                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS

                                                          §
 LOUIS TERRANCE SMITH,                                                       No. 08-08-00041-CR
                                                          §
                             Appellant,                                           Appeal from
                                                          §
 v.                                                                           203rd District Court
                                                          §
 THE STATE OF TEXAS,                                                       of Dallas County, Texas
                                                          §
                             Appellee.                                        (TC # F-0572457-P)
                                                          §

                                                  OPINION

         Louis Terrance Smith appeals his conviction of possession of less than 200 grams but

more than 4 grams of cocaine with intent to deliver. A jury found Appellant guilty and the trial

court assessed his punishment at a fine of $500 and imprisonment for a term of fifteen years.

Although the trial court orally pronounced that the sentence would be served consecutively with

the sentences in two other cases,1 the written judgment ordered that the sentence run

concurrently. We reform the judgment to delete the order that the sentence shall run

concurrently. We affirm the judgment as reformed.

                         FACTUAL AND PROCEDURAL BACKGROUND

         On December 6, 2004, Appellant was convicted of delivery of a controlled substance and

sentenced to two years in state jail, probated for five years. On the same date, he was also




        1
          In cause number F05-72491-LP, Appellant was convicted of possession of a firearm by a felon. W e reformed
the judgment and affirmed the conviction in a separate opinion issued on this same date. Louis Terrance Smith v. State,
No. 08-08-00024-CR (Tex.App.--El Paso, Jan. 20, 2010). In cause number F05-72492-LP, Appellant was convicted
of possession of body armor by a felon. W e reformed the judgment and affirmed the conviction in a separate opinion
issued on this same date. Louis Terrance Smith v. State, No. 08-08-00042-CR (Tex.App.--El Paso, Jan. 20, 2010).
convicted of possession with intent to deliver a controlled substance and sentenced to

imprisonment for a term of ten years, probated for five years.

       On June 10, 2005, Detective Jason Cox of the Dallas Police Department executed a

search and arrest warrant at Appellant’s apartment. After Cox and his entry team opened the

front door, Cox observed Appellant sitting on a couch as he entered the apartment. As Appellant

ran into the kitchen, Detective Cox noticed a pistol on the couch. Cox confronted Appellant in

the kitchen and attempted to get him on the ground so that another officer could make the arrest.

Appellant attempted to reach for his waistband and his mouth as he struggled with the officers;

he was eventually handcuffed with the help of “two or three more” police officers. As he was led

to the ground floor of the apartment complex, officers noticed that Appellant was choking and

called an ambulance. Officer Mark Underwood, alerted that Appellant was unconscious,

retrieved three baggies of cocaine from Appellant’s throat after performing a “finger sweep.”2

CPR was performed on Appellant and he later regained consciousness at the hospital.

       In Appellant’s kitchen, Detective Cox discovered a rock of crack cocaine on a scale and a

container with a false bottom. A bag of marijuana was found in the cabinet and small glass vials,

normally used to store PCP or codeine, were found above the stove. Cox also recovered a loaded

pistol on the couch, a set of two-way radios, a bullet proof vest, and a utility bill in Appellant’s

name. The address on the bill, 9855 Shadow Way, Apartment 2351, matched the address on the

search and arrest warrant. Officers also seized approximately $1,100 from the apartment.

Evidence admitted at trial established that Appellant’s apartment fell within the drug-free zone

surrounding Audelia Creek Elementary School.

       A grand jury indicted Appellant for possession of cocaine with intent to deliver,

       2
           Laboratory analysis established that the baggies contained 17.4 grams of cocaine.
possession of a firearm by a felon, and possession of body armor by a felon. The three cases

were tried together and a jury returned a guilty verdict in each case. In the possession of cocaine

with intent to deliver case (F-0572457-P), the jury affirmatively answered two special issues,

finding that Appellant used or exhibited a deadly weapon and he committed the offense in a

drug-free zone. The trial court assessed punishment of: (1) fifteen years’ imprisonment and a

$500 fine in the possession of cocaine with intent to deliver case (Cause No. F-0572457-P); (2)

five years’ imprisonment and a $500 fine in the unlawful possession of a firearm case (Cause No.

