Peek, Kevin Royce
PD-0600-15
Tex. App.Jun 19, 2015Background
- On Nov. 9, 2011, police stopped a vehicle driven by Kevin Royce Peek; three occupants were in the car and methamphetamine (≈16 grams) plus packaging materials were found in the vehicle. Peek admitted driving others to obtain methamphetamine and acknowledged knowing drugs were inside the car.
- Peek was indicted for possession of methamphetamine (4–200g) with intent to deliver in a drug-free zone (within 1,000 feet of Early High School).
- Jury convicted Peek; punishment assessed as life in TDCJ after jury found two enhancement allegations true.
- On appeal Peek raised multiple issues: (1) jury-charge error for defining “intentionally/with intent” in terms of nature of conduct rather than result, and failing to apply a result-focused definition to the law-of-parties instruction; (2) ineffective assistance for not requesting those definitions; (3) trial court’s exclusion of impeachment evidence about Detective Dibrell; and (4) sufficiency of evidence that the offense occurred within 1,000 feet of the school.
- The Eleventh Court of Appeals affirmed: it held the offense (possession with intent to deliver) is nature-of-conduct (so the trial court’s definitions were appropriate), rejected the ineffective-assistance claim (no merit to objecting to correct charge), upheld exclusion of speculative impeachment evidence, and found evidence sufficient that the stop occurred within 1,000 feet of the school.
Issues
| Issue | Plaintiff's Argument (Peek) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Jury-charge definitions of “intentionally/with intent” | Charge should include result-oriented definition (result-of-conduct) because party-liability requires intent to promote/assist a result | Health & Safety §481.112 (possession with intent to deliver) is nature-of-conduct; statutory intent definitions limited to nature-of-conduct were proper | Court of Appeals: Affirmed — nature-of-conduct offense; no error in the charge definitions |
| Application of intent definition to law of parties | Result-oriented definition required when convicting as a party who provided essential aid | Law-of-parties paragraph tracked Penal Code §7.02; jury had to find intent to promote/assist — the abstract nature-of-conduct intent definition still required intent to promote/assist | Affirmed — jury could not convict on mere presence or mere driving; intent element properly charged |
| Ineffective assistance for failing to request result-focused instructions | Counsel should have requested result-of-conduct definitions and application to parties | Request would have been futile because the charge was legally correct; appellate claim must be grounded in error | Affirmed — no deficient performance because requested instructions were not required |
| Exclusion of impeachment evidence about detective (demotion/tampering rumors) | Excluded evidence was relevant to detective’s bias/motive to testify for the State | Proffered material was speculative rumor without a specific allegation, investigation, or corroborating witness | Affirmed — trial court did not abuse discretion in excluding speculative impeachment evidence |
| Sufficiency of evidence for drug-free zone (within 1,000 ft of school) | Officer testimony was equivocal about exact distance | Officer and witness testimony placed stop directly across from Early High School and within 1,000 feet | Affirmed — viewing evidence in light most favorable to verdict, jury could find drug-free-zone element proved |
Key Cases Cited
- Flanagan v. State, 675 S.W.2d 734 (Tex. Crim. App. 1984) (statutory attempt requires intent as to the result)
- Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013) (Penal Code §7.02(a)(2) requires intentionality at least as to result elements for party liability)
- Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009) (trial court must instruct jury on statutory definitions that affect elements)
- In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013) (party liability is an element-related determination)
- McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989) (distinguishing nature-of-conduct and result-of-conduct offenses)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-pronged ineffective-assistance standard)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency review)