                                  NO. 07-11-00047-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  OCTOBER 17, 2011


                           ADRIAN L. WALKER, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2009-425,747; HONORABLE CECIL G. PURYEAR, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, Adrian L. Walker, appeals his conviction for the offense of possession

of a controlled substance, cocaine, in an amount of one gram or more, but less than

four grams.1 Appellant’s punishment was enhanced by the allegation that appellant had

been previously convicted of a felony offense.2 Further, the indictment contained an

allegation that the offense occurred within a drug-free zone, specifically, the indictment

alleged that the offense occurred within 1,000 feet of real property owned by a school,


      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).
      2
          See TEX. PENAL CODE ANN. § 12.42(a)(3) (West 2011).
namely Bozeman Elementary School. After finding appellant guilty of possession of

cocaine, the jury answered the special issue “We Do” regarding the allegation that the

offense was committed in a drug-free zone. Appellant chose to go to the trial court for

punishment and, after hearing the evidence on punishment, the trial court sentenced

appellant to confinement in the Institutional Division of the Texas Department of

Criminal Justice (ID-TDCJ) for a period of ten years. Appellant perfected his appeal and

presents two issues to this Court, both of which contest the sufficiency of the evidence

to sustain the conviction due to a material variance between the allegation of the drug-

free zone in the indictment and the proof presented before the trial court. We will affirm.


                          Factual and Procedural Background


       On November 23, 2009, officers Joshua Franco and Ernie Garcia responded to a

“check subject” call at 3022 East 2nd Place in Lubbock, Texas. Upon arriving at the

scene, Franco parked his patrol car behind appellant’s vehicle. Franco found appellant

asleep in a parked vehicle with the motor running and its headlights on.            Franco

approached the driver’s side of the car and attempted to arouse appellant. Franco

found the driver’s side door locked and he was unable to wake appellant up. Garcia

arrived at almost the same instant as Franco and parked his vehicle at the front of the

subject vehicle. Garcia approached the passenger’s side of the vehicle and found the

door unlocked and a female subject asleep on the passenger side. Garcia was able to

wake up the female passenger. The female passenger then reached across appellant

and unlocked the driver’s side door.




                                             2
       As Franco woke appellant up, he noticed appellant’s eyes were very bloodshot

and there was a strong odor of an alcoholic beverage present. Appellant was placed

under arrest for public intoxication. As appellant was patted down during the arrest,

Franco discovered a rock of crack cocaine in appellant’s front left pocket. Subsequent

testing proved that the rock was crack cocaine and weighed 2.16 grams.


       The indictment in appellant’s case contained a punishment enhancement

paragraph that alleged that the possession of cocaine occurred “within 1,000 feet of real

property owned by a school, namely, Bozeman Elementary School.”3             During trial,

Franco testified that the offense occurred approximately 300 feet south of Bozeman

Elementary School. Skipper Wood, a civil engineer with the City of Lubbock, testified

that the offense occurred in a drug-free zone because appellant was arrested within

1,000 feet of Bozeman Elementary School. Wood’s testimony was based upon the use

of aerial maps and plotting a 1,000 foot radius from Bozeman Elementary School. The

radius, when plotted, took in the location of appellant’s arrest.


       At the conclusion of the evidence, the trial court presented the court’s charge to

the jury. The primary offense of possession of a controlled substance, namely, cocaine

in an amount of more than one gram but less than four grams was submitted to the jury.

Additionally, a special issue was submitted to the jury that inquired whether the offense

was committed in a drug-free zone, “to-wit: within 1,000 feet of the premises of a school,




       3
           See TEX. HEALTH & SAFETY CODE ANN. § 481.134(d) (West 2010).
                                              3
further described as Bozeman Elementary School.”4 There were no objections lodged

to the special issue as submitted to the jury. The jury answered “We Do” to the special

issue.


         The trial court then conducted a punishment hearing. After hearing the evidence

on the issue of punishment and appellant’s plea of true to the prior felony enhancement

paragraph, the trial court sentenced appellant to ten years confinement in the ID-TDCJ.

