                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00078-CR



       WILLIAM DEWAYNE WHITE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 336th District Court
                Fannin County, Texas
            Trial Court No. CR-14-25152




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Moseley
                                          OPINION
        The jury found that William Dewayne White knowingly delivered less than one gram of

methamphetamine in a drug-free zone, a third degree felony.1 After the trial court found one of

the State’s enhancement allegations “true,” White was sentenced to fifteen years’ imprisonment.

        On appeal, White argues (1) that the trial court erred in recalling and seating an alternate

juror who was allowed to leave the courtroom after the charge was read to the jury, (2) that the

statute for the offense is unconstitutional because it fails to require a culpable mental state, and

(3) that while the evidence was sufficient to show that he delivered a controlled substance, it was

insufficient to support a finding that he delivered the controlled substance while knowingly being

in a drug-free zone. We find that White failed to preserve his first two issues for appeal and that

the State was not required to prove that White’s knowing delivery of methamphetamine occurred

while he knew he was in a drug-free zone. Accordingly, we affirm the trial court’s judgment.

I.      Complaint Involving Alternate Juror Is Unpreserved

        Following voir dire, which resulted in the seating of an alternate juror, the trial court

provided comprehensive instructions to the jury that, among other things, warned them not to

discuss the case with others or perform any individual investigation. After closing arguments, the

trial court held the alternate juror and retired the remaining jurors to deliberate. The trial court

then allowed the alternate juror to leave the courtroom, but reminded him that he was subject to




1
 See TEX. HEALTH & SAFETY CODE ANN. § 481.112(b) (West 2010); Act of May 13, 2011, 82d Leg., R.S., ch. 170,
§ 6, 2011 Tex. Gen. Laws 707, 712 (amended 2015) (current version at TEX. HEALTH & SAFETY CODE ANN.
§ 481.134(d) (West Supp. 2015)).

                                                    2
recall and was to “follow all of the rules that [had] been in place.” Neither White nor the State

objected to the trial court’s decision to allow the alternate juror to leave the courtroom.

           As the jury was deliberating, the trial court discovered that one of the jurors, Marie Cooper,

was on felony community supervision for a theft offense.2 The trial court decided to release

Cooper and recall the alternate juror. White then made the following objection:

           Your Honor, for purposes of the record, we would object. I know [the alternate
           juror] has been here throughout the whole trial; however, Ms. Cooper has been in
           and out of the jury room. Who knows what they have already discussed since they
           have been in deliberations now for a little over 30, 45 minutes. We would object
           to removal. I think it prejudiced the defendant in this case and we would ask -- first
           we would object to substituting the jurors, and then we will ask that Ms. Cooper be
           removed and ask for a mistrial, as well.

On appeal, White argues that the trial court erred in failing to sequester the alternate juror and in

allowing him to leave the courtroom.3 The State argues that White’s point of error is not preserved.

We agree.

           A trial court is permitted to allow the jury to separate after the court’s charge is read “unless

the court or a party makes a motion to sequester the jury or a party timely objects to a request to

separate.” Sanchez v. State, 906 S.W.2d 176, 178 (Tex. App.—Fort Worth 1995, pet. ref’d & pet.

dism’d) (citing Krueger v. State, 843 S.W.2d 726, 728 (Tex. App.—Austin 1992, pet. ref’d)

(per curiam)); see TEX. CODE CRIM. PROC. ANN. art. 35.23 (West 2006). “Therefore, the defendant


2
    See TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(3) (West 2006).
3
 Article 33.011 of the Texas Code of Criminal Procedure states, “An alternate juror who does not replace a regular
juror shall be discharged after the jury has rendered a verdict on the guilt or innocence of the defendant . . . .” TEX.
CODE CRIM. PROC. ANN. art. 33.011 (West Supp. 2014). Citing to this Article, White argues that the alternate juror
was discharged and then permitted to return. However, it is clear that the alternate juror was specifically informed
that he could be recalled and was, in fact, recalled before the jury rendered its verdict. Thus, the alternate juror was
never discharged under Article 33.011.
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must either timely file a motion to sequester or timely object to a request to separate to preserve

for appeal a complaint that the trial court deprived the defendant of the right to have the jury

sequestered.” Sanchez, 906 S.W.2d at 178; see Polk v. State, 367 S.W.3d 449, 454 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d); Callen v. State, 303 S.W.3d 322, 326 (Tex. App.—Eastland

2009, pet. ref’d). A timely objection is one that is made at the earliest possible opportunity or one

“‘that is made before jury deliberations begin or before the jury asks to separate.’” Sanchez, 906

S.W.2d at 178 (quoting Keiser v. State, 880 S.W.2d 222, 223 (Tex. App.—Austin 1994, pet.

ref’d)). Further, Rule 33.1 of the Texas Rules of Appellate Procedure states,

       As a prerequisite to presenting a complaint for appellate review, the record must
       show that:

               (1)    the complaint was made to the trial court by a timely request,
       objection, or motion that:

                      (A)     stated the grounds for the ruling that the complaining party
               sought from the trial court with sufficient specificity to make the trial court
               aware of the complaint, unless the specific grounds were apparent from the
               context; and

               ....

