Kevin Royce Peek v. State

Opinion filed April 16, 2015

In The

Eleventh Court of Appeals

__________

No. 11-12-00319-CR

__________

KEVIN ROYCE PEEK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR21821

OPINION

The jury convicted Kevin Royce Peek of possession of four grams or more

but less than 200 grams of methamphetamine with the intent to deliver in a drug-

free zone. Appellant pleaded true to two enhancement allegations. The jury found

both enhancement allegations to be true, and it assessed Appellant’s punishment at

confinement for life in the Institutional Division of the Texas Department of

Criminal Justice. Appellant challenges his conviction in five issues. We affirm.

Background Facts

Appellant does not challenge the sufficiency of the evidence to support his

conviction for possession of four grams or more but less than 200 grams of

methamphetamine with intent to deliver. He does challenge the sufficiency of the

evidence to establish that he committed the offense in a drug-free zone. We will

briefly summarize the evidence at trial to provide context for Appellant’s issues on

appeal.

On November 9, 2011, Detective Shawn Dibrell and Officer Stephanie Hale

of the Early Police Department were working drug interdiction in an unmarked

police vehicle. At about 3:15 p.m., they observed a vehicle that had an expired

registration. The officers followed the vehicle. Detective Dibrell activated his

lights to stop the driver of the vehicle. The officers saw three occupants in the

vehicle. Officer Dibrell observed the front-seat passenger moving from side to

side in the vehicle. Officer Dibrell believed that the passenger might be grabbing a

weapon or hiding something. Eventually, the driver pulled the vehicle to the side

of the road and stopped. Detective Dibrell called for backup. Chief David Mercer

and Officer Amanda Williams arrived at the scene.

The officers cautiously approached the vehicle and contacted the occupants.

Detective Dibrell turned on his audio recorder. Appellant was in the driver’s seat;

Appellant’s brother, James Kirby Peek, was in the front passenger’s seat; and

Hector Gonzales was in the backseat behind Kirby. Appellant reached under his

lap, removed a syringe, and dropped it to the floor. For safety reasons, the officers

had Appellant, Kirby, and Gonzales exit the vehicle, and the officers handcuffed

them. The officers searched Appellant, Kirby, and Gonzales for weapons.

Detective Dibrell found marihuana and a Q-tip in one of Appellant’s pants pockets.

Detective Dibrell testified that cotton from Q-tips is commonly used as a filter in

connection with injecting methamphetamine. Officer Williams found a bag that

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contained three small Ziploc bags full of methamphetamine and twenty-nine empty

Ziploc bags in one of Kirby’s shoes. The three bags contained about sixteen grams

of methamphetamine. Testing of the substances at the Department of Public Safety

Laboratory in Abilene confirmed that the seized substances were

methamphetamine. Officer Hale found a pipe that contained methamphetamine

residue in one of Gonzales’s shoes.

Appellant told Detective Dibrell that he felt sick and dehydrated. Detective

Dibrell said that Appellant turned “white as a ghost” and could barely stand up.

Detective Dibrell gave Appellant something to drink.

Detective Dibrell gave Miranda1 warnings to Appellant, Kirby, and

Gonzales. They all told Detective Dibrell that they wanted to talk to him.

Appellant told Detective Dibrell that he had driven Kirby and Gonzales to

Granbury so that Kirby and Gonzales could obtain methamphetamine. Appellant

told Detective Dibrell that he knew methamphetamine was inside the vehicle.

On the following day, Detective Dibrell took a recorded statement from

Appellant. During the statement, Appellant acknowledged that he took Kirby and

Gonzales to Cindy Webb’s trailer house in Granbury so that Kirby and Gonzales

could get methamphetamine from Webb. According to Appellant, he believed that

Kirby planned to get about four grams of methamphetamine from Webb. After the

group arrived at Webb’s house, Kirby left with Webb and two men to obtain

methamphetamine. Appellant and Gonzales stayed at Webb’s house. Kirby and

the others returned to Webb’s house about five hours later. Appellant said that, at

that time, he smoked methamphetamine at Webb’s house. Appellant told

Detective Dibrell that both Kirby and Gonzales obtained methamphetamine from

Webb. Appellant told Detective Dibrell that he knew Kirby had methamphetamine

inside the vehicle.

