                                                                             PD-0162-15
                      PD-0162-15                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                          Transmitted 2/10/2015 1:37:58 PM
                                                            Accepted 2/12/2015 8:25:38 AM
                                                                              ABEL ACOSTA
                      NO. __________________                                          CLERK




                             TO THE

COURT OF CRIMINAL APPEALS
                           OF TEXAS

                          ***************

               MICHAEL BRIDGES
                                            Petitioner,
                                v.

            THE STATE OF TEXAS
                                            Respondent.
                          ***************
 PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
  07-14-00095-CR FROM THE SEVENTH COURT OF APPEALS,
      AND IN CAUSE NUMBER 24,140-C FROM THE 251st
          DISTRICT COURT OF RANDALL COUNTY
                          ***************

PETITION FOR DISCRETIONARY REVIEW
                          ***************

                                     John Bennett
                                     Post Office Box 19144
                                     Amarillo, TX 79114
  February 12, 2015
                                     Telephone: (806) 282-4455
                                     Fax: (806) 398-1988
                                     Email: AppealsAttorney@gmail.com
                                     State Bar No. 00785691
                                     Attorney pro bono for the Petitioner

      THE PETITIONER REQUESTS ORAL ARGUMENT
        IDENTITY OF JUDGE, PARTIES AND COUNSEL

1.   Trial Judge

     The Honorable Ana C. Estevez
     Judge, 251st District Court of Randall County

2.   Petitioner

     Michael Bridges

     Trial Counsel:             Richard King (State Bar No. 50511715)
                                13661 Highway 181, #19
                                Sinton, Texas 78387
                                Telephone: (806) 654-2375

     Appellate Counsel:         John Bennett (State Bar No. 00785691)
                                P.O. Box 19144
                                Amarillo, Texas 79114
                                Telephone: (806) 282-4455

3.   Respondent

     The State of Texas

     Trial Counsel:             David Blount (State Bar No. 04300550)
                                Assistant Criminal District Attorney
                                Randall County
                                2309 Russell Long Boulevard, Suite 120
                                Canyon, Texas 79015
                                Telephone: (806) 468-5570

     Appellate Counsel:         Kristy Wright (State Bar No. 00798601)
                                Assistant Criminal District Attorney
                                Randall County
                                2309 Russell Long Boulevard, Suite 120
                                Canyon, Texas 79015
                                Telephone: (806) 468-5570


                                      2
                                      TABLE OF CONTENTS

Identity of Judge, Parties and Counsel..................................................................2

Index of Authorities ..............................................................................................4

Statement Regarding Oral Argument ...................................................................7

Statement of the Case............................................................................................7

Statement of Procedural History...........................................................................7

Ground for Review ...............................................................................................7


               Is TEX. HEALTH & SAFETY CODE § 481.134(d) a
         separate offense or a mere punishment clause?


Argument ..............................................................................................................8

Prayer for Relief..................................................................................................11

Certificate of Compliance ...................................................................................11

Certificate of Service ..........................................................................................12

Opinion and overruling of Rehearing Below............................ following page 12




                                                           3
                                   INDEX OF AUTHORITIES

Cases

Bridges v. State, __ S.W.3d __, 2014 WL 7204720
      (Tex.App. – Amarillo 2014) .......................................................................7

Crabtree v. State, 389 S.W.3d 820 (Tex.Crim.App. 2012) ................................10

Harris v. State, 125 S.W.3d 45 (Tex.App. – Austin 2003,
      (pet. dism.) ...............................................................................................7,9

Uribe v. State, 573 S.W.2d 819 (Tex.Crim.App. 1978) ......................................9


Statutory Provisions

TEX. HEALTH & SAFETY CODE ANN. § 481.134
     (Vernon supp. 2013) ...................................................................................7

TEX. HEALTH & SAFETY CODE ANN. § 481.134(b)
     (Vernon supp. 2013) ..............................................................................8,10

TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)
     (Vernon supp. 2013) .................................................................................10

TEX. HEALTH & SAFETY CODE ANN. § 481.134(d)
     (Vernon supp. 2013) ............................................................................. 7-10

TEX. PEN. CODE ANN. § 6.02(b) (Vernon supp. 2013) ............................... 8-9

TEX. PEN. CODE ANN. 12.42(d) (Vernon supp. 2013) ....................................8

TEX. PEN. CODE ANN. 12.425(b) (Vernon supp. 2013) ..................................8


Legislative Action

Acts 1993, 73rd Leg. Ch. 888, §1, eff. September 1, 1993 ...................................9


                                                          4
Rule

TEX. R. APP. P. 66.3(a) .......................................................................................8


Published Article

Richard Martindale, 38 The Prosecutor (at
      www.tdcaa.com/node/2494) (2008) ....................................................... 7-8




                                                       5
                           NO. __________________


                                     TO THE

COURT OF CRIMINAL APPEALS
                                     OF TEXAS

                                ***************

                    MICHAEL BRIDGES
                                                   Petitioner,
                                        v.

