494 S.W.3d 156
Tex. App.2015Background
- Appellant Kevin Royce Peek was convicted by jury of possessing 4–200 grams of methamphetamine with intent to deliver in a drug‑free zone; punishment assessed as life after jury found two enhancement allegations true.
- Officers stopped Appellant’s car for expired registration; three occupants exited; officers found ~16 grams of methamphetamine in three small bags, 29 empty Ziploc bags in a shoe, a syringe, marijuana, and paraphernalia.
- Appellant admitted he drove Kirby and Gonzales to obtain meth and acknowledged that meth was in the vehicle; Kirby testified the drugs belonged to him and that Appellant did not know.
- Detective Dibrell testified the stop occurred directly across from Early High School and was less than 1,000 feet from school property; jury answered a special issue finding the offense occurred within 1,000 feet of the school.
- On appeal Peek raised five issues: (1–2) jury charge definitions of "intentionally/with intent" in abstract and application (law of parties); (3) ineffective assistance for not requesting alternative intent definitions; (4) exclusion of impeachment evidence about Detective Dibrell’s alleged demotion/tampering rumors; (5) insufficiency of evidence that the stop was within 1,000 feet of school.
Issues
| Issue | Peek's Argument | State's Argument | Held |
|---|---|---|---|
| 1. Abstract jury charge definitions of "intentionally/with intent" | Charge incorrectly defined intent only as nature of conduct rather than as result of conduct | Offense (possession with intent to deliver) is nature‑of‑conduct; definition was proper | Affirmed — abstract definitions were proper for this offense |
| 2. Application paragraph / law of parties use of intent definition | Charge failed to apply result‑of‑conduct definition to parties instruction, allowing conviction for merely driving | Law of parties requires proof defendant acted with intent to promote/assist the offense; charge tracked statutory language | Affirmed — charge properly required intent to promote/assist; no conviction based solely on driving |
| 3. Ineffective assistance for not requesting result‑oriented intent instruction | Counsel ineffective for failing to request result‑of‑conduct definitions and application to parties | Requests would have been futile because defendant was not entitled to those instructions | Affirmed — counsel not ineffective under Strickland |
| 4. Exclusion of impeachment evidence about Detective Dibrell | Trial court erred in excluding testimony about Dibrell’s demotion/rumored tampering as bias impeachment | Proffered evidence was speculative rumor; no specific allegations or proof tying Dibrell to tampering or demotion | Affirmed — exclusion not an abuse of discretion; evidence was speculative |
| 5. Sufficiency of evidence that offense occurred within 1,000 feet of school | Evidence insufficient to prove location within statutory drug‑free zone | Detective testified stop was directly across from high school and definitely less than 1,000 feet; Kirby corroborated | Affirmed — a rational juror could find offense occurred within 1,000 feet |
Key Cases Cited
- McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989) (distinguishing nature‑of‑conduct and result‑of‑conduct offenses and mental‑state application)
- Murray v. State, 804 S.W.2d 279 (Tex. App.—Fort Worth 1991) (when offense is both nature and result oriented, submit complete statutory definitions)
- Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) (limit statutory culpable‑state definitions to those required by offense)
- Beier v. State, 687 S.W.2d 2 (Tex. Crim. App. 1985) (law of parties requires proof of intent to promote or assist)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective assistance standard)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency review standard)