                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00213-CR


CEDRIK PIERT                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION 1

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      A jury convicted Appellant Cedrik Piert of delivery of less than one gram of

cocaine in a drug-free zone. 2 Upon his plea of true at the trial on punishment,

the jury found the enhancement allegations true and assessed his punishment at




      1
      See Tex. R. App. P. 47.4.
      2
       See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), .112(a)–(b) (West
2010), § 481.134(b), (d) (West Supp. 2013).
sixty-five years’ confinement and a $10,000 fine. The trial court sentenced him

accordingly.

      In two issues, Appellant challenges the sufficiency of the evidence to

support the jury’s verdict of guilt of delivery of less than one gram of cocaine and

the jury’s verdict that he committed the offense within a drug-free zone. Because

we hold that the evidence is sufficient to support the jury’s verdict in both

instances, we affirm the trial court’s judgment.

Summary of the Facts

      Two police officers made an undercover buy of cocaine at a Valero gas

station. One of the officers asked the suspect his name, and he replied that his

name was Solo. After the purchase was complete, the suspect walked towards

some apartments and into a breezeway. The undercover officers drove off and

notified uniformed officers to make the arrest.      The uniformed officers were

delayed at a signal light, however, and when they arrived at the location where

the suspect was last seen, they were unable to find him.

      The next day, the undercover officers returned to the Valero station to look

for the suspect.   When they spotted Appellant, the officers called uniformed

officers and gave them a description of him.        When the uniformed officers

arrived, they spoke with Appellant while the undercover officers drove down the

same side of the street and identified him as the person from whom they had

bought the cocaine the day before. One of the undercover officers, Detective

Jennifer Mamola, obtained an arrest warrant, and Appellant was arrested.


                                         2
Sufficiency of the Evidence

       Standard of Review

       In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. 3 This standard gives full play

to the responsibility of the trier of fact to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts. 4

       The trier of fact is the sole judge of the weight and credibility of the

evidence. 5 Thus, when performing an evidentiary sufficiency review, we may not

re-evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. 6   Instead, we determine whether the necessary

inferences are reasonable based upon the cumulative force of the evidence

when viewed in the light most favorable to the verdict. 7 We must presume that



       3
      Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
       4
      Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350
S.W.3d 588, 595 (Tex. Crim. App. 2011).
       5
      See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393
S.W.3d at 768.
       6
        Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).


                                         3
the factfinder resolved any conflicting inferences in favor of the verdict and defer

to that resolution. 8

       We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. 9       Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily restrict the State’s theories

of liability, and adequately describes the particular offense for which the

defendant was tried. 10       The law as authorized by the indictment means the

statutory elements of the charged offense as modified by the factual details and

legal theories contained in the charging instrument. 11

       Delivery

       In his first issue, Appellant contends that the evidence is insufficient to

support his conviction for delivery of less than a gram of a penalty group 1

substance.      He argues that conflicts in the testimony of the two undercover

       7
      Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
       8
        Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Temple, 390 S.W.3d at 360.
       9
       Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v. State, 389
S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime
are determined by state law.”).
       10
           Byrd, 336 S.W.3d at 246.
       11
        See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013);
Curry v. State, 30 S.W.3d 394, 404–05 (Tex. Crim. App. 2000).


                                           4
officers undermine the sufficiency of the evidence, especially the identity of the

seller of the cocaine.    Both undercover officers testified at trial, and both

identified Appellant as the man who sold them the cocaine. Detective Chau

Nguyen testified that he knew that the suspect and Appellant were one and the

same because on the day of Appellant’s arrest, he wore the same clothes that

the suspect had worn the previous day. Specifically, the person from whom the

officers purchased drugs was a black male, a little over six feet tall and of a thin

build, who was wearing a black or navy blue T-shirt and khaki or beige shorts

and had a Bluetooth earpiece.        Detective Mamola also testified that when

Appellant was arrested, he was wearing the same clothes as the person from

whom she had bought cocaine the previous night. She described the man as a

black male, approximately six feet tall, who was wearing a black tank and jean

shorts and had a Bluetooth earpiece.

      A reviewing court must defer to the trier of fact’s responsibility to resolve

conflicts in testimony, such as two-way evidence, and to draw reasonable

inferences from basic facts to ultimate facts. 12 We do not reevaluate the weight

and credibility of the evidence. We only ensure that the jury reached a rational

decision. 13 Considering the record as a whole, we must hold that the jury’s




      12
        Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
      13
        Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).


                                         5
decision was rational and that the evidence is sufficient to support it.        We

overrule Appellant’s first issue.

       Drug-Free Zone Enhancement

       An offense otherwise punishable as a state jail felony under section

481.112 of the Texas Health and Safety Code is punishable as a third-degree

felony if it is shown during trial that the offense was committed “in, on, or within

1,000 feet of . . . a public or private youth center.” 14 A “[y]outh center” is “any

recreational facility or gymnasium that . . . is intended primarily for use by

persons who are 17 years of age or younger” and “regularly provides athletic,

civic, or cultural activities.” 15

       The indictment alleged in pertinent part that Appellant had delivered the

cocaine to Detective Mamola “in, on, or within 1,000 feet of the premises of a

private youth center, namely, ASI Gym, to-wit: 4051 Rosemeade Parkway,

Dallas, Denton County, Texas.” The facility is a gymnastics center where youth

are taught to do gymnastics. The jury returned an affirmative finding regarding

the drug-free zone special issue. The evidence, however, showed that the actual

name of the facility was ASI Gymnasium and that it was located across the street

from and within 1,000 feet of the Valero station, but it was in Collin County, not

Denton County. In his second issue, Appellant contends that because it was


       14
         Tex. Health & Safety Code Ann. § 481.134(b).
       15
         Id. § 481.134(a)(7).


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impossible for the State to prove its allegations, the evidence is insufficient to

prove the offense enhancement allegation that the delivery occurred in a drug-

free zone.