1

Miranda v. Arizona, 384 U.S. 436 (1966).

3

Detective Dibrell agreed that sixteen grams of methamphetamine is a “fairly

substantial” amount. He said that such an amount was intended for distribution as

opposed to individual use. Detective Dibrell said that sixteen grams of

methamphetamine has a value of at least $1,600. Detective Dibrell testified that

Ziploc bags, such as the twenty-nine empty bags that were found in Kirby’s shoe,

are used to package methamphetamine for distribution. Detective Dibrell said that

he had “no doubt” that the amount seized was intended for distribution.

Kirby testified that the methamphetamine belonged to him. He said that

Appellant did not know anything about the methamphetamine. Kirby testified that

he planned to distribute the bags of methamphetamine to two people.

Detective Dibrell testified about the location of the stop. He said that

Appellant stopped his vehicle “directly across” from Early High School.

Detective Dibrell indicated that the stop occurred less than 1,000 feet from school

property.

Analysis

Appellant presents five issues for review. In his first two issues, Appellant

contends that the trial court erred (1) in defining “intentionally” and “with intent”

in terms of the nature of the conduct rather than the result of the conduct in the

abstract portion of the jury charge and (2) in failing to apply a result-of-conduct

definition of “intentionally” and “with intent” to the law of parties issue in the

application portion of the jury charge. In his third issue, Appellant contends that

his trial counsel rendered ineffective assistance in failing to request that the jury

charge provide a definition of “intentionally” and “with intent” in terms of the

nature of the result only and to request that those definitions be applied to the law

of parties as set forth in the application paragraph of the charge. In his fourth

issue, Appellant contends that the trial court erred in refusing to allow him to

impeach the credibility of Detective Dibrell by eliciting testimony related to

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Detective Dibrell’s work history and to an allegation that Detective Dibrell

tampered with evidence. In his fifth issue, Appellant contends that the evidence

was insufficient to establish that he committed the offense within 1,000 feet of the

premises of a school.

A. Jury Charge Issues

The indictment alleged that, on or about November 9, 2011, Appellant “did

then and there knowingly possess, with intent to deliver, a controlled substance,

namely, Methamphetamine, in an amount of four grams or more but less than 200

grams.” The indictment further alleged that “[appellant] committed the above

offense within 1,000 feet of the premises of a school, to wit: Early High School,

115 Sudderth, Early, Texas.”

The trial court stated in the jury charge that “[o]ur law provides that a person

commits an offense if he knowingly possesses with intent to deliver a controlled

substance.” The trial court included the following definitions of “intentionally”

and “knowingly” in the charge:

A person acts intentionally, or with intent, with respect to the

nature of his conduct when it is his conscious objective or desire to

engage in a conduct.

A person acts knowingly, or with knowledge, with respect to the

nature of his conduct or to the circumstances surrounding his conduct

when he is aware of the nature of his conduct or that the

circumstances exist.

The trial court also provided instructions related to the law of parties. The trial

court stated as follows:

A person is criminally responsible as a party to an offense if the

offense is committed by his own conduct, by the conduct of another

for which he is criminally responsible, or by both.

A person is criminally responsible for an offense committed by the

conduct of another if, acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or

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attempts to aid the other person to commit the offense. Mere presence

alone will not constitute one a party to an offense.

The trial court submitted a law of parties issue in the application paragraph of the

charge.

Section 6.03 of the Penal Code provides that “[a] person acts intentionally,

or with intent, with respect to the nature of his conduct or to a result of his conduct

when it is his conscious objective or desire to engage in the conduct or cause the

result.” TEX. PENAL CODE ANN. § 6.03(a) (West 2011). Thus, with respect to the

definition of “intent,” Section 6.03(a) delineates two “conduct elements” that may

be involved in an offense: (1) the nature of the conduct and (2) the result of the

conduct. See McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). As

shown above, the trial court in this case defined “intent” in terms of the nature of

the conduct and not in terms of the result of the conduct.

Appellant argues that the trial court erred in failing to define “intentionally”

in terms of the