McFail v. State

Full title: ERIC McFAIL, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Dec 8, 2004

Nos. 10-03-00220-CR, 10-03-00221-CR, 10-03-00222-CR (Tex. App. Dec. 8, 2004)

Opinion

Nos. 10-03-00220-CR, 10-03-00221-CR, 10-03-00222-CR

Opinion delivered and filed December 8, 2004. DO NOT PUBLISH.

Appeal from the Criminal District Court 4, Dallas County, Texas, Trial Court Nos. F02-55987, F02-55988 and F02-55989. Affirmed.

Adam L. Seidel, Attorney at Law, Dallas, TX, for Appellant/Relator. Bill Hill, Dallas County District Attorney, Dallas, TX, for Appellee/Respondent.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

BILL VANCE, Justice.

Eric Lee McFail was convicted by a jury of possession with intent to deliver cocaine, possession of marihuana, and unlawful possession of a firearm by a felon. With respect to the offense of possession with intent to deliver, the jury answered two special issues in the affirmative: (1) McFail committed the offense within 1,000 feet of a school and (2) McFail used or exhibited a deadly weapon during the commission of the offense. The jury assessed punishment at 35 years' confinement for possession with intent to deliver, 2 years' confinement for possession of marihuana, and 10 years' confinement for unlawful possession of a firearm. McFail brings three issues on appeal: (1) the prosecution's improper argument constitutes reversible error; (2) the "drug-free zone" provision of the Texas Controlled Substances Act is unconstitutional on its face because it does not require any knowledge or intent on the part of the accused; and (3) the provision is unconstitutional because the proscribed distance is arbitrary and capricious. We will overrule the issues and affirm the judgment.

BACKGROUND

Dallas police officers received complaints from citizens that a drug house was being operated at 2811 Wilhurt, which was within 1,000 feet of W.W. Bushman Elementary School. Police officers set up surveillance across the street from the house and observed individuals enter the house and then exit in less than a minute. After observing the house for about ten minutes, Officers Elliott and Bricker approached Brandon King, who had exited the house. Officer Elliott noticed McFail on the front porch of the house and directed the other officers to detain him. Officers Castro, Peterson, and McLemore approached the house. Peterson testified that he saw McFail had a gun, warned the other officers, and went to the backyard to cover the back of the house. McFail turned and went into the house. McLemore testified that he saw, through the screen door, that McFail was carrying baggies of marihuana and crack cocaine in his left hand. McLemore entered the house and saw a gun in McFail's right hand. He pursued McFail into a back bedroom where McFail dropped the gun and the drugs, jumped on the bed face down, and put his hands behind his back. When Castro entered the bedroom moments later, he observed a second gun on the floor. Police found no one else in the house and arrested McFail. A chemist performed an analysis of the drug evidence and determined that the total amount was 6.2 ounces of marihuana and 53.4 grams (including adulterants or dilutants) of cocaine. McFail's brother testified that he drove McFail to the location earlier in the evening to purchase marihuana. He testified that McFail had no other connection to the house and had nothing to do with selling drugs from the location. Brandon King testified he had gone to the house to buy marihuana, that he could not identify McFail, and did not recall seeing McFail inside the house. King testified that the drug house was run by two other individuals, one of whom was named Hector.

Prosecutorial Misconduct

McFail contends that the State committed prosecutorial misconduct in its closing argument. During closing arguments, McFail's counsel asserted that the defense was prevented from filing a motion to suppress the evidence in the house because McFail did not live there. On rebuttal, the prosecutor picked up the court's jacket on the cocaine case and addressed the jury:

Ladies and gentlemen, let me respond first to something Mr. Harris (defense counsel) said. He said that they couldn't file and they didn't file a motion to suppress. Let me respond to that. October 24, 2002, a motion to suppress was filed by this defendant in this case contending that he was an overnight guest at 2811 Wilhurt.

Defense counsel asked to approach the bench, and a discussion followed off the record. Defense counsel presumably objected to the prosecution's statement because the next statement that appears in the record is the trial court's: "I'll sustain the objection." Defense counsel requested a mistrial, which the judge denied. For the purpose of determining whether the trial court erred in denying the motion for mistrial, we will assume without deciding that the jury argument was improper. The State argues that McFail did not preserve his complaint for appeal because he did not request that the court instruct the jury to disregard the improper argument and obtain an adverse ruling from the trial court on the request. We agree that McFail may not now complain about the trial court's failure to so instruct the jury. However, McFail did pursue his objection to an adverse ruling by requesting a mistrial and obtaining an adverse ruling on that request. Thus his complaint is preserved for appeal. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996) (Before a defendant may complain on appeal about improper jury argument, he must show he objected and pursued his objection to an adverse ruling). However, in order to show that the trial court erred in denying the motion for a mistrial, McFail must show that an instruction to disregard would have been inadequate to cure the prejudicial effect of the allegedly improper argument. See Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991) (Reversible error results from improper prosecutorial argument only when the argument is extreme, manifestly improper, injects new and harmful facts into the case or violates a mandatory statutory provision and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by judicial instruction to disregard argument.) Following an objectionable argument, an instruction by the court to disregard the comment will normally obviate the error, unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonishment. Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App. 1993). We find that the State's argument was not so prejudicial that its effect could not have been cured by a judicial instruction. We overrule the issue

Constitutionality of "Drug-Free Zone" Provision

McFail's second and third issues contend that section 481.134(c) of the Texas Health Safety Code is unconstitutional on its face because it does not require proof of a mental state and it is arbitrary and capricious. Section 481.134(c) provides that if it is shown that specified drug offenses are committed in, on, or within 1,000 feet of the premises of a school or on a school bus, the minimum term of confinement or imprisonment is increased by five years and the maximum fine for the offense is doubled. TEX. HEALTH SAFETY CODE ANN. § 481.134(c) (Vernon Supp. 2004-05). McFail argues that the provision is unconstitutional because it does not require that an accused have knowledge or intent to commit an offense within a drug-free zone. Section 481.134(c) does not create a separate offense; its only effect is to raise the penalty when an enumerated offense is committed in a designated place. Williams v. State, 127 S.W.3d 442, 445 (Tex.App.-Dallas 2004, pet ref'd). The enumerated offense in this case was knowingly possessing cocaine in the amount of four grams or more but less than two hundred grams with the intent to deliver. See TEX. HEALTH SAFETY CODE ANN. § 481.112(a), (d) (Vernon 2003). Section 481.134(c) is not unconstitutional for failing to require additional knowledge or intent. See Williams, 127 S.W.3d at 445. We overrule this issue. McFail also argues that because there is no rational link between the statutorily proscribed area and the harm to be prevented, section 481.134(c) is arbitrary and capricious and therefore unconstitutional. Any drug-related activity in the vicinity of a school increases the likelihood that drugs would become accessible to the children who attend the school. United States v. Crew, 916 F.2d 980, 983 (5th Cir. 1990) (upholding federal drug-free school statute, 21 U.S.C. § 860); United States v. Jones, 779 F.2d 121, 123 (2nd Cir. 1985) (drug sale within 1,000 feet of school increased risk drugs would become accessible to school children). The 1,000-foot drug-free zone imposed by section 481.134(c) is not arbitrary or capricious. See Williams, 127 S.W.3d at 445. We overrule this issue.

CONCLUSION

Having overruled the issues, we affirm the judgment.