               (2)     the trial court:

                      (A)      ruled on the request, objection, or motion, either expressly
               or implicitly; or

                     (B)     refused to rule on the request, objection, or motion, and the
               complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a).

       Our review of the record demonstrates that White failed to raise any objection when the

trial court permitted the alternate juror to leave. Even after the alternate juror’s return, White’s
                                                 4
objection to the trial court was related to the removal of Cooper, not to the trial court’s failure to

sequester the alternate juror. Thus, we conclude that White raised no timely and specific objection

to the trial court’s failure to seat a non-sequestered alternate juror. Accordingly, we overrule

White’s first point of error.

II.      White Failed To Preserve Any Constitutional Challenge to Section 481.134

         In his second point of error, White argues that Section 481.134(d) of the Texas Health and

Safety Code is facially unconstitutional because it “fail[s] to provide for a culpable mental state

for the drug free zone finding.” This issue is not preserved.

         The Texas Court of Criminal Appeals has held “that a defendant may not raise for the first

time on appeal a facial challenge to the constitutionality of a statute.” Karenev v. State, 281 S.W.3d

428, 434 (Tex. Crim. App. 2009).4 In his appellate brief, White admits that he raised no complaint

at trial relating to the constitutionality of Section 481.134(d). Accordingly, White has failed to

preserve his complaint for our review. See id.; Ibenyenwa, 367 S.W.3d at 422; Williams v. State,

305 S.W.3d 886, 893 (Tex. App.—Texarkana 2010, no pet.); Sony v. State, 307 S.W.3d 348, 353

(Tex. App.—San Antonio 2009, no pet.); see also Fluellen v. State, 104 S.W.3d 152, 167–68 (Tex.

App.—Texarkana 2003, no pet.). We overrule White’s second point of error.




4
 White acknowledges the holding in Karenev, but contends that it “should not be the law. . . [because it] was a plurality
opinion.” “Although the four-judge concurrence in Karenev held that the requirement that a facial challenge to a
statute be preserved is not absolute, the five-judge majority plainly stated that . . . ‘a defendant may not raise for the
first time on appeal a facial challenge to the constitutionality of a statute.’” Ibenyenwa v. State, 367 S.W.3d 420, 422
(Tex. App.—Fort Worth 2012, pet. ref’d) (quoting Karenev, 281 S.W.3d at 434). “We are bound to follow the majority
opinion in the absence of language adopting the concurrence.” Id.
                                                            5
III.   The State Was Not Required To Prove that White Was Knowingly in a Drug-Free
       Zone

       During trial, the jury heard evidence that White sold 0.24 grams of methamphetamine to a

confidential informant. The drug transaction was captured on an audio/video recording and was

played for the jury. The jury also heard testimony that the transaction took place within 1,000 feet

of the Family Life Center, a drug-free zone. White does not argue that the evidence is insufficient

to establish that he knowingly delivered methamphetamine. Instead, he argues that the State failed

to prove that White was knowingly in a drug-free zone at the time of the transaction.

       Section 481.134(d) of the Texas Health and Safety Code raises the level of offense for

delivery of a controlled substance “if it is shown on the trial of the offense that the offense was

committed: (1) . . . within 1,000 feet of any real property that is . . . the premises of a public or

private youth center . . . .” TEX. HEALTH & SAFETY CODE ANN. § 481.134(d); see Harris v. State,

125 S.W.3d 45, 51 (Tex. App.—Austin 2003, pet. ref’d, untimely filed). Section 481.134 does not

set forth a mens rea separate from the mens rea required to prove delivery of a controlled substance.

Thus, “a good deal of authority holds that . . . the State need not prove a culpable mental state with

respect to the location of the offense.” Bridges v. State, 454 S.W.3d 87, 88 (Tex. App.—Amarillo

2014, pet. ref’d) (citing Uribe v. State, 573 S.W.2d 819, 821 (Tex. Crim. App. [Panel Op.] 1978));

see Williams v. State, 127 S.W.3d 442, 445 (Tex. App.—Dallas 2004, pet. ref’d). Because the

State was not required to prove that White’s knowing delivery of a controlled substance occurred

while he was knowingly within a drug-free zone, we overrule White’s final point of error.




                                                  6
      We affirm the trial court’s judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:      November 20, 2015
Date Decided:        November 23, 2015

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