            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00624-CR


                                       John Harris, Appellant

                                                   v.

                                    The State of Texas, Appellee



      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
            NO. 9014185, HONORABLE JON N. WISSER, JUDGE PRESIDING



                                            OPINION


                Appellant John Harris appeals his conviction for delivery of a controlled substance,

namely cocaine, in an amount of less than one gram in a drug free zone, a third degree felony. See

Tex. Health & Safety Code Ann. '' 481.112(a), (b), 481.134(d)(1) (West Supp. 2003).1 The jury

found appellant guilty of a third degree felony. At the penalty stage of the trial, the trial court found

that the allegations as to four prior felony convictions were true. The court assessed appellant=s

punishment at twenty-five years= imprisonment, the minimum punishment under section 12.45(d).

See Tex. Pen. Code Ann. ' 12.42(d) (West Supp. 2003).




        1
         The current code section 481.112(a), (b) is cited for convenience. Appellant was
prosecuted under Act of May 29, 1993, 73d Leg., R.S., ch. 900, ' 2.02, 1993 Tex. Gen. Laws 3586,
3705 (Tex. Health & Safety Code ' 481.112(a), (b), since amended).
                                               Points of Error

                 Appellant advances three points of error. First, appellant contends that his federal and state

constitutional rights of due process were violated and that the trial court committed fundamental error when

the Apunishment issue of the commission of the offense within 1000 feet of a school zone@ was submitted to

the jury at the guilt/innocence stage of the trial. Second, appellant urges that at the guilt/innocence stage of

the trial, his counsel was ineffective for failing to object to the admission of evidence that the offense was

committed within a drug free zone. Third, appellant complains that A[i]n the alternative, section 48.134(d) is

unconstitutionally vague as applied to Harris [appellant].@ We will affirm the conviction.


                                                     Facts

                 Appellant does not challenge the legal or factual sufficiency of the evidence to sustain the

conviction. Appellant rested when the State did at the guilt/innocence stage of the trial. Suffice it to say, the

record shows that Austin Police Officer Joseph Lorett, acting in an undercover capacity, purchased a rock

of cocaine for $20 and there was an actual transfer of the cocaine from appellant to Lorett in downtown

Austin on January 11, 2001. Other officers, both in uniform and mufti, observed the transaction. Appellant

was arrested shortly thereafter and the previously photographed $20 was recovered from appellant. The

chain of custody of the cocaine was established, and Glen Harrison, a chemist with the Austin Police

Department, testified that a chemical analysis of the substance showed it to be cocaine in the amount of less

than one gram. There was undisputed testimony at the guilt/innocence stage of the trial that the offense was

committed within 868 feet of the St. David=s church school and day care center.

                                       Appellant=s Initial Argument

                                                       2
                 At the outset, appellant contends that the question of the location of the delivery of

cocaineCin a drug free zoneCwas a punishment issue to be decided only at the penalty stage of the

bifurcated trial and that the procedure utilized at his trial was all wrong, despite the lack of an objection.

Appellant asserts that his conviction should have been for the primary offense of delivery of cocaine in an

amount of less than one gramCa state jail felonyCunder section 481.112(a), (b) of the Health and Safety

Code and punishable under section 12.35(a). Tex. Pen. Code Ann. ' 12.35(a), (b) (West 1994).

Appellant urges that his conviction for the state jail felony should have remained a state jail felony conviction

throughout the trial and that the punishment therefor could not have been enhanced under section 12.42(d)

of the Penal Code, the habitual criminal statute, because it excludes state jail felonies from its application. A

A >primary offense= is the criminal offense of which the defendant has most recently been convicted.@ 43

George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure ' 38.121 (2d

ed. West 2001) (hereinafter Dix). And conviction, not punishment, determines the proper enhancement.

Fite v. State, 60 S.W.3d 314, 320 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).