                 THE STATE OF TEXAS
                                                   Respondent.
                                ***************
    PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
     07-14-00095-CR FROM THE SEVENTH COURT OF APPEALS,
         AND IN CAUSE NUMBER 24,140-C FROM THE 251st
             DISTRICT COURT OF RANDALL COUNTY
                                ***************

PETITION FOR DISCRETIONARY REVIEW
                                ***************


To the Honorable Judges of the Court of Criminal Appeals:

      COMES NOW Michael Bridges, petitioner in the above cause, and

submits this petition in support of his request for a new sentencing hearing with

a punishment range of two to 20 years or for a new trial, or for remand to the

court of appeals for new analysis.


                                        6
           STATEMENT REGARDING ORAL ARGUMENT

      Since the opinion issued here by the Seventh Court of Appeals conflicts

with that of the Third Court of Appeals, the petitioner requests oral argument.



                       STATEMENT OF THE CASE

      The petitioner pled not guilty to a charge of possession of under a gram of

methamphetamine in a drug-free zone, but a jury convicted him and, finding true

two prior felonies alleged for enhancement, returned a sentencing verdict of 65

years’ imprisonment.



             STATEMENT OF PROCEDURAL HISTORY

      The Seventh Court of Appeals affirmed the conviction in a published

opinion on December 17, 2014. Bridges v. State, __ S.W.3d __, 2014 WL

7204720 (Tex.App. – Amarillo 2014) (attached). A motion for rehearing was

filed on December 29, 2014 but overruled without opinion on January 15, 2014.



                         GROUND FOR REVIEW

      Is TEX. HEALTH & SAFETY CODE § 481.134(d) a separate offense or

a mere punishment clause?




                                        7
                                   ARGUMENT

      The court of appeals’ decision conflicts with that of another court of

appeals on the same issue. TEX. R. APP. P. 66.3(a).


      …the courts have held that offenses that fit into the provision of
      subsections (b) or (d) are separate and distinct 3rd degree felonies and not
      enhanced versions of the offenses listed in those sections.

Richard Martindale, 38 The Prosecutor (at www.tdcaa.com/node/2494) (2008),

citing Harris v. State, 125 S.W.3d 45, 50-1 (Tex.App. – Austin 2003, pet. dism.)

and an unpublished case. Harris noted that § 481.134(d) is not a punishment

clause, but a separate offense in itself:

      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.

Harris, 125 S.W.3d at 50.

      Possession of less than a gram of methamphetamine, normally a state jail

felony, was here a third-degree under § 481.134(d) due to a school’s proximity.

The two prior felonies used for enhancement would have triggered a second-

degree sentencing range from a state jail felony. TEX. PEN. CODE ANN.

12.425(b) (Vernon supp. 2013). But since a third-degree was involved, the first-

degree range applied. TEX. PEN. CODE ANN. 12.42(d) (Vernon supp. 2013).

The 65-year sentence assessed, of course, exceeded the second-degree range.



                                            8
      But the guilt/innocence jury charge lacked any requirement of a culpable

mental state regarding the proximity of the school, which is necessary if §

481.134(d) is a separate offense under Harris; a culpable mental state is required

unless the offense’s definition “plainly dispenses with any mental element,

which § 481.134(d) does not. TEX. PEN. CODE ANN. § 6.02(b) (Vernon supp.

2013). The charge here merely asked the jury to decide whether the possession

occurred in a drug-free zone. See Appellant’s Brief, below, Appendix Exhibit

C. Since the evidence that the petitioner knew a school was nearby was tenuous,

the petitioner claimed the evidence was insufficient to convict him of a third-

degree felony, or alternately that the jury charge caused egregious harm.

      Yet contrary to Harris and Mr. Martindale’s article above, the court of

appeals ruled that none of the subsections of § 481.134 form separate offenses.

Instead it held that Harris might “facially … be read to support” the petitioner’s

petition, but that the “cited language” of Harris “deals with whether the issue of

the drug-free zone is an issue to be addressed at the guilt/innocence phase or the

punishment phase of trial.” (Opinion, p. 3-4). The Opinion also cites Uribe v.

State, 573 S.W.2d 819 (Tex.Crim.App. 1978), which predated the appearance of

§ 481.134 in 1993 (See Acts 1993, 73rd Leg. Ch. 888, §1, eff. September 1,

1993), as well as other decisions from courts of appeals holding that no culpable

mental state need be proven regarding drug-free zones. (Opinion, p. 3-5).