      We see little difference between “Gymnasium” and “Gym.”             The slight

variation between the name of the facility and its name on the indictment is

sufficiently similar to slight variations in names of complainants to fall within the

same applicable rule.     In Fuller v. State, 16 the indictment alleged that the

defendant committed the offense against “Olen M. Fuller,” who was his father.

The prosecution proved that the defendant injured his elderly father by hitting him

in the face with his fist. During trial, however, the father was referred to only as

“Mr. Fuller” or as “Buddy.”    The prosecution presented no evidence that the

father was “Olen M. Fuller.” Consistent with the indictment’s allegation, the jury

charge instructed the jury to convict if it found that appellant committed the

offense against “Olen M. Fuller.”        The Texas Court of Criminal Appeals

explained,

             The federal constitutional issue in this case is whether the victim’s
      name is a substantive element of the criminal offense as defined by state
      law. State law, in relevant part, defines “element of the offense” as the
      forbidden conduct with the required culpability. State law in Section
      22.04(a)(3) further defines the offense as “injury to an elderly individual.”
      State law does not define the victim’s name as a substantive element of
      the offense by, for example, defining the offense as “injury to an elderly
      individual named Olen M. Fuller.”



      16
        73 S.W.3d 250, 251 (Tex. Crim. App. 2002).


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             The prosecution’s failure to prove the victim’s name exactly as
      alleged in the indictment does not, therefore, make the evidence
      insufficient to support appellant’s conviction under Jackson v. Virginia.
      The evidence that appellant injured the elderly victim by hitting him in the
      face with his fist satisfies the Jackson v. Virginia standard because it
      constitutes proof of every fact necessary to constitute the crime charged of
      “injury to an elderly individual.”

             We must now decide whether the evidence was sufficient to support
      appellant’s conviction under Gollihar’s state law sufficiency standard. In
      addressing this claim, we must recognize that Gollihar also decided that a
      materiality inquiry should be made in all cases, like this one, that involve a
      “sufficiency of the evidence claim based upon a variance between the
      indictment and the proof” and that only a “material” variance will render the
      evidence insufficient. In making a materiality inquiry applicable to all
      variance cases, Gollihar criticized our decision in Pedrosa v. State, a
      similar variance case, which did not apply a materiality inquiry to the
      prosecution’s failure to prove the victim’s name exactly as alleged in the
      indictment.

             Gollihar also decided that this “materiality” inquiry requires a
      determination of whether the variance deprived the defendant of notice of
      the charges or whether the variance subjects the defendant to the risk of
      later being prosecuted for the same offense. And, finally, Gollihar also
      decided that a “hypothetically correct jury charge” takes into consideration
      the material variance doctrine, meaning that “[a]llegations giving rise to
      immaterial variances may be disregarded in the hypothetically correct
      charge, but allegations giving rise to material variances must be included.”

             In this case, the prosecution’s failure to prove the victim’s name
      exactly as alleged in the indictment does not make the evidence
      insufficient under Gollihar. The victim’s name is not a statutory element of
      the offense. 17

      If the State can go that far wrong in proving the name of the complainant,

and if the name of the complainant is so completely irrelevant to the pleading and

the proof, we would be hard-pressed to hold that pleading “Gym” rather than


      17
       Id. at 252–54 (citations and footnotes omitted).


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“Gymnasium” in the name of a youth center that provides the drug-free zone

element of an enhancement paragraph is sufficiently significant to require

reversal of the conviction. Had there been evidence of another location with a

similar name that qualified as a youth center but that was outside the 1,000-foot

zone, our analysis perhaps would have been different. Here, there is nothing to

suggest that pleading the wrong name deprived Appellant of notice of the charge

against him, caused so much confusion that it impinged on his ability to prepare

an adequate defense at trial, or subjected him to being prosecuted again for the

same offense. 18

      The variance between the county alleged as the location of the youth

center (Denton) and the evidence of the actual county in which the youth center

is located (Collin) is likewise immaterial, given that (1) the street address of the

youth center was provided in the indictment and (2) there was no evidence that

another youth center was located within 1,000 feet of the Valero gas station

where Appellant sold cocaine to the undercover officers. 19 Consequently, we are

compelled to overrule Appellant’s second issue.


      18
        See id.
      19
        See id.; Drouillard v. State, No. 02-04-00097-CR, 2005 WL 737019, at *1
(Tex. App.—Fort Worth Mar. 31, 2005, no pet.) (mem. op., not designated for
publication) (holding variance between enhancement allegation elevating driving
while intoxicated to a felony and the evidence thereof immaterial when Drouillard
could not have been misled that State was alleging a different offense and the
proof of the cause number, date, and trial court related to the enhancing offense
matched the allegation).


                                         9
Conclusion

      Having overruled Appellant’s two issues on appeal, we affirm the trial

court’s judgment.




                                              /s/ Lee Ann Dauphinot
                                              LEE ANN DAUPHINOT
                                              JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 5, 2014




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