                 Appellant recognizes the allegation that the delivery took place in a drug free zone, but

contends that was a punishment issue for the trial court at the penalty stage of the trial. He argues that the

trial court could have, based on the evidence, enhanced the punishment for his state jail felony conviction to

that of a third degree felony. See Tex. Pen. Code Ann. ' 12.34 (West 1994). Appellant insists that the

punishment for a state jail felony conviction could be enhanced but not the conviction itself. Appellant also

contends that the punishment for the state jail felony conviction, having been enhanced once to the




                                                       3
punishment applicable to a third degree felony, could not be enhanced again. This argument would render

impotent the allegations of the four prior convictions with regard to punishment under section 12.42(d).


                                      A Claim of Fundamental Error

                 Appellant advances the argument that it was fundamental error to have determined the

location of the delivery of the cocaine was in a drug free zone at the guilt/innocence stage of the trial; that

such procedure improperly allowed the State to claim a conviction at the guilt/innocence stage for a third

degree felony rather than a state jail felony, and then to enhance the punishment for a third degree felony

conviction under section 12.42(d), the habitual criminal statute, by virtue of proof of four alleged prior felony

convictions, to twenty-five years= imprisonment.

                 The State argues that the procedure followed in the instant case was proper. It points out

that no objections were imposed by appellant to the matters now complained of for the first time on appeal,

and no error is preserved for review. See Tex. R. App. 33.1(a). As a general rule, trial counsel must

object to preserve error, even if it is Aincurable@ or Aunconstitutional.@ Cockrell v. State, 933 S.W.2d 73,

89 (Tex. Crim. App. 1996). Without proper preservation, even constitutional error may be waived. See

Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000). If Rule 33.1(a)=s general requirement is

unqualifiedCthat to preserve error matters must be raised in the trial courtCthen appellate courts have no

authority thereunder to consider fundamental error. See 43A Dix ' 42.252.

                 In passing, appellant cites Rule 103(d) to support his claim of fundamental error. Tex. R.

Evid. 103(d). The rule deals with evidentiary rulings. However, Rule 103(d) states: AIn a criminal case,

nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they

                                                       4
were not brought to the attention of the court.@ Tex. R. Evid. 103(d). Whether Rule 103(d) is limited to

evidentiary matters or was designed to preserve preexisting fundamental case law is not clear. See 43A Dix

' 252.

                Appellant makes no effort to show that Rule 103(d) is applicable to his particular claim of

fundamental error.2 Moreover, appellant does not mention whether his fundamental error claim is supported



         2
          In Blue v. State, 41 S.W.3d 129, 131-33 (Tex. Crim. App. 2000), not cited by appellant,
four judges concluded that Rule 103(d) was authority to treat some errors as fundamental. The
plurality held that the trial judge=s comments to the jury panel which Atainted@ the defendant=s
presumption of innocence was fundamental error under Rule 103(d). Judge Keasler concurred in the
result because the comments violated the defendant=s Aabsolute right@ to an impartial judge. Judge
Keasler did not believe that Rule 103(d) was intended to authorize exceptions to Rule 33.1 and did




                                                    5
by fundamental error case law. See Marin v. State, 857 S.W.2d 275, 278-79 (Tex. Crim. App. 1993),

overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). For there to

be fundamental error, there must first be error. We shall examine the record to determine if there is error.3



not apply to the error in Blue which was not subject to the rules of evidence. Judge Mansfield also
concurred. The three dissenters agreed that Rule 103(d) had no applicability to the error involved
and error was waived by failure to object to the comments. For a discussion of Blue, see 43A George
E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure ' 62.252 (2d ed. West
2001); Rahago v. State, 75 S.W.3d 561, 563 (Tex. App.CSan Antonio 2002, pet. filed). Because
there is majority opinion in Blue, it is not binding precedent. Pearson v. State, 994 S.W.2d 176, 177
n.3 (Tex. Crim. App. 1999); Rahago, 75 S.W.3d at 563. In Oulare v. State, 76 S.W.3d 231, 234 (Tex.
App.CAmarillo 2002, no pet.) the court found that Athe scope of Blue is far from certain.@
        3
          In his point of error and in his brief, appellant mentions error in submitting the drug free
zone issue to the jury at the guilt/innocence stage of the trial. This would indicate that his claim of
error was limited to jury charge error. Appellant, however, does not cite article 36.19 dealing with
jury charge error. Tex. Code Crim. Proc. Ann. art. 36.19 (West 1981). Appellant does not apply the
standard for review of jury charge error when there is no objection. See Jimenez v. State, 32 S.W.3d
233, 236 (Tex. Crim. App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim App. 1984)
(op. on reh=g). It is clear that appellant has not briefed any limited claim to jury charge error and
presents nothing for review in this regard. See Tex. R. App. P. 38.1(h). It is obvious that appellant=s




                                                     6
complaint is broader and not specifically concerned with jury charge error.


