender under
Section 12.42(d) of the Penal Code, the State must prove beyond a reasonable doubt
that the defendant has two prior felony convictions and that the first prior conviction
became final before the defendant committed the second prior offense. Jordan v.
State, 256 S.W.3d 286, 290–91 (Tex. Crim. App. 2008). The State must also show
that the second prior conviction became final before the defendant committed the
current offense. Id.
      Appellant asserts that the State failed to prove that the second alleged
conviction, which was for unlawful possession of a firearm by a felon, was
committed after the first alleged conviction, which was for robbery, became final.
The State introduced a certified copy of the judgment and the order revoking
probation for the robbery conviction; these reflect that Appellant was finally
convicted of robbery on February 12, 1981. Detective Robert David Ramirez
testified that Appellant committed the offense of unlawful possession of a firearm
by a felon on September 3, 1991, and the State introduced a certified copy of the
judgment, which reflects that Appellant’s conviction became final on February 10,
1992. The evidence showed that Appellant committed the instant offense on July 29,
2015. We reject Appellant’s contention that the State failed to prove the proper


                                          7
chronological sequence of his prior convictions for purposes of the habitual offender
enhancement.
       Throughout his brief, Appellant argues that the punishment assessed against
him was excessive for a state jail felony conviction. Appellant, however, was not
convicted of a state jail felony. The jury convicted Appellant of the third-degree
felony offense of delivery of a controlled substance of less than twenty-eight grams
in a drug-free zone, enhanced by a habitual offender allegation. See HEALTH &
SAFETY § 481.134(d); PENAL § 12.42(d). The range of punishment for an offense
enhanced by a habitual offender allegation is twenty-five years to ninety-nine years
or life. PENAL § 12.42(d). The jury assessed Appellant’s punishment at twenty-five
years, the minimum available under the circumstances. We overrule Appellant’s
third issue.
       In his fourth issue, Appellant contends that the trial court erred by not
considering the merits of Appellant’s motion for new trial. Appellant alleges that
the trial court denied the motion for new trial on the grounds that Appellant did not
object during trial to the incorrect address of the park. We disagree.
       We review a trial court’s denial of a motion for new trial under an abuse of
discretion standard. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App.
2013); McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012). A trial
court abuses its discretion in denying a motion for new trial only when no reasonable
view of the record could support the trial court’s ruling. McQuarrie, 380 S.W.3d at
150. The trial court held a hearing on the motion for new trial and reviewed the
motion and the attachments to the motion. At the hearing, the trial court considered
each of Appellant’s contentions and then denied the motion for new trial. Thus, the
record does not indicate that the trial court failed to consider the merits of
Appellant’s motion for new trial or that the trial court abused its discretion by
denying the motion for new trial. We overrule Appellant’s fourth issue.
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      In his fifth issue, Appellant argues that the non-confidential-informant
evidence failed to connect Appellant with the commission of the offense charged.
We disagree.
      Appellant correctly points out that a defendant may not be convicted under
Chapter 481 of the Health and Safety Code “on the testimony of a person who is not
a licensed peace officer or a special investigator but who is acting covertly on behalf
of a law enforcement agency or under the color of law enforcement unless the
testimony is corroborated by other evidence tending to connect the defendant with
the offense committed.”        CRIM. PROC. art. 38.141(a) (emphasis added).
Article 38.141 also provides: “Corroboration is not sufficient for the purposes of this
article if the corroboration only shows the commission of the offense.”             Id.
art. 38.141(b).
      The Court of Criminal Appeals has held that the standard for evaluating
sufficiency of the evidence for corroboration under the accomplice-witness rule
applies when evaluating sufficiency of the evidence for corroboration under the
covert-agent rule. Malone v. State, 253 S.W.3d 253, 258 (Tex. Crim. App. 2008);
see CRIM. PROC. arts. 38.14, .141. Under these rules, there must be evidence—in
addition to the testimony of an accomplice or a confidential informant—that tends
to connect the accused with the offense. Malone, 253 S.W.3d at 257. In reviewing
the sufficiency of the corroborating evidence, we eliminate the covert-agent
testimony from consideration and focus on the remaining evidence to determine
whether there is evidence that tends to connect the defendant with the commission
of the crime. Id.; Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001).
The corroborating evidence may be direct or circumstantial and need not be
sufficient by itself to establish the defendant’s guilt. Solomon, 49 S.W.3d at 361;
Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991).


                                           9
        The evidence here, absent the testimony of the confidential informant, was
that Crawford was working as a confidential informant for Detective Taylor.
Crawford and Detective Taylor agreed to conduct a controlled buy of five
hydrocodone pills from Appellant for $30. Detective Taylor searched Crawford,
equipped Crawford with video and audio recording devices, and gave Crawford the
money for the controlled buy. Crawford traveled to 912 West Anderson to purchase
the pills, and when Crawford returned to meet Detective Taylor, Crawford had five
hydrocodone pills. Detective Taylor reviewed the video and audio recordings and
determined that they were consistent with Crawford’s debrief of the controlled buy.
Detective Taylor confirmed that Appellant was the person who sold the hydrocodone
pills in the video recording. Detective Taylor testified about the video, and the State
played the video and audio recordings for the jury. The video showed Appellant
transfer the pills to Crawford for cash. We conclude that there was ample evidence,
including the audio and video recordings and Detective Taylor’s testimony, that
tended to connect Appellant to the offense charged. We overrule Appellant’s fifth
issue on appeal.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.


September 28, 2018                                                 JOHN M. BAILEY
Do not publish. See TEX. R. APP. P. 47.2(b).                       CHIEF JUSTICE
Panel consists of: Bailey, C.J.,
Simmons, F.J.,3 and Wright, S.C.J.4
(Willson, J., not participating)

        3
         Rebecca Simmons, Former Justice, Court of Appeals, 4th District of Texas at San Antonio, sitting
by assignment.
        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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