                                        9
      And the court of appeals did not address the detailed argument in the

petitioner’s opening Brief that the language the Legislature used in §

481.134(b), (c) and (d) – each of which is worded differently from the others –

might entail that one or more might form a separate offense and the other or

others a punishment clause. The courts presume that “every word has been used

for a purpose and that each word, phrase, clause and sentence should be given

effect if reasonably possible.”      Crabtree v. State, 389 S.W.3d 820, 825

(Tex.Crim.App. 2012).        Here subsection (b) may well be interpreted as a

punishment clause:

      An offense otherwise punishable as a state jail felony under Section
      481.112, 481.113, 481.114, or 481.120 is punishable as a felony of the
      third degree…

§ 481.134(b) (emphasis added). And (c) is more obviously a punishment clause:

      The minimum term of confinement or imprisonment for an offense
      otherwise punishable under [earlier sections of the Controlled
      Substances Act] is increased by five years …

§ 481.134(c) (emphases added). But subsection (d), at issue here, appears to

create a separate offense:

      An offense otherwise punishable under Section 481.112(b), 481.113(b),
      481.114(b), 481.115(b), 481.116(b), 481.1161(b)(3), 481.120(b)(3), or
      481.121(b)(3) is a felony of the third degree…

§ 481.134(d) (emphasis added).




                                        10
                            PRAYER FOR RELIEF

      The petitioner therefore prays the Court grant discretionary review and

remand the cause to the trial court for resentencing or a new trial, or remand the

case to the court of appeals for new analysis, or grant all appropriate relief.

                                              Respectfully submitted,

                                              /s/ JOHN BENNETT
                                              John Bennett
                                              Post Office Box 19144
                                              Amarillo, TX 79114
                                              Telephone: (806) 282-4455
                                              Fax: (806) 398-1988
                                              Email: AppealsAttorney@gmail.com
                                              State Bar No. 00785691
                                              Attorney pro bono for the Petitioner




                    CERTIFICATE OF COMPLIANCE

      I certify that this entire PDR contains 1,536 words.

                                              /s/ JOHN BENNETT
                                              John Bennett


                                         11
                     CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing PDR has

been served on Kristy Wright, Esq., Assistant Criminal District Attorney for

Randall   County,   by   personal   delivery   and   by   email   to   her   at

klscrivner@yahoo.com, and on Lisa McMinn, Esq., State Prosecuting Attorney,

by United States Mail, first class delivery prepaid, to her at P.O. Box 13046,

Austin, Texas 78711, both on February 10, 2015, and by email to her at

lisa.mcminn@spa.texas.gov.

                                           /s/ JOHN BENNETT
                                           John Bennett




                                      12
                                                                                     FILE COPY




                                   No. 07-14-00095-CR


Michael Bridges                              §     From the 251st District Court of
 Appellant                                           Randall County
                                             §
v.                                                 December 17, 2014
                                             §
The State of Texas                                 Opinion by Justice Hancock
 Appellee                                    §



                                   J U D G M E N T

       Pursuant to the opinion of the Court dated December 17, 2014, it is ordered,

adjudged and decreed that the judgment of the trial court be affirmed.

       It is further ordered that appellant pay all costs in this behalf expended for which

let execution issue.

       It is further ordered that this decision be certified below for observance.

                                           oOo
                                         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
                                                                                  FILE COPY




      BRIAN QUINN
       Chief Justice
                                  Court of Appeals                              VIVIAN LONG
                                                                                    Clerk

  JAMES T. CAMPBELL
        Justice
                                  Seventh District of Texas                   MAILING ADDRESS:
  MACKEY K. HANCOCK
        Justice
                                Potter County Courts Building                   P. O. Box 9540
                                                                                  79105-9540
                                 501 S. Fillmore, Suite 2-A
   PATRICK A. PIRTLE
         Justice                 Amarillo, Texas 79101-2449                     (806) 342-2650

                                www.txcourts.gov/7thcoa.aspx

                                     January 15, 2015

John Bennett                                   Kristy Wright
Attorney at Law                                Asst. Criminal District Attorney
P. O. Box 19144                                2309 Russell Long Blvd., Suite 120
Amarillo, TX 79114                             Canyon, TX 79015
* DELIVERED VIA E-MAIL *                       * DELIVERED VIA E-MAIL *

RE:      Case Number: 07-14-00095-CR
         Trial Court Case Number: 24,140-C

Style: Michael Bridges v. The State of Texas

Dear Counsel:

         By Order of the Court, Appellant’s Motion for Rehearing is this day overruled.

                                                  Very truly yours,
                                                  Vivian Long
                                                  VIVIAN LONG, CLERK

xc:       Honorable Ana Estevez (DELIVERED VIA E-MAIL)
          Jo Carter (DELIVERED VIA E-MAIL)
