Opinion
Nos. 05-04-01053-CR, 05-04-01054-CR
Opinion issued August 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F03-72870-Mk; F03-54152-PK. Affirmed as reformed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
OPINION
Tarence Fletcher appeals his delivery of a controlled substance conviction in cause number 05-04-01053-CR and his possession of a controlled substance conviction in cause number 05-04-01054-CR. A jury convicted appellant, and the trial court sentenced appellant to thirty-five years' confinement in the delivery case and fifty years' confinement in the possession case. In six issues, appellant argues the evidence is legally insufficient to support a finding of true to the first enhancement paragraph, the evidence is legally and factually insufficient to prove the delivery offense was committed within 1000 feet of a school, it was error to find the delivery offense was committed in a drug-free zone, it was egregious error to charge the jury on the drug-free zone special issue, and the written judgments do not properly reflect appellant's sentences. We affirm the trial court's judgment. On June 27, 2003, Dallas police officer Bonita Morgan went with two fellow officers in a covert vehicle to investigate a complaint of drug dealing at a house in Dallas. All three officers were wearing plain clothes. Morgan knocked on the door of the house and received no response. An unknown female approached, and Morgan told her she was "just trying to get a little bit, get a little something." The female told Morgan "He's not there right now." Morgan waited with the female who started shouting, "Here come the dope man right here. We all going to get some dope." A Cadillac pulled up, and "everyone started running out of their houses and started merging on it." The people blocked the Cadillac from turning into the driveway, so it pulled up on the side of the road. The people got in line and began buying drugs from appellant, the man in the Cadillac's driver's seat. Morgan thought the scene was like "they were kids and he was the ice cream man." After Morgan "got over that little shocking moment," she got in line with everybody else. When she got to the driver's window, Morgan gave appellant her order of "four dollar amounts of crack cocaine." Appellant gave her what she recognized as crack cocaine from a plastic baggie in his lap, and she dropped her money in his lap. Morgan stayed to look at appellant for a minute and noticed a woman sitting in the passenger seat. After completing the transaction, Morgan called her fellow officers by cell phone, and they picked up Morgan and followed appellant to a house one block away. Appellant dropped off what Morgan believed to be drugs and returned to the house where Morgan had encountered him initially. Morgan got out of the car and waited for officers to come arrest appellant. While she was waiting, a man approached her and told her appellant had just dropped off some dope at a house on a nearby street. Morgan followed the man to the house appellant had just left and purchased cocaine there before returning to the house where officers finally came and arrested appellant. Appellant was charged with delivery of less than one gram of cocaine within 1000 feet of a school and possession of more than four but less than 200 grams of cocaine. A jury convicted appellant of both offenses, and these appeals followed. In his first point of error, appellant argues the evidence is legally insufficient to support a finding of true to the first enhancement paragraph in each indictment. Specifically, appellant argues the State's proof of the enhancement conviction, a "pen packet," showed the conviction was appealed but did not contain a mandate or other proof regarding the finality of that conviction. A conviction from which an appeal has been taken is not considered to be a final conviction until the conviction is affirmed by the appellate court and that court's mandate of affirmance becomes final. Jones v. State, 711 S.W.2d 634, 636 (Tex.Crim.App. 1986). Because the State's evidence showed the conviction had been appealed and was therefore not final, it became the State's burden to show the final disposition of the appeal. Id. The State asks us to take judicial notice that this Court issued the mandate in the enhancement conviction on May 7, 1998, well before the commission of the charged offense. We do take judicial notice of the mandate, as requested by the State, and find that their contention is correct. Thus, the trial court's assessment of punishment in the belief that the conviction was final was correct. If we were to remand this case to the trial court for reassessment of punishment, the State would introduce the mandate they produced with their brief in this appeal, just as the State would have at the punishment hearing if appellant had raised the issue of whether the mandate had issued. At a new punishment hearing, no facts or law would be different than what the trial court thought them to be when the court assessed punishment the first time. Therefore, remanding the case so that the mandate could be introduced before the trial court would be useless. The law does not require a useless thing to be done. Allen v. State, 552 S.W.2d 843, 846 (Tex.Crim.App. 1977). For this reason, we decline to sustain appellant's first point of error. We overrule appellant's first point of error. In his second and third points of error, appellant argues the evidence is legally and factually insufficient to show the delivery offense was committed "in, on, or within 1000 feet of any real property that is owned, rented, or leased to a school." When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). The indictment in the delivery case charged that the offense occurred "in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or School board," specifically E.D. Comstock. At trial, Anthony Smith, a geographical information system technician, testified he had worked as a surveyor and worked currently for Dallas County public works. Smith identified on a map the parcel of land containing Comstock public school and a red line on the map indicating a 1000-foot buffer zone surrounding the school parcel. On the map, the location of the offense was outlined in yellow, and Smith testified the location was inside the 1000-foot zone. Smith testified he created the red line of the 1000-foot zone using a computer program and confirmed that it was correct using a measuring tool. During Smith's testimony he repeatedly referred to the school, and appellant's counsel did not object or contradict Smith's reference to the Comstock parcel of land as a school. Testimony that a location appears to be operating as a school or contains the word "school" in its name is sufficient to support conviction. White v. State, 59 S.W.3d 368, 371 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) ("in seeking to establish drug-free zones around schools, we believe the statute focuses on reality rather than realty titles"); see Young v. State, 14 S.W.3d 748, 754 (Tex.Crim.App. 2000) (name of premises alone may be sufficient to raise presumption that it is school). Accordingly, we conclude the evidence is legally and factually sufficient to show appellant committed the delivery offense within 1000 feet of a school. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's second and third points of error. In his fourth point of error, appellant argues it was error to find the delivery offense was committed in a drug-free zone because that part of the indictment was not read to the jury or appellant. Enhancement paragraphs must be read to the jury. Tex. Code Crim. Proc. Ann. art. 36.01 (Vernon Supp. 2004-05); Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App. 1985). Because the failure to read enhancement paragraphs and a defendant's plea to the jury is statutory error, the proper harm analysis is that for reviewing non-constitutional error. Linton v. State, 15 S.W.3d 615, 620 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). When reviewing non-constitutional error, we need only determine whether the error affected the defendant's substantial rights. Id. In determining this, we must decide whether the error had a substantial or injurious effect on the jury's verdict. Id. Here, the indictment in each case was read to the jury, but the part of the indictment in the delivery case concerning the drug-free zone was not read. However, the prosecutor discussed the drug-free zone issue during voir dire and questioned the venire panel regarding whether they had a "problem with the whole idea of a drug-free school zone." The State presented Smith's testimony that the scene of the delivery offense was within 1000 feet of a school. The jury charge contained a special issue requiring the jury to find whether or not appellant committed the delivery offense within a drug-free zone. Although the trial court should have read the entire indictment to the jury, we conclude the failure to read the drug-free zone paragraph to the jury did not have a substantial or injurious effect on the jury's verdict. See id. We overrule appellant's fourth point of error. In his fifth point of error, appellant argues it was egregious error to charge the jury on the drug-free zone special issue. Specifically, appellant argues the Drug-free special issue affected the "range of punishment and degree of the offense." Appellant did not object to the inclusion of the drug-free special issue. Thus, appellant is entitled to reversal only if he shows egregious harm arising from the inclusion of the special issue. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). The trial court's charge to the jury generally should correspond to the allegations in the indictment. Jackson v. State, 633 S.W.2d 897, 899 (Tex.Crim.App. 1982). Because the charge is the instrument by which the jury convicts, the charge must contain an accurate statement of the law and must set out all the essential elements of the offense. Here, the indictment alleged the delivery offense occurred within 1000 feet of a school, the evidence supported this allegation, and the special issue charged the jury accordingly. Though the jury's affirmative finding that the delivery offense unquestionably resulted in a more severe sentence, the charge correctly corresponded to the allegations in the indictment. See id. No error has been shown. We overrule appellant's fifth point of error. In his sixth point of error, appellant complains the written judgments in each case do not accurately reflect appellant's sentences or pleas. The State concedes that appellant is correct. We sustain appellant's sixth point of error. Accordingly, the judgment in cause number 05-04-01053-CR is reformed to reflect that appellant received a sentence of thirty-five years and pled "true" to the third enhancement paragraph; the judgment in cause number 05-04-01054-CR is reformed to reflect that appellant received a sentence of fifty years and pled "true" to the third enhancement paragraph. In all other respects, the trial court's judgments are affirmed.