F-0572491-P); and (3) two years’ imprisonment and a $500 fine in the unlawful possession of

body armor case (Cause No. F-0572492- P). The court orally ordered all three sentences to run

consecutively with the possession of cocaine with intent to deliver case served first, the unlawful

possession of a firearm case served second, and the unlawful possession of body armor served

third.

         The written judgments entered in the three cases are not consistent with the oral

pronouncement of sentence. The written judgment in the possession of a firearm case (Cause

No. F-0572491-P) orders that the sentence shall run consecutively and shall begin only when the

judgments and sentences in both cause numbers F-0572457-P and F-0572492-P have ceased to

operate. In effect, the written judgment makes the sentence in the unlawful possession of a

firearm case (Cause No. F05-72491-LP) the third sentence to be served rather than the second as

the court pronounced at sentencing. The written judgment in the unlawful possession of body

armor case (Cause No. F05-72492-LP) orders that the sentence shall run consecutively and shall

begin only when the judgment and sentence in cause number F05-72491-LP has ceased to

operate. That comports with the pronouncement of sentence but conflicts with the written

judgment entered in cause number F05-72491-LP. Finally, the judgment in the possession of
cocaine with intent to deliver case (Cause No. F05-72457-SP) orders that the sentence run

concurrently. That portion of the judgment is contrary to the trial court’s oral pronouncement of

sentence. This appeal follows.

                                 CONSECUTIVE SENTENCES

       In Point of Error One, Appellant contends that the trial court erred in ordering his

sentences to be served consecutively because Texas Penal Code §3.03 prohibits such cumulation.

The State agrees with Appellant that the sentences in the unlawful possession of a firearm by a

felon (Cause No. F-0572491-P) and unlawful possession of body armor by a felon (Cause No. F-

0572492-P) must run concurrently. It maintains, however, that the sentence in the possession of

cocaine with intent to deliver case (Cause No. F-0572457-P) must run consecutively because

Texas Health and Safety Code §481.134(h), not Texas Penal Code § 3.03, controls.

                                        Statutory Construction

       Courts are to construe a statute literally and according to its plain language, unless that

language is ambiguous or interpretation would lead to absurd results that the legislature could not

have intended. Thompson v. State, 236 S.W.3d 787, 792 (Tex.Crim.App. 2007), citing Boykin v.

State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). We assume that the Legislature intended a

just and reasonable result. See TEX .GOV ’T CODE ANN . § 311.021(3)(Vernon 2005). If a general

provision conflicts with a special or local provision, the provisions shall be construed, if possible,

so that effect is given to both. Id. § 311.026(a). If the conflict between the two provisions is

irreconcilable, the special or local provision prevails as an exception to the general provision,

unless the general provision is the later enactment and the manifest intent is that the general

provision prevail. Id. § 311.026(b).

                                       Texas Penal Code § 3.03
       When the accused is found guilty of more than one offense arising out of the same

criminal episode, a sentence for each offense for which he has been found guilty shall be

pronounced. TEX .PEN .CODE ANN . § 3.03(a)(Vernon 2003). The sentences shall run

concurrently, provided they do not fall within the exceptions set forth in Subsection (b). Id. The

exceptions stated in § 3.03(b) are inapplicable here. See id. Consequently, the trial court erred in

ordering the sentence in the unlawful possession of body armor case to run consecutively with

the sentence in the unlawful possession of a firearm case.

                                      Health and Safety Code

       Section 481.102 of the Texas Health and Safety Code lists cocaine under “Penalty Group

1." TEX .HEALTH &SAFETY CODE ANN . § 481.102(3)(D)(Vernon 2003). A person commits an

offense if he knowingly manufactures, delivers, or possesses with intent to deliver a controlled

substance listed in Penalty Group 1. Id. § 481.112(a). An offense under Subsection (a) is a

felony of the first degree if the amount of the controlled substance to which the offense applies is

four grams or more, but less than two-hundred grams. Id. § 481.112(d). Appellant’s conviction

for possession with intent to deliver cocaine does not satisfy the criteria to run consecutively

under Section 3.03(b) of the Texas Penal Code. See TEX .PEN .CODE ANN . § 3.03(b).

       When certain offenses are committed in a drug-free zone, punishment for the offenses

may be enhanced. See TEX .HEALTH & SAFETY CODE ANN . § 481.134 (Vernon 2003). Drug-free

zones include schools, youth centers, public swimming pools, video arcades, and playgrounds.