                                                 7
                                     Background and Procedure

                The prosecution was brought under the provisions of section 481.112(a), (b) at the time of

the offense and section 481.134(d)(1) of the Texas Health and Safety Code as earlier noted. See note one.

                The then-applicable section 481.112(a), (b) provided:


        (a) Except as authorized by this chapter, a person commits an offense if the person
            knowingly or intentionally manufactures, delivers or possesses with intent to
            manufacture or deliver a controlled substance listed in Penalty Group 1.

        (b) An offense under subsection (a) is a state jail felony if the amount of the controlled
            substance to which the offense applies is by aggregate weight, including adulterants or
            dilutants, less than one gram.4


                Cocaine is listed in Penalty Group 1.          See Tex. Health & Safety Code Ann.

' 481.102(3)(D) (West Supp. 2003).

                Section 481.134(d)(1) provides in pertinent part:


        (d) an offense otherwise punishable under section 481.112(b) . . . is a felony of the
            third degree if it is shown in the trial of the offense that the offense was
            committed:

             (1) in, on, or within 1000 feet of any real property that is owned, rented, or leased
                 to a school or school board.


(Emphasis added).

        4
        Act of May 29, 1993, 73d Leg., R.S., ch. 900, ' 2.02, 1993 Tex. Gen. Laws 3586, 3705
(Tex. Health & Safety Code ' 481.112(a), (b), since amended).




                                                    8
                The only count in the indictment5 provides in pertinent part that appellant on or about

January 11, 2001:


        did then and there intentionally and knowingly deliver, by actual and constructive transfer,
        to Joseph Lorett, a controlled substance, namely, cocaine, in an amount of less than one
        gram, by aggregate weight, including adulterants and dilutants.

             And the Grand Jury further presents in and to said Court that John Harris committed
        the above offense within 1000 feet of premises owned by St. David=s Episcopal Church, a
        school, to wit: 304 East 7th Street, Austin, Travis County, Texas.[6]


                There was no motion to set aside the indictment. During the voir dire examination of the

jury panel, both parties discussed the third degree felony alleged. Veniremembers were interrogated about

their views of the drug free zone law provisions. When the indictment alleging the primary offense was read

to the jury, there was no objection. The drug free zone evidence was admitted without objection at the

guilt/innocence stage of the trial. The trial court later charged the jury at the guilt/innocence stage that


        5
           Enhancement of punishment allegations as to prior felony convictions are not Acounts@ of
an indictment. See Square v. State, 167 S.W.2d 192, 193-94 (Tex. Crim. App. 1942); see also Zaragosa
v. State, 588 S.W.2d 322, 323 n.3 (Tex. Crim. App. 1979); Hathorne v. State, 459 S.W.2d 826, 830
(Tex. Crim. App. 1970); Pitts v. State, 742 S.W.2d 420, 422 n.1 (Tex. App.CDallas 1987, no pet.).
        6
          The fact that the indictment is set forth does not mean that this is the only way to allege the
third degree felony offense.




                                                     9
appellant was Acharged by indictment with the offense of Delivery of a Controlled Substance in a Drug Free

Zone.@ The application paragraphs of the jury instructions provided:

                                                    IV.

             Now bearing in mind the foregoing instructions, if you believe from the evidence
        beyond a reasonable doubt, that on or about the 11th day of January A. D. 2001, in the
        County of Travis, and State of Texas, as alleged in the indictment, John Harris intentionally
        or knowingly deliver, by actual or constructive transfer, to Joseph Lorett, a controlled
        substance, namely, cocaine, in an amount of less than one gram, by aggregate weight,
        including any adulterants or dilutants, and said delivery was committed within 1,000 feet of
        a premise owned by St. David=s Episcopal Church, a school, to-wit: 304 East 7th Street,
        Austin, Travis County, Texas, you will find the defendant guilty of the offense of Delivery of
        a Controlled Substance in a Drug Free Zone and so say by your verdict, but if you do not
        so believe, or are unable to arrive at a verdict on this charge you should proceed to
        consider the charge in the following paragraph.

