Dematric D. YOUNG, Appellant, v. The STATE of Texas.
Nos. 0314-99, 0319-99.
Court of Criminal Appeals of Texas.
March 22, 2000.
748 S.W.2d 748
R. Deniece Jones, Lubbock, for appellant in No. 0319-99.
William C. Sowder, Dist. Atty., Wade Jackson, Asst. Dist. Atty., Matthew Paul, State‘s Atty., Austin, for State.
OPINION
KELLER, J., delivered the opinion of the Court in which McCORMICK, P.J., and HOLLAND, WOMACK, and KEASLER, J.J., joined.
Juries in two separate trials found appellant guilty of possession with intent to deliver and delivery of cocaine. Each of the juries further found that appellant had committed the offenses in a drug-free zone, to wit, in, on, or within 1,000 feet of
Summary of Facts
Paragraph one of the indictments charged appellant with possession with intent to deliver and delivery of between one and four grams of cocaine, both of which are violations of the
The State subsequently presented evidence on the drug-free zone issue during the guilt-innocence phase of trial. In its instructions to the jury, the court charged that a drug-free zone finding was warranted if the jury found that the offenses had occurred “in, on, or within 1,000 feet of premises owned, rented or leased by a school.” After the jury returned guilty verdicts and an affirmative finding on the drug-free zone issue, the court further charged them that the punishment thus authorized was between seven and twenty years confinement and a fine not to exceed $20,000. The jury then assessed punishment at eighteen years confinement on the possession with intent to deliver charge and twenty years confinement plus a $10,000 fine on the delivery charge.
On appeal, the Court of Appeals found that the State had presented insufficient evidence to prove that the premises in question were owned, rented, or leased by a school. Because the issue related to enhancement only, the Court of Appeals affirmed the judgment of conviction and remanded for a new trial on punishment.
In its sole ground for review, the State contends that the Court of Appeals erred in finding the evidence legally insufficient to support the jury‘s affirmative answer to the enhancement issue. A preliminary question is whether, under the guidelines set forth in Malik1 for measuring sufficiency of the evidence, the Court of Appeals applied the appropriate hypothetically correct jury charge for the case. We find that it did not. Applying the proper hypothetically correct charge, we find the evidence legally sufficient and accordingly reverse.
Discussion
We held in Malik v. State that “sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case.” While this formula, as written, applies only to the elements of the offense necessary to sustain a conviction, Malik‘s principles apply equally to the affirmative findings necessary to sustain the imposition of an enhanced punishment. Thus the sufficiency of the evidence in this context should be measured by the elements of the hypothetically correct jury charge for the enhancement, as defined by statute.
The statute which defines the hypothetically correct jury charge for ap
We do not, however, decide the case on this ground because our analysis of the legislative history behind
Prior to May of 1995,
(b) The minimum term of confinement or imprisonment for an offense and the maximum fine for an offense under
Section 481.112 ,481.113 ,481.114 ,481.119 , or481.120 are doubled if it is shown on the trial of the offense that the offense was committed:
- in, on, or within 1,000 feet of premises owned, rented, or leased by a school or an institution of higher learning or a playground; or
- in, on, or within 300 feet of the premises of a public or private youth center, public swimming pool, or video arcade facility.
Being the sole substantive provision, subsection (b) was the general rule for enhancement of all drug-related offenses occurring in the specified drug-free zones.
Had appellant‘s offenses occurred at the time of this enactment, subsection (b)(1) would have been applicable. The offenses were alleged to have occurred within 1,000 feet of Cavazos Junior High School. As discussed later, Cavazos Junior High School fits within the definition of “school” found in subsection (a)(5). In 1995, however,
Effective May 30, 1995, the Legislature deleted the phrase “a school or” from subsection (b)(1). At the same time, new subsections (c) through (h) were added. See
(c) The minimum term of confinement or imprisonment for an offense otherwise punishable under
Section 481.112(c) . . . is increased by five years and the maximum fine for the offense is doubled if it is shown on the trial of the offense that the offense was committed:
- in, on, or within 1,000 feet of premises of a school; or
- on a school bus.
Subsections (d), (e), and (f) are similarly confined to those cases where the underlying offense is committed near school property or on a school bus.
The new subsections also abandon the approach of doubling the minimum term of confinement, the method still contained in subsection (b), in favor of other methods of enhancement. Subsection (c) increases the minimum term of confinement by a flat five years, while the remaining new sections increase the level of the offense to the next higher grade. None of the new subsections retain the doubling approach of subsection (b) for terms of confinement.
The second amendment became effective September 1, 1995. See
(b) An offense otherwise punishable as a state jail felony under
Section 481.112 ,481.113 ,481.114 , or481.120 is punishable as a felony of the third degree, and an offense otherwise punishable as a felony of the second degree under any of those sections is punishable as a felony of the first degree, if it is shown at the punishment phase of the trial of the offense that the offense was committed:
- in, on, or within 1,000 feet of premises owned, rented, or leased by a school or an institution of higher learning or a playground; or
- in, on, or within 300 feet of the premises of a public or private youth center, public swimming pool, or video arcade facility.
In addition to this change in the enhancement scheme, the amendment also included in subsection (b)(1) the phrase “a school or” which had been deleted by the same Legislature only three months earlier. The addition does not appear in italicized type—the usual manner of indicating new material in the text of amended provisions. See 8 West, Preface to Vernon‘s Texas Session Law Service, at V (1995). Nor is there any reference in this amendment to the prior deletion.
If amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each.