See id. The minimum term of confinement or imprisonment for an offense otherwise punishable

under Section 481.134(c) is increased by five years and the maximum fine for the offense is

doubled if it is shown that the offense was committed within one-thousand feet of a school. Id. §

481.134(c). Punishment that is increased for a conviction for an offense listed under Section
481.134 may not run concurrently with punishment for a conviction under any other criminal

statute. Id. § 481.134(h).    Based on the plain language of Section 481.134(h), Appellant’s

sentence for possession of cocaine with intent to deliver must run consecutively with the

sentences in the other two cases. See TEX .HEALTH &SAFETY CODE ANN . § 481.134; Thompson,

236 S.W.3d at 792. The special provision of Section 481.134(h) prevails over the general

provision of Section 3.03(a) of the Texas Penal Code. Assuming the legislature intended a just

and reasonable result when enacting the Texas Health and Safety Code, the Legislature did not

manifestly intend for Section 3.03(a) to prevail. TEX .GOV ’T CODE ANN . § 311.026(a).

Appellant’s sentence for possession with intent to deliver cocaine was punishable under Section

481.134(d) of the Texas Health and Safety Code, and the jury found that his apartment fell within

the drug-free zone surrounding Audelia Creek Elementary School. Id. § 481.134(d). Appellant’s

convictions for unlawful possession of a firearm by a felon and unlawful possession of body

armor by a felon are both punishable under other criminal statutes. See TEX .PENAL CODE ANN . §

46.04(a)(Vernon Supp. 2009); TEX .PENAL CODE ANN . § 46.041 (Vernon 2003). Thus, the trial

court did not err in ordering that Appellant’s sentence in the possession of cocaine with intent to

deliver case run consecutively with the sentences in his other two convictions. Point of Error

One is overruled.
                                      DRUG-FREE ZONE FINDING

         In Point of Error Two, Appellant alleges that the State’s late notice of intent to seek a

drug-free zone finding amounted to a mid-trial indictment amendment and deprived him of

substantial rights. Appellant asserts that he did not receive written notice of the State’s intent to

seek a drug-free zone finding until after the punishment phase had begun. The State first

responds that Appellant waived his complaint by failing to object at trial.

         As a prerequisite to presenting a complaint for appellate review, Texas Rule of Appellate

Procedure 33.1 requires the complaint to have been made to the trial court by a timely request or

objection. TEX .R.APP .P. 33.1(a). This rule ensures that trial courts are provided the opportunity

to correct their own mistakes before a case need be appealed. Vidaurri v. State, 49 S.W.3d 880,

886 (Tex.Crim.App. 2001). Appellant did not object or request a continuance at the beginning of

the guilt-innocence phase when the court arraigned Appellant on the drug-free zone special plea.3

Appellant instead entered a plea of not true to that allegation. Further, Appellant did not object

to the submission of drug-free zone issue at the guilt-innocence charge conference. Accordingly,

Appellant waived his right to present this complaint on appeal. See TEX .R.APP .P. 33.1(a).

         Even if Appellant had preserved this issue, his argument is without merit. An allegation

which enhances punishment must be pleaded in some manner but need not be included within the

indictment. See Villescas v. State, 189 S.W.3d 290, 292 (Tex.Crim.App. 2006); Brooks v. State,

957 S.W.2d 30, 33 (Tex.Crim.App. 1997). A finding that a narcotics offense occurred within




         3
            The prosecutor stated: “State -- F05-72457, also seeks -- intends to seek a Drug Free Zone finding pursuant
to Section 481.134 of the Texas Health & Safety Code and argues that the evidence will show the defendant committed
the offense of possession of a controlled substance with intent to deliver, to-wit: cocaine, in an amount by aggregate
weight, including adulterants or dilutants, of 4 grams or more but less than 200 grams, that said offense was committed
in, on, or within a thousand feet of premises of a school or public, private youth center, to-wit: Audelia Creek
Elementary, located 12600 Audelia Road, Dallas, Texas.”
one thousand feet of an elementary school raises the minimum punishment for the charged

offense in cause number F05-72457-SP by five years and doubles the maximum fine. See

TEX .HEALTH & SAFETY CODE ANN . §§ 481.112(d), 481.134(c)(1) (Vernon 2003 & Supp. 2009).

