Hall v. State

Full title: RANDY EUGENE HALL, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 5, 2009

No. 05-07-01128-CR (Tex. App. Mar. 5, 2009)

Opinion

No. 05-07-01128-CR

Opinion Filed March 5, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.

On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F06-73161-I.

Before Justices RICHTER, LANG, and MURPHY. Opinion By Justice LANG.

OPINION

DOUGLAS S. LANG, Justice.

Randy Eugene Hall appeals the trial court's judgment convicting him of unlawful possession with intent to deliver cocaine in an amount of four grams or more, but less than two hundred grams, enhanced by two prior convictions. The jury found Hall guilty and that the offense was committed within 1,000 feet of a school. Hall pleaded true to the enhancements, and the trial court found the enhancements true, sentenced him as a habitual offender, and assessed his punishment at forty years of imprisonment. Hall raises four issues on appeal arguing: (1) the trial court erred when it denied his motion to suppress; (2) the trial court erred when it provided the jury with supplemental instructions during deliberation; (3) the evidence is legally insufficient to prove he was within 1,000 feet of the school alleged; and (4) the evidence is factually insufficient to prove he was within 1,000 feet of the school alleged. We conclude Hall has failed to preserve for appellate review his issue claiming the trial court erred when it denied his motion to suppress. Also, we conclude Hall procedurally defaulted as to any claim the trial court erred when it answered the jury's question. Finally, we conclude the evidence is legally and factually sufficient to prove Hall was within 1,000 feet of the school alleged. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ricky Phillips works at Pacesetter Personnel Services, a day laborer service that assists the homeless and felons to get jobs. Pacesetter is located at 1818 South Ervay Street, Dallas, Texas, and shares the building with a housing facility known as the "Bunk House." The Bunk House is located near an alternative high school. On November 29, 2006, Phillips called 9-1-1 to report that a man wearing a blue jean jacket, khaki pants, and a white shirt was selling drugs on the property of Pacesetters and the Bunk House. When the two responding police officers arrived, an individual directed them to the back of the Bunk House where they saw Hall, who matched the description of the man reportedly selling drugs at that location. The police asked the man his name, but Hall became irate and began waving his arms around, so the police detained him with handcuffs. While detaining Hall, the officer observed a flask-shaped bottle in his back pants pocket, the smell of alcohol coming from his "body and or breath," and that his speech was not clear. As a result, Hall was arrested for public intoxication. After the arrest, when the police searched Hall, they found two baggies of crack cocaine in Hall's pants and jacket pockets. Hall was indicted for unlawful possession with intent to deliver cocaine in an amount of four grams or more, but less than two hundred grams, enhanced by two prior convictions. The State filed a special plea, which sought a finding that the offense occurred within 1,000 feet of a drug-free zone. During the jury's deliberations, the jury sent a question to the trial court regarding the special plea. The trial court's charge stated a "school" was defined as an elementary school and the jury inquired if the law was also applicable to alternative high schools. The trial court initially answered that a "school" includes both an elementary and secondary school. Then, the trial court sent the jury a supplemental answer instructing that a "school" means a private or public elementary or secondary school and an alternative high school is a secondary school. The jury found Hall guilty and in the affirmative on the special plea. Hall pleaded true to the enhancements. The trial court found the enhancements true, sentenced Hall as a habitual offender, and assessed his punishment at forty years of imprisonment.

II. MOTION TO SUPPRESS

In issue one, Hall argues the trial court erred when it denied his motion to suppress. He claims the cocaine discovered during the search incident to his arrest was unlawfully obtained and should have been suppressed at trial because the police had neither reasonable suspicion to detain or search him nor probable cause to arrest him for public intoxication. The State responds the police had probable cause to arrest Hall for public intoxication and the search was a valid search incident to Hall's arrest. After a pretrial hearing, the trial court denied Hall's motion to suppress. During the trial, when the State offered to admit the cocaine into evidence, Hall's counsel responded "No objection." The trial court admitted the evidence. When a pretrial motion to suppress evidence is overruled, a defendant need not object at trial in order to preserve the error on appeal. See Klapesky v. State, 256 S.W.3d 442, 449 (Tex.App.-Austin 2008, pet. ref'd). However, when the evidence is offered during trial and defense counsel affirmatively represents the defendant has "no objection" to the evidence, any error in the admission of the evidence is waived, even if the error had been previously preserved by a motion to suppress and an adverse ruling. See, e.g., Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App. 1992); Dean v. State, 749 S.W.2d 80, 82-83 (Tex.Crim.App. 1988). Such a defendant cannot claim on appeal the evidence was illegally obtained under the United States or Texas Constitution or under article 38.23 of the Texas Code of Criminal Procedure. See Holmes v. State, 248 S.W.3d 194, 200 (Tex.Crim.App. 2008). Hall affirmatively stated he had "no objection" to the introduction of the cocaine obtained as a result of his arrest for public intoxication and the police's subsequent search of his person. We conclude Hall did not preserve his complaint that the cocaine was unlawfully obtained and should have been suppressed at trial. Also, Hall argues he reasserted his motion to suppress at trial. However, he did not reassert his motion to suppress until after the last witness testified and both the State and the defense counsel closed, but before closing argument. Specifically, the following occurred:

DEFENSE COUNSEL: Your Honor, I believe I requested a Motion to Suppress based on the State's failure to prove beyond a reasonable doubt that the arrest was unlawful and should be suppressed.