                                                     V.

             Now bearing in mind the foregoing instructions, if you believe from the evidence
        beyond a reasonable doubt, that on or about the 11th day of January A. D. 2001, in the
        County of Travis, and State of Texas, as alleged in the indictment, John Harris intentionally
        or knowingly deliver, by actual or constructive transfer, to Joseph Lorett, a controlled
        substance, namely, cocaine, in an amount of less than one gram, by aggregate weight,
        including any adulterants or dilutants, you will find the defendant guilty of the offense of
        Delivery of a Controlled Substance and so say by your verdict, but if you do not so believe,
        or have a reasonable doubt thereof, you should say by your verdict not guilty.


                It is clear that the trial court submitted the third degree felony offense to the jury in

paragraph IV of the jury charge and the lesser included state jail felony in paragraph V. There was no

objection to the court=s charge. After the jury=s verdict, the penalty stage of the proceedings was conducted

before the trial court. Appellant made no election that the jury assess punishment. See Tex. Code Crim.

Proc. Ann. art. 37.07, ' 2(b) (West Supp. 2003). The formal judgment reflects that appellant was


                                                     10
convicted of ADelivery of Cocaine in Drug Free Zone,@ . . . Aa third degree felony.@ A motion for new trial

based on the claim that the jury=s verdict was Acontrary to the law and evidence@ appears to have been

overruled by operation of law.


                                        Interpretation of Statutes

                 In interpreting a statute, courts look to the literal text of the statute for its meaning and

ordinarily give effect to that plain meaning, unless application of the statute=s plain language would lead to

absurd consequences that the legislature could not possibly have intended, or the plain language is

ambiguous. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); see also State v. Webb, 12

S.W.3d 808, 811 (Tex. Crim. App. 2000).

                 Section 481.112(a) plainly creates an offense if a person delivers a controlled substance in

Penalty Group 1. Subsection (b) provides that the offense is a state jail felony if the amount of controlled

substance delivered is less than one gram. Section 481.134(d)(1) clearly provides that an offense,

otherwise punishable under section 481.112(b) as a state jail felony, is a felony of the third degree felony if

it is shown on trial that the offense was committed in a drug free zone in, on, or within 1000 feet of a school.

The third degree felony under article 481.134(d)(1) contains an element that the state jail felony lacks under

section 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. See Boykin, 818 S.W.2d at 785. The plain meaning of the statutes is to be given effect.

Section 481.134(d)(1) provides that the offense is a third degree felony if on trial the evidence shows

delivery in a drug free zone. It does not provide that after conviction for a state jail felony the punishment

                                                      11
for that offense will be the same as for a third degree felony if certain conditions are present. The legislature

could have said so in section 481.134(d)(1) if it had so intended. There is nothing to show that the

legislature intended that the drug free zone issue under these statutes was to be decided by submission of an

affirmative findings with the conviction remaining a state jail felony, or that the issue be decided by the same

or a different trier of fact at different or separate proceedings.

                 If there is any confusion, it arises out of the fact that the statutes are subsections of different

sections of Chapter 481 of the Health and Safety Code. The general provisions of section 481.112 and

481.134 are broad and varied. In Young v. State, 14 S.W.3d 748, 751-53 (Tex. Crim. App. 2000), the

court discussed the evolution of section 481.134 and the 1995 amendments to section 481.134(b). The

court concluded that:


              Subsections (c) through (f) remained untouched, however, indicating a continued intent
        to treat separately those offenses occurring within the drug-free zones surrounding schools
        or school property.