The State did not amend the indictment to include the drug-free zone allegation. It instead

presented the issue as a special plea. Contrary to Appellant’s claim that the State failed to give

him notice until after the conclusion of the guilt-innocence phase, the record reflects that the

State gave Appellant both verbal and written notice prior to the beginning of trial of its intent to

seek the drug-free zone finding. Prior to the beginning of voir dire, defense counsel informed the

trial court that the State had that same day served written notice of the State’s intent to seek a

drug-free zone finding. Defense counsel also noted that the prosecutor had previously given

verbal notice of the State’s intent to seek that finding. The Health and Safety Code does not

specify when a notice of intent to seek a drug-free zone finding must be given or the required

manner of notice. See TEX . HEALTH & SAFETY CODE ANN . §§ 481.112(3)(D), 481.134(c)(1)

(Vernon 2003 & Supp. 2009). The record reflects Appellant had no defense to the drug-free zone

finding and he did not request a continuance in order to prepare one. Under these circumstances,

notice at the beginning of trial is adequate. See Villescas, 189 S.W.3d at 292. Further, the notice

given by the State of its special plea did not amount to a mid-trial amendment of the indictment.

We overrule Point of Error Two.

                        INEFFECTIVE ASSISTANCE OF COUNSEL

       In his final point of error, Appellant contends that his counsel’s failure to object to the

untimely amendment or late notice of the State’s intent to seek a drug-free zone finding

amounted to ineffective assistance. In Strickland v. Washington, the United States Supreme

Court adopted a two-step analysis as the proper standard for determining claims of ineffective
assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

First, Appellant must show that his counsel’s performance was deficient. Strickland, 466 U.S. at

687, 104 S.Ct. at 2064. Particularly, Appellant must prove by a preponderance of the evidence

that his counsel’s representation fell below the standard of professional norms. Mitchell v. State,

68 S.W.3d 640, 642 (Tex.Crim.App. 2002). Second, Appellant must show that the deficient

performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish

prejudice, Appellant must show that there is a reasonable probability that, but for the counsel’s

unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104

S.Ct. at 2068. A reasonable probability is a probability “sufficient to undermine confidence in

the outcome.” Id. This two-pronged test is used to judge whether counsel’s conduct so

compromised the proper functioning of the adversarial process that the trial produced unreliable

results. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Appellate review of defense

counsel’s efficiency is highly deferential and presumes that counsel’s actions fell within a wide

range of reasonable professional assistance. Id.; Tong v. State, 25 S.W.3d 707, 712

(Tex.Crim.App. 2000). The burden to overcome that presumption falls on Appellant. See

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

       Trial counsel’s failure to object to the allegedly late notice of the State’s intent to seek a

drug-free zone finding did not amount to ineffective assistance. Appellant claims his trial

counsel “plainly erred” because there was “no logical strategic reason” not to object. However,

the record does not affirmatively demonstrate the alleged ineffectiveness of Appellant’s counsel.

Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). We have already determined that

the State’s intent to seek a drug-free zone finding was not untimely. Riney v. State, 28 S.W.3d

561, 565 (Tex.Crim.App. 2000); see TEX .HEALTH &SAFETY CODE ANN . § 481.134. Trial
counsel’s actions fell within a wide range of reasonable professional assistance, as there was a

logical reason not to object to a timely filed notice. Mallett, 65 S.W.3d at 63. Appellant has

therefore failed to satisfy the first prong of Strickland. Mitchell, 68 S.W.3d at 642. Point of

Error Three is overruled.

       Although we have overruled Point of Error One, we have determined that the judgment is

erroneous because it does not comport with the pronouncement of sentence and it conflicts with

the requirement of Section 481.134(h) of the Texas Health and Safety Code. We therefore

reform the judgment to delete the order that the sentence run concurrently. In the related appeals,

we have reformed the judgments to order that the sentences in those cases run concurrently with

one another but consecutively with the sentence in the instant case. See Louis Terrance Smith v.

State, No. 08-08-00024-CR (Tex.App.--El Paso, Jan. 20, 2010); Louis Terrance Smith v. State,

No. 08-08-00042-CR (Tex.App.--El Paso, Jan. 20, 2010). Having overruled the remaining points

of error, we affirm the judgment of the trial court as reformed.


January 20, 2010
                                                      ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.), sitting by assignment

(Do Not Publish)
