                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo

                                          No. 07-14-00095-CR


                                 MICHAEL BRIDGES, APPELLANT

                                                   V.

                                THE STATE OF TEXAS, APPELLEE

                               On Appeal from the 251st District Court
                                        Randall County, Texas
                      Trial Court No. 24,140-C, Honorable Ana Estevez, Presiding

                                         December 17, 2014

                                              OPINION
                         Before CAMPBELL and HANCOCK and PIRTLE, JJ.


         Appellant, Michael Bridges, appeals the trial court’s judgment of conviction in

which he was sentenced to sixty-five years’ imprisonment for the offense of possession

of a controlled substance, methamphetamine, in the amount of less than one gram

within a drug-free zone.1 On appeal, appellant contends that proof of a culpable mental

state as to the location of the offense in a drug-free zone was a requisite element of the

offense charged.          He also contends that the trial court’s charge to the jury was
         1
             See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)–(b) (West 2010), § 481.134(d) (West Supp.
2014).
egregiously harmful in that it omitted the culpable mental state as to the location of the

offense within a drug-free zone. We will affirm.


                             Factual and Procedural History


      In February 2013, the Allante family lived within 1000 yards of an early learning

academy. One day, Mrs. Allante looked out the window and noticed that a strange

man, later identified as appellant, was in the family’s backyard and was rummaging

around the shed with his pants down. Mrs. Allante called 911 while Mr. Allante kept

appellant under control in the backyard. Officers Cynthia Palacios and Jay Puckett

responded.


      When the officers approached appellant, they noticed that he wielded a remote

control, that he repeatedly insisted that he was looking for an explosive device, and that

he also explained that he was looking for a place to go to relieve himself. During the

course of their interaction, he also made several obscene comments to Officer Palacios.

The officers arrested appellant for criminal trespass and transported him to the police

station. Once at the station, he underwent a more thorough search that yielded a clear

plastic baggie that was found to have less than one gram of methamphetamine in it.

Appellant was charged with possession of that methamphetamine within a drug-free

zone, being that the Allante residence was very near the early learning academy.


      The Randall County jury ultimately found him guilty of possession of a controlled

substance within a drug-free zone and recommended punishment at sixty-five years’

imprisonment. The trial court sentenced appellant accordingly.



                                            2
       Although, at trial, appellant maintained that he did not have the baggie in his

pocket at the scene, hypothesizing that the officers took the baggie from appellant’s

hotel room and later placed the baggie on appellant’s person so that it appeared

“miraculously” at the jail, appellant seems to have abandoned that position on appeal

and contends, instead, that the State was required to prove that appellant acted with a

culpable mental state as to his location within a drug-free zone. He also contends that

the trial court’s charge to the jury omitted that element and was erroneous in its

omission.


                             Mens Rea as to Drug-Free Zone


       As a foundation to his contentions concerning this issue, appellant posits that the

Texas Health and Safety Code creates two separate offenses: (1) possession, as

outlined in sections 481.115(a) and (b); and (2) possession in a drug-free zone, as

outlined in section 481.134(d).     That being the position he takes, appellant further

contends that the State was required to prove all the elements of the separate offense

criminalized by section 481.134(d), including a culpable mental state with respect to the

actor’s location in a drug-free zone.


       Appellant relies heavily on language from a sister court describing delivery of a

controlled substance and delivery of a controlled substance within a drug-free zone as

“two separate and distinct offenses.” See Harris v. State, 125 S.W.3d 45, 50 (Tex.

App.—Austin 2003, pet. dism’d). And, perhaps, facially, such language could be read to

support appellant’s position. The context of the discussion, however, reveals that the

cited language deals with whether the issue of the drug-free zone is an issue to be


                                            3
addressed at the guilt/innocence phase or the punishment phase of trial. See id. at 51–

52. Harris does not lend direct support to appellant’s contention that the State must

prove a culpable mental state as to the location of the offense within a drug-free zone.


      To the contrary, a good deal of authority holds that the opposite is true, that the

State need not prove a culpable mental state with respect to the location of the offense.

See Uribe v. State, 573 S.W.2d 819, 821 (Tex. Crim. App. 1978) (holding that it was not

necessary to allege separate culpable mental state to raise penalty for offense of

carrying handgun on premises where alcohol was sold). The Dallas Court has held that

“the offense created by sections 481.112(a) and 481.134(c) does not require a culpable

mental state beyond that contained in section 481.112(c).” See Williams v. State, 127

S.W.3d 442, 445 (Tex. App.—Dallas 2004, pet. ref’d) (citing Uribe, 573 S.W.2d at 821,

and United States v. Koons, 300 F.3d 985, 993 (8th Cir. 2002)). The Texarkana Court

also addressed the issue, concluding, too, that the mens rea is connected with the

wrongful act and observing that nothing suggests that there must also be a separate

intent to commit the act in a particular place. See Fluellen v. State, 104 S.W.3d 152,

165–66 (Tex. App.—Texarkana 2003, no pet.) (citing Uribe, 573 S.W.2d at 821). This

Court has come to the same conclusion. See Shaw v. State, No. 07-03-00301-CR,

2004 Tex. App. LEXIS 3798, at *2–3 (Tex. App.—Amarillo Apr. 29, 2004, no pet.) (mem.

op., not designated for publication). We concluded that the fact that the offense took

place in a drug-free zone enhances the punishment by elevating the offense. See id. at

*2. The mens rea contemplated by the Texas Penal Code provision relates to the

wrongful act: possessing the controlled substance. Id. We concluded that the State




                                            4
need not allege or prove that an accused had a particular mens rea with regard to the

location at which he possessed the controlled substance. See id. at *2–3.


         The foregoing being the state of the law on the issue, we are disinclined to hold

contrary to that law that the State must prove a culpable mental state with respect to the

location of the offense within a drug-free zone. We overrule appellant’s first point of

error.


                                     Jury Charge Error


         Appellant’s second issue takes a similar position framed as a jury charge issue.

His issue is conditioned on section 481.134(d) creating a separate offense in that the

State must prove a culpable mental state as to the location of the offense. Having

concluded that section 481.134(d) does not create a separate offense in the sense that

appellant advances, we overrule his second point of error based on the same reasoning

and the same authority as cited with respect to his first issue.


                                        Conclusion


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

conviction. See TEX. R. APP. P. 43.2(a).




                                                 Mackey K. Hancock
                                                     Justice

Publish.




                                             5
