William Dewayne White v. State, 06-15-00078-CR

Appellant William Dewayne White was convicted of delivering a controlled substance with a drug-free zone enhancement; State filed response brief opposing appellant's points on appeal.
Trial included an alternate juror (Ms. Shaw) who was present during trial, told she was "in recess," and later seated as a replacement after a regular juror was disqualified shortly after deliberations began.
Appellant argues (1) the alternate should have been sequestered and was effectively discharged; (2) the drug-free zone enhancement requires proof of a culpable mental state as to location; and (3) the drug-free zone statute is facially unconstitutional (vague/overbroad) and may be challenged on appeal.
State contends (1) appellant failed to preserve any sequestration complaint and no sequestration request was made; substitution complied with amended Tex. Code Crim. Proc. art. 33.011(b) and, even if error, was harmless under controlling standards; (2) under Uribe and later Texas authority the mens rea for the underlying offense suffices and no separate mens rea for location is required; (3) a facial challenge raised for the first time on appeal is untimely under Karenev and related precedent, and the enhancement statutes have been repeatedly upheld.
Procedural posture: State asks the appellate court to overrule appellant's three points of error and affirm the conviction.

Issue	Appellant's Argument	State's Argument	Held (State position advanced)
1. Sequestration/substitution of alternate juror	Alternate juror was effectively discharged when not sequestered; seating after deliberations began was error	Appellant never requested sequestration; art. 33.011(b) (post-2007) allows substitution; error not preserved and, if any, harmless because alternate met selection/sworn/heard evidence criteria and no taint	No reversible error; substitution proper and/or harmless
2. Mens rea for drug-free zone enhancement	Enhancement requires proof of a culpable mental state as to location	Enhancement is penalty-raising only; mens rea for underlying delivery (knowingly/intentionally) suffices (Uribe)	No separate mens rea required for location; enhancement valid
3. Facial challenge to drug-free zone statute (vagueness/overbreadth)	Statute void because it lacks a mens rea element and thus is unconstitutionally vague/overbroad	Facial challenges cannot be raised for first time on appeal (Karenev); numerous precedents uphold enhancement as constitutional	Challenge untimely and merits rejected; statute upheld

Uribe v. State, 573 S.W.2d 819 (Tex. Crim. App. 1978) (holding mens rea of the underlying offense suffices when a subsequent subsection simply raises punishment for commission in a designated place)
Trinidad v. State, 312 S.W.3d 23 (Tex. Crim. App. 2010) (examining presence/role of alternate juror after art. 33.011 amendment and disapproving certain practices of allowing alternates to deliberate with regular jurors)
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009) (holding defendants may not raise a facial constitutional challenge to a statute for the first time on appeal)
Sneed v. State, 209 S.W.3d 782 (Tex. App. ̶ Texarkana 2006) (discussing harmlessness and prejudice standard for juror substitution)
Fluellen v. State, 454 S.W.3d 152 (Tex. App. ̶ Texarkana 2014) (court explanation that mens rea ties to the wrongful act; drug-free zone provision operates as a punishment enhancement)
Bridges v. State, 454 S.W.3d 87 (Tex. App. ̶ Amarillo 2014) (rejecting requirement that State prove a mens rea as to location; treating drug-free-zone provision as an enhancement)
Williams v. State, 127 S.W.3d 442 (Tex. App. ̶ Dallas 2004) (holding drug-free-zone language raises penalty and does not create a separate offense)