Appellant brings forth two issues that complain about the sufficiency of the evidence.

First, appellant contends that the evidence is insufficient to sustain the conviction of

possession of cocaine within 1,000 feet of real property owned by a school, namely,

Bozeman Elementary School because of a material variance between the indictment

and the proof at trial.    Second, appellant contends that because the evidence is

insufficient to sustain the finding of a drug-free zone, as alleged in the indictment, the

minimum term of confinement and fine should not have been increased pursuant to

section 481.134(c)(1)5 of the Texas Health & Safety Code.6            We disagree with

appellant’s contentions and will affirm the trial court’s judgment.




         4
        There was no objection lodged to this special issue even though the issue
submitted did not track the language of the indictment’s drug-free zone allegation. See
TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)(1) (West 2010).
         5
         Appellant’s brief recites the section of the Health and Safety Code at play as
section 481.139(c)(1), which appears to be a typographical error as the correct section
cited at other parts of appellant’s brief is section 481.134(c)(1).
         6
        Further reference to the Texas Health & Safety Code will be by reference to “§
____” or “section ____.”
                                              4
                                   Standard of Review


       In assessing the sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a fact finder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”              Id.

(Cochran, J., concurring).    When reviewing all of the evidence under the Jackson

standard of review, the ultimate question is whether the jury’s finding of guilt was a

rational finding.   See id. at 906, 907 n.26 (discussing Judge Cochran’s dissenting

opinion in Watson v. State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining

the proper application of a single evidentiary standard of review). “[T]he reviewing court

is required to defer to the jury’s credibility and weight determinations because the jury is

the sole judge of the witnesses’ credibility and the weight to be given their testimony.”

Id. at 899.


       The sufficiency standard set forth in Jackson is measured against a

hypothetically correct jury charge.      See Malik v. State, 953 S.W.2d 234, 240

(Tex.Crim.App. 1997). Such a charge is one that sets forth the law, is authorized by the

                                             5
indictment, and does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried. Id. According to Young v. State,

the hypothetically correct jury charge requirement of Malik applies equally to any

allegation of punishment enhancement, such as a drug-free zone allegation. Young v.

State, 14 S.W.3d 748, 750 (Tex.Crim.App. 2000). The “‘law’ as ‘authorized by the

indictment’ must be the statutory elements” of the offense charged “as modified by the

charging instrument.” Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000).


                                  The Law of Variance


       We first look at the indictment in question. The indictment authorized a finding

that the offense occurred in a drug-free zone if the offense was “within 1,000 feet of real

property owned by a school, namely Bozeman Elementary.”                This allegation is

problematic for the Court because appellant was charged pursuant to section

481.115(c), possession of a controlled substance of one gram or more but less than

four grams. § 481.115(c). The punishment enhancement alleged was pursuant to

section 481.134(d)(1). § 481.134(d)(1). This particular drug-free zone allegation does

not apply to offenses committed pursuant to section 481.115(c).               Rather, the

enhancement as alleged applies to section 481.115(b), possession of a controlled

substance of less than one gram. § 481.115(b). To further complicate the analysis of

the variance issue is the fact that the record reveals that the special issue submitted to

the jury alleged that the offense occurred “within 1,000 feet of the premises of a school,

further described as Bozeman Elementary School.” As submitted without objection, this

                                            6
allegation of a drug-free zone is that authorized under section 481.134(c)(1).         §

481.134(c)(1). Such an allegation is the proper enhancement allegation for an offense

committed pursuant to § 481.115(c), the applicable offense of which appellant was

convicted.


Analysis


      From this procedural background, we must now address the question of

variance. Because appellant’s issues are framed as sufficiency of the evidence issues,

we must refer to a hypothetically correct jury charge. See Cada v. State, 334 S.W.3d

766, 773 (Tex.Crim.App. 2011) (citing Malik, 953 S.W.2d at 240). Such a charge is one

that accurately sets forth the applicable law and is authorized by the indictment. Id.