COURT: Okay.

DEFENSE COUNSEL: And has the Court reached a conclusion regarding that?

COURT: Motion denied.

A defendant may challenge the admissibility of evidence in either of two ways: (1) he may object to the admission of the evidence at the time it is offered at trial and request a hearing outside the presence of the jury; or (2) he may file a pretrial motion to suppress the evidence and have it heard and ruled on before trial. Holmes, 248 S.W.3d at 199. To preserve a complaint for appeal, the record must show the complaint was made to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). We conclude Hall's reassertion of his motion to suppress after both the State and defense counsel closed was not sufficiently timely to preserve the issue, which the trial court denied prior to trial and Hall waived by affirmatively stating he had "no objection" to the introduction of the cocaine. Cf. Bouyer v. State, 264 S.W.3d 265, 268-69 (Tex.App.-San Antonio 2008, no pet.) (distinguishing Holmes and declining to dispose of case based on waiver despite defense counsel's affirmative statement of "no objection" to evidence because defense counsel raised suppression issue before introduction of evidence, trial court advised it would consider matter at later time, and trial court held suppression hearing after introduction of evidence, despite defense counsel's affirmative statement and State's waiver objection).

Issue one was not preserved for review on appeal.

III. JURY INSTRUCTION

In issue two, Hall argues the trial court erred when it provided the jury with supplemental instructions during deliberation. He claims the trial court's jury charge omitted the portion of the statute that defines a school to include secondary schools. Hall acknowledges the trial court was able to give the jury an additional instruction that corrected its mistake by providing the correct statutory definition. However, he claims the trial court erred when it sent a second, subsequent instruction to the jury stating an alternative high school is a secondary school. The State responds that Hall failed to preserve this issue for appellate review because nothing in the record shows he objected to the trial court's answers to the jury's question. The clerk's record shows the trial court's jury charge instructed the jury that "`school' means a private or public elementary school or day care center as defined in Section 481.134, Texas Health Safety Code." During deliberations, the jury sent the trial court the following question:

Special Issue #1 Clarification-"school" = as defined in the law private or public elementary school

Q: Is it only elementary, or is the law applicable to any school, specifically an Alternative High School?

(Emphasis in orig.). Below the jury's question appears the following answer from the trial court: "`School' means a private or public secondary or elementary school." On a second sheet of paper, signed the same day, the trial court sent the jury the following additional answer to its question: "You are to accept the following definition of school in place of any other: `School' means a private or public elementary or secondary school. An Alternative High School is a secondary school." The reporter's record shows only that the jury was sent to deliberate and returned approximately one hour later with a guilty verdict and an affirmative finding that the offense was committed within 1,000 feet of a drug-free zone. Article 36.27 of the Texas Code of Criminal Procedure requires a trial court to notify the defendant, if possible, of a jury's questions and of the trial court's proposed answers to those questions, and provides the defendant with an opportunity to object to the trial court's answers. See Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 2006); Word v. State, 206 S.W.3d 646, 650 (Tex.Crim.App. 2006). However, when a record is silent, a presumption exists that the trial court complied with the requirements of article 36.27. See Word, 206 S.W.3d at 651. It is usually the appealing party's burden to present a record showing properly preserved, reversible error. See id. at 651-52. When a record does not show the trial court failed to notify the defendant of the jury's questions or that the defendant objected to the trial court's answers to the jury's questions, the defendant has procedurally defaulted any claimed violation of article 36.27 and any objection to the trial court's answers to the jury's questions. See id. at 652. The record is silent on the procedures that were followed when the trial court responded to the jury's question. See id. at 648. The reporter's record contains no reference to the trial court responding to the jury's questions. See id. There is nothing in the record showing Hall objected to the trial court's answers to the jury's question. See id. The record is also silent on when Hall became aware of these communications between the trial court and the jury. See id. Accordingly, we conclude Hall has procedurally defaulted any claim that the trial court's answers to the jury's question was improper because nothing in the record shows he objected to those answers. Issue two is decided against Hall.