Young, 14 S.W.3d at 753. Section 481.134(d) is not governed by section 481.134(b) which uses the

phrase Apunishment phase.@ Moreover, courts give effect to specific provisions over more general

provisions of a statute. See Tex. Gov=t Code Ann. ' 311.026 (West 1998); Campbell v. State, 49

S.W.3d 874, 876 (Tex. Crim. App. 2001).


                                                  Conclusion

                 We conclude that the indictment charged a third degree felony under sections 481.112(a),

(b) and 481.134(d)(1) and that it was proper to submit to the jury all the elements of the offense at the

                                                       12
guilt/innocence stage of the trial including the delivery of cocaine within the specific drug free area. At the

penalty stage of the trial, the jury having found appellant guilty of a third degree felony, the trial court was

free to hear evidence about the four prior felony convictions and to assess the minimum punishment under

section 12.42(d). Tex. Pen. Code Ann. ' 12.42(d) (West Supp. 2003) (habitual offenders). Appellant

was not convicted of a state jail felony; his punishment was not assessed under section 12.35(a) for a state

jail felony; and section 12.42(d) was not rendered inapplicable to the assessment of punishment in the

instant case.

                 We have examined several cases dealing with delivery of cocaine in a drug free zone, see,

e.g., Lovelady v. State, 65 S.W.2d 810 (Tex. App.CBeaumont 2002, no pet.); White v. State, 59

S.W.3d 368 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d), and we have found none where the issue of

the drug free zone was postponed until the penalty stage of the trial after a conviction for a state jail felony,

as urged by appellant.

                 Appellant cites Hastings v. State, 20 S.W.3d 786 (Tex. App.CAmarillo 2000, pet. ref=d),

which involved prosecution for delivery of cocaine in a school=s drug free zone under the provisions of

section 481.112(c) (second degree felonyCone gram or more but less than four grams) and section

481.134(c) (punishment issue statute increasing second degree felony punishment by five years and doubling

maximum fine). See Tex. Health & Safety Code Ann. '' 481.112(c), 481.134(c) (West Supp. 2003).

These are different statutes than those involved in the instant case. The Amarillo court noted the phrase Aon

the trial of the offense@ found in section 481.134(c) and determined that the State, in its unfettered




                                                      13
discretion, may prove the drug transaction occurred within 1000 feet of a school during either phase of the

trial. Hastings, 20 S.W.3d at 790.

                 Appellant can find little comfort in Hastings because it can be said that the State exercised

its discretion in the instant case by offering the drug free zone evidence at the guilt/innocence stage of the

trial. Moreover, we do not necessarily agree with the Amarillo court that the legislature intended to allow

the State to opt arbitrarily as to when it will present the evidence. Such practice would undermine the trial

court=s control of the trial. The practice would vary from county to county and even from case to case in

the same county or same court. Hastings does not support appellant=s argument. Further, Hastings

overlooks the fact that all trials are not bifurcated trials.

                 The procedure suggested by appellant would be applicable only in those cases where there

had been a proper bifurcation of the proceedings. The bifurcation statute [Tex. Code Crim. Proc. Ann. art.

37.07, ' 2(a) (West Supp. 2003)] is only applicable to Apleas of not guilty before a jury.@ Barfield v.

State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001); Morales v. State, 416 S.W.2d 403, 405 (Tex.

Crim. App. 1967); see also Duhart v. State, 668 S.W.2d 384, 386 n.3 (Tex. Crim. App. 1984). The

statutory bifurcation provision would have no application to a trial before the court on a plea of not guilty.

Barfield, 63 S.W.3d at 449-50; Courtney v. State, 424 S.W.2d 440, 443 (Tex. Crim. App. 1968).

Other proceedings on pleas of guilty before the trial court or jury are also unitary trials. See Frame v.

State, 615 S.W.2d 766, 767 n.1 (Tex. Crim. App. 1981); Busaldua v. State, 481 S.W.2d 851, 853

(Tex. Crim. App. 1982); Darden v. State, 430 S.W.2d 494, 495 (Tex. Crim. App. 1968); see generally

43 Dix ' 38.14 (discussing common practice). Statements in cases like Luna, 70 S.W.2d 354, 361 (Tex.


                                                        14
App.CCorpus Christi 2002, pet. ref=d) and Hastings, 20 S.W.3d at 790, that all criminal trials are

bifurcated are incorrect and misleading.