By removing “a school or” from subsection (b) while retaining the language making it applicable to institutions of higher learning, playgrounds, youth centers, public swimming pools, and video arcade facilities, the May 30th amendments retain the enhancement scheme of subsection (b) as the general rule of enhancement for most types of drug-free zones. As exceptions to this general rule, subsections (c) through (f) provide a different scheme of specific enhancements for offenses committed in proximity to a school or school property. It therefore appears that the Legislature
With this in mind, we cannot conclude that the Legislature intended to interject the treatment of schools back into subsection (b). Such an interpretation would render the new subsections (c) through (f) superfluous, would disrupt the Legislature‘s intent of treating schools separately, and would effectively enable the State to opt arbitrarily between two methods of enhancement, one of which raises the minimum term of confinement while the other actually increases the grade of the offense. Furthermore, the fact that the added phrase does not appear in italicized type indicates an absence of intent to effectuate the change. Rather, it suggests the language was mistakenly included as the result of a drafting oversight.
That several legal sources coincidentally reflect that subsection (b) does not apply to schools is indeed a mystery. Vernon‘s Texas Codes Annotated omits mention of that portion of the September 1995 amendment in which the phrase “a school or” reappears in the text of subsection (b). Vernon‘s failure to reproduce this language conveniently yields a result in harmony with our decision today which holds that the language was essentially a mistake anyway. Similarly, the Texas District & County Attorneys Association, while reproducing the language faithfully in its 1997 edition of Criminal Laws of Texas, makes in the 1999/2000 edition the same omission as Vernon, with the same result.
Because we find that subsection (b) does not apply to schools, the hypothetically correct jury charge for this case is the only other subsection that covers
Sufficiency of the Evidence
When reviewing the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to see whether any rational fact-finder could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). Appellant does not challenge the sufficiency of the evidence to support the crimes themselves. Rather, his challenge is to the legal sufficiency of the evidence to support the punishment enhancement.
Applying subsection (c) as the appropriate hypothetically correct jury charge against which sufficiency should have been measured, we must determine whether a rational juror could have found beyond a reasonable doubt that the offenses were committed: (1) in, on, or within 1,000 feet (2) of premises of a school, further described as Cavazos Junior High School.
“School” as defined in
Next, the State adduced ample evidence that the offenses occurred within 1,000 feet of the school. Officer Rocap produced maps from the Lubbock City Planning and Engineering Department showing the area public schools, with the boundaries of their respective drug-free zones shaded in gray around each. The maps showed the location of the offenses, the Sunset Motel, to be within the shaded area surrounding Cavazos Junior High School. In a prosecution under Section 481.134, a map produced or reproduced by a municipal engineer for the purpose of showing the location and boundaries of drug-free zones is admissible in evidence and is prima facie evidence of the location or boundaries of those areas if the governing body of the municipality or county adopts a resolution or ordinance approving the map as an official finding and record of the location or boundaries of those areas.
In addition, Officer Rocap testified as to his personal knowledge that the Sunset Motel was within 1,000 feet of Cavazos Junior High School, having measured the distance with a traffic wheel. He measured the distance at 335 feet, five inches. The officer also made a videotape of the distance between the motel and the school, which was shown to the jury without objection. Based on all of this, a rational juror could have found that the offenses occurred within 1,000 feet of the school. We therefore hold that there was legally sufficient evidence to sustain the enhancements under subsection (c).
We reverse and remand these causes to the Court of Appeals for the Court of Appeals to address appellant‘s factual sufficiency claim.
JOHNSON, J. filed a concurring opinion in which MEYERS, J., joined. MEYERS, and MANSFIELD, J.J., concurred in the result.
PRICE, J., did not participate.
JOHNSON, J., delivered a concurring opinion in which MEYERS, J. joins.
I concur in the judgment of the majority. I write separately to address the seeming expansion of Malik1 to punishment. Ante, op. at 750 (“While [Malik], as written, applies only to the elements of the offense necessary to sustain a conviction, Malik‘s principles apply equally to the affirmative findings necessary to sustain the imposition of an enhanced punishment after conviction.“).
In Malik, we held:
[S]ufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment,
does not unnecessarily restrict the State‘s theories of liability, and adequately describes the particular offense for which the defendant was tried [Footnote omitted.] This standard can uniformly be applied to all trials, whether to the bench or to the jury, whether or not the indictment is facially complete, and regardless of the specific wording of the jury charge actually given. Moreover, the standard we formulate today ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State‘s proof of the crime rather than a mere error in the jury charge submitted. Malik, 953 S.W.2d at 240. (Emphases added.)
Malik specifically employs the hypothetically-correct jury charge at the guilt/innocence phase, but is silent as to application in the punishment phase. Indeed, the rationale of Malik is based on the state‘s burden of proof as to the crime, and is ill-suited to the punishment phase, where there is no similar burden on the state as to the appropriate sentence.
Although the finding that the offense was committed in a drug-free zone affects punishment, it is not part of the punishment phase of trial, but describes an element of the particular offense for which appellant was tried, thus is properly included in the guilt/innocence phase. The language of
When a statute is clear and unambiguous, we should apply the plain meaning of its words, unless the plain meaning leads to absurd results. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). Prior to 1995,
The general rule for enhancement for most types of drug-free zones is found in
Because a finding that the offense was committed in a drug-free zone surrounding a school is a proper consideration at the guilt/innocence phase, Malik need not be expanded to punishment, as the majority appears to do. Therefore, I concur only in the judgment of the majority.