Further, a hypothetically correct jury charge need not incorporate allegations that would

be considered an immaterial variance.          Gollihar v. State, 46 S.W.3d 243, 256

(Tex.Crim.App. 2001).


      In the case before the Court, the immediate problem is that the charge submitted

a drug-free zone issue to the jury that appears not to have been authorized by the

indictment but is the applicable law.    Accordingly, we must determine whether the

allegation of the specific means of proving a drug-free zone, as alleged in the

indictment, is an element of the offense for purposes of variance analysis. See Cada,

334 S.W.3d at 773-74.


      In Cada, there were several alternative methods of pleading retaliation,

depending upon the specific status of the complainant. Id. at 770. These alternative

methods of pleading retaliation based upon the status of the complainant were held to
                                           7
be elements of the offense. Id. at 776. The State alleged one of the alternatives that

was not supported by the evidence and this led the Texas Court of Criminal Appeals to

determine that the variance at issue was a material variance, and, thus, the evidence

was insufficient to support the jury’s verdict. Id. at 774. Additionally, when we review

an earlier opinion of the Texas Court of Criminal Appeals, we find language that “Malik’s

principles apply equally to the affirmative findings necessary to sustain imposition of an

enhanced punishment.” Young, 14 S.W.3d at 750.


        Because the statutory scheme of the Texas Health & Safety Code provides a list

of punishment enhancements from which the State must choose, it appears that such

would be considered “elements” of the enhancement allegations.           See § 481.134;

Young, 14 S.W.3d at 750.        Those allegations, as elements of the enhancement

provision of the indictment, lead to the conclusion that there was, in fact, a variance

between the indictment and the proof of the special issue submitted by the trial court.

See Cada, 334 S.W.3d at 774. Further, because the variance related to an element of

enhancement, the variance at issue was material. See id. at 768. Accordingly, we

review the evidence to determine whether it was insufficient to prove the allegations

required by the hypothetically correct jury charge, which, here, would include the

allegation that the offense occurred “within 1,000 feet of real property owned by a

school.” See id.


        The evidence at trial was that the offense occurred within 1,000 feet of Bozeman

Elementary School. This evidence was provided by both Officer Franco and Skipper

Wood.     Franco testified that the possession occurred approximately 300 feet from

                                            8
Bozeman Elementary School. Wood testified with the aid of an aerial map that showed

a 1,000 foot arc drawn from Bozeman Elementary School. The site of the possession

fell within that arc. From the evidence at trial, we conclude that the evidence supported

a finding that the possession in question occurred within 1,000 feet of Bozeman

Elementary School. See Young, 14 S.W.3d at 754. However, this does not end our

inquiry. The next question is, was there any evidence that this possession was within

1,000 feet of real property “owned” by a school, namely, Bozeman Elementary School

as alleged in the indictment and required by the hypothetically correct jury charge.


      In Perez v. State, this Court was called upon to answer a similar question. See

Perez v. State, 332 S.W.3d 700, 703 (Tex.App.—Amarillo 2011, pet. ref’d) (citing Young

14 S.W.3d at 754). There, the contention on appeal was that there was no testimony

that the real property on which the school in question sat was “owned, rented, or leased

to a school or school board” as required by the applicable enhancement provision,

section 481.134(d)(1). Id. The Court held that based upon the evidence presented,

maps presented showing the school by name and testimony of the officers about where

the incident occurred, there was sufficient evidence for a jury’s reasonable inference

that the charged offense was within 1,000 feet of real property owned, rented, or leased

to a school or school board. Id. at 704.


      In the present case, the evidence was of the same nature and character as that

in Perez. Application of the Perez rationale leads to the conclusion that a rational jury

could have found all of the elements necessary to find appellant guilty beyond a

reasonable doubt, including the enhancement allegation in the hypothetically correct

                                            9
jury charge. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 912. Appellant’s

second issue is predicated upon the same contention of failure of the evidence and,

accordingly, is also overruled.


                                           Conclusion


       Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                                        Mackey K. Hancock
                                                             Justice




Do not publish.




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