                  The most striking blow to appellant=s contention and the holding in Hastings is Apprendi v.

New Jersey, 530 U.S. 466 (2000), where the United States Supreme Court considered the constitutionality

of the New Jersey hate-crimes statute. That statute allowed a jury to convict a defendant of a second

degree offense based upon a finding, beyond a reasonable doubt, that he unlawfully possessed a prohibited

weapon; after a subsequent separate proceeding, it then allowed a trial judge to impose punishment for a

first degree offense based on the judge=s finding, by a preponderance of the evidence, that the defendant=s

Apurpose@ for unlawfully possessing the weapon was Ato intimidate@ his victim on the basis of a particular

characteristic that the victim possessed.

                  In holding the New Jersey statute violated due process, the United States Supreme Court

stated:


          It is unconstitutional for a legislature to remove from the jury the assessment of facts [other
          than the fact of a prior conviction] that increase the prescribed range of penalties to which a
          criminal defendant is exposed. It is equally clear that such facts must be established by
          proof beyond a reasonable doubt.


Id. at 499; see also In re Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App. 2001) (discussing Apprendi).

                  Thus, any interpretation of section 481.134(d)(1), as appellant would have it, that would

remove from the jury the assessment of a factCwhether the offense of delivery of cocaine occurred in a drug

free zone within 1000 feet of a schoolCthat would increase the prescribed range of penalties to which

appellant was exposed, would be violative of due process and render the statute unconstitutional. Thus, the

                                                       15
trial court was correct in permitting evidence of the occurrence of the offense to be presented at the

guilt/innocence stage of the trial and submitting the offenses to the jury in the court=s charge at that stage of

the proceedings. Appellant=s claims to the contrary are without merit. There was no error in the trial court=s

procedure. Without error, there is no fundamental error. The first point of error is overruled.

                                    Ineffective Assistance of Counsel

                 In his second point of error, appellant contends that Acounsel was ineffective for failing to

object to the admission of evidence regarding the commission of the offense within a drug free zone at the

guilt-innocence phase of the trial.@ Appellant limits his effective assistance claim to the admission of

evidence.

                 The Sixth Amendment to the United States Constitution guarantees the right to the

reasonable effective assistance of counsel in state criminal proceedings. McMann v. Richardson, 397 U.S.

759, 771 n.14 (1970); see also Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). The

standard for appellate review of the effective assistance of counsel, either retained or appointed, is the two-

pronged test of Strickland v. Washington, 466 U.S. 668 (1984), adopted in Texas by Hernandez v.

State, 726 S.W.2d 53, 53 (Tex. Crim. App. 1986). Under the Strickland standard, a convicted

defendant must (1) show that his trial counsel=s performance was deficient in that counsel made such serious

errors he was not functioning effectively as counsel, and (2) show that the deficient performance prejudiced

the defendant to such a degree that the defendant was deprived of a fair trial. Strickland, 466 U.S. at 686-

89; Parmer v. State, 38 S.W.3d 661, 665 (Tex. App.CAustin 2000, pet. ref=d); Banks v. State, 819

S.W.2d 676, 681 (Tex. App.CSan Antonio 1991, pet. ref=d). Unless a defendant makes both showings, it


                                                       16
cannot be said that the conviction resulted from a breakdown in the adversary process that renders the

results unreliable. Strickland, 466 U.S. at 687; Oestrick v. State, 939 S.W.2d 232, 237 (Tex.

App.CAustin 1997, pet. ref=d). Under Strickland, a defendant has the burden to prove a claim of

ineffective assistance of counsel by a preponderance of evidence. McFarland v. State, 928 S.W.2d

482,500 (Tex. Crim. App. 1996); Parmer, 38 S.W.3d at 665.