IV. LEGAL AND FACTUAL SUFFICIENCY

In issues three and four, Hall argues the evidence is legally and factually insufficient to prove he was within 1,000 feet of a school. He claims there was no evidence to show the school was the Otto M. Fridia, Jr., Alternative High School as stated in the State's revised notice of a special plea, which sought a finding that the offense was committed within 1,000 feet of a drug-free zone, and the trial court's charge to the jury. The State responds the fact that the school was not specifically referred to as the Otto M. Fridia, Jr., Alternative High School is irrelevant because testimony that a location appears to be operating as a school or contains the word "school" in its name is sufficient. Also, the State argues Officer Scott Bazan's testimony, which was based on personal knowledge, and the geographical information (GIS) technician's testimony were sufficient to prove Hall committed the offense within 1,000 feet of the Otto M. Fridia, Jr., Alternative High School.

A. Standard of Review

Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied 128 S.Ct. 87 (2007). The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. See Rollerson, 227 S.W.3d at 724; Marshall, 210 S.W.3d at 625.

1. Legal Sufficiency

The legal sufficiency of the evidence will be viewed 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, 318-19 (1979); Rollerson, 227 S.W.3d at 724; Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall, 210 S.W.3d at 625; King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). All evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Marshall, 210 S.W.3d at 625; Chaddock v. State, 203 S.W.3d 916, 920 (Tex.Crim.App. 2006); Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).

2. Factual Sufficiency

In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied 128 S.Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007); Marshall, 210 S.W.3d at 625. Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417.

B. Applicable Law

Section 481.112 of the Texas Controlled Substances Act provides that a person commits an offense if the person knowingly or intentionally possesses with the intent to deliver a controlled substance listed in Penalty Group 1. See Tex. Health Safety Code Ann. § 481.112(a) (Vernon 2003). Cocaine is classified as a Penalty Group 1 substance for the purpose of establishing criminal penalties for violations of the Texas Controlled Substances Act. See Tex. Health Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2008). Possession with the intent to deliver is punishable as a first-degree felony if the amount of the controlled substance is four grams or more, but less than two hundred grams. Tex. Health Safety Code Ann. § 481.112(d). The punishment for certain offenses is enhanced pursuant to section 481.134 of the Texas Health and Safety Code, if it is proved the offense occurred in a drug-free zone. See Young, 14 S.W.3d at 750. If it is shown at trial that an offense punishable under section 481.112(d) was committed within 1,000 feet of a school's premises, section 481.134(c)(1) increases the minimum term of confinement by five years and doubles the maximum fine for the offense. See Tex. Health Safety Code Ann. § 481.134(c)(1) (Vernon Supp. 2008). Section 481.134(c) does not create a separate offense. Williams v. State, 127 S.W.3d 442, 445 (Tex.App.-Dallas 2004, pet. ref'd). Rather, its only effect is to raise the penalty when an enumerated offense is committed in a designated place. See id.

C. Application of the Law to the Facts

Viewing the evidence in the light most favorable to the verdict, we conclude there was evidence that the offense was committed within 1,000 feet of the Otto M. Fridia, Jr., Alternative High School located at 1403 Corinth, Dallas, Texas. In its revised notice of a special plea, which sought a finding that the offense was committed in a drug-free zone, the State alleged the offense was committed within 1,000 feet of the "Otto M. Fridia[,] Jr., Alternative High School[,] 1403 Corinth[,] Dallas, Texas." The trial court's jury charge asked the jury whether they found beyond a reasonable doubt the offense was committed within 1,000 feet of the "Otto M. Fridia[,] Jr., Alternative High School, 1403 Corinth, Dallas, Texas." Officer Bazan testified he has been patrolling the area where Hall was arrested for eight years and at the 1400 block of Corinth there is an alternative high school. He stated the school building says "Lamar High School," but the name of the school had recently been changed. The GIS technician testified he created a map on a computer system by taking aerial photos and overlaying them with the property lines. Then, he measured a 1,000 foot buffer line from the "Lamar School," creating a circle around the school. He stated the Bunk House was enclosed within that 1,000 foot buffer line. Viewing the evidence in a neutral light, we conclude there is sufficient evidence from which a fact-finder could rationally conclude beyond a reasonable doubt that the offense was committed within 1,000 feet of the Otto M. Fridia, Jr., Alternative High School located at 1403 Corinth, Dallas, Texas. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to prove Hall committed the offense within 1,000 feet of the Otto M. Fridia, Jr., Alternative High School located at 1403 Corinth, Dallas, Texas. Issues three and four are decided against Hall.

V. CONCLUSION

Hall has failed to preserve for appellate review his issue claiming the trial court erred when it denied his motion to suppress. Also, Hall procedurally defaulted any claim the trial court erred when it answered the jury's question. Finally, the evidence is legally and factually sufficient to prove Hall was within 1,000 feet of the school alleged. The trial court's judgment is affirmed.