                 The review of a claim of ineffective assistance of counsel is highly deferential. Strickland,

466 U.S. at 687; Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999). Every effort must be

made to eliminate the distorting effect of hindsight. Strickland, 466 U.S. at 689; Kunkle v. State, 852

S.W.2d 499, 502 (Tex. Crim. App. 1993); Scott v. State, 57 S.W.3d 476, 483 (Tex. App.CWaco 2001,

pet. ref=d). A reviewing court must indulge a strong presumption that a trial counsel=s conduct falls within a

wide range of reasonable representation. McFarland, 928 S.W.2d at 500. An ineffectiveness claim

cannot be demonstrated by isolating one portion of counsel=s representation. Parmer, 38 S.W.2d at 666.

Courts assay the totality of counsel=s representation rather than isolated acts or omissions. Wilkerson, 726

S.W.2d at 548; Duvall v. State, 59 S.W.3d 773, 779 (Tex. App.CAustin 2001, pet. ref=d). The

Strickland standard has never been interpreted to mean that the accused is entitled to errorless or perfect

counsel. Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). Moreover, the fact that another

attorney might have pursued a different course of action at trial will not support a finding of ineffectiveness.

Nethary v. State, 29 S.W.3d 178, 188 (Tex. App.CDallas 2000, pet. ref=d); Banks, 819 S.W.2d at 681.




                                                      17
                In the first point of error, we rejected appellant=s claim that delivery of a controlled

substance less than one gram in a drug free zone was a punishment issue only. It was proper for the

prosecution to have introduced evidence of the drug free zone at the guilt/innocence stage of the trial.

Appellant=s trial counsel cannot be faulted for failing to object to evidence that was properly admissible.

Appellant has not sustained his burden of proof under Strickland. The second point of error is overruled.


                               Constitutionality of Section 481.134(d)

                Appellant claims that A[i]n the alternative, section 481.134(d) is unconstitutionally vague as

applied to Harris [appellant].@ He does not contend the statute is unconstitutional on its face.

                In determining a statute=s constitutionality, we begin with a presumption of the statute=s

validity. See State v. Wofford, 34 S.W.2d 671 (Tex. App.CAustin 2000, no pet.); Ex parte Anderson,

902 S.W.2d 695, 698 (Tex. App.CAustin 1995, pet. ref=d); Skillern v. State, 890 S.W.2d 849, 860

(Tex. App.CAustin 1994, pet. ref=d). We presume that the legislature did not act unreasonably or

arbitrarily in enacting the statute and that it had due regard for constitutional requirements. Ex parte

Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). It is the challenger=s burden to show that the

statute is unconstitutional. Anderson, 902 S.W.2d at 698. The statute must be upheld if a reasonable

construction can be ascertained which will render the statute constitutional and carry out the legislative

intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). Constitutional issues will not be

decided upon a broader basis than the record requires. State v. Garcia, 823 S.W.2d 793, 799 (Tex.

App.CSan Antonio 1992, pet. ref=d).




                                                    18
                 Questions about the constitutionality of a statute upon which a defendant=s conviction is

based should be addressed by the reviewing court on direct appeal, even when such issues are raised for

the first time on appeal. See Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987); see also

Holberg v. State, 38 S.W.3d 137, 139 n.7 (Tex. Crim. App. 2000). However, a contention that a statute

is unconstitutional as applied to an accused because of vagueness and uncertainty must be asserted in the

trial court or it is waived. See Curry v. State, 910 S.W.2d 490, 496 n.2 (Tex. Crim. App. 1995); Garcia

v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994); State v. West, 20 S.W.3d 867, 873 (Tex.

App.CDallas 2000, pet. ref=d); Sullivan v. State, 986 S.W.2d 708, 711 (Tex. App.CDallas 1999, no

pet.). In Bader v. State, 15 S.W.3d 599, 603 (Tex. App.CAustin 2000, pet. ref=d), this Court explained

that Rabb was applicable to facial constitutional challenge to a statute on appeal and why the Aas applied@

challenge called for a different rule.

                 In the instant case, there was no objection in the trial court to the constitutionality of section

481.134(d)(1) Aas applied@ to appellant. Thus, the point of error is not before this Court for review.

                 The judgment is affirmed.




                                                    __________________________________________

                                                    John F. Onion, Jr., Justice

Before Justices Kidd, Yeakel and Onion*

Affirmed


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Filed: February 13, 2003

Publish



*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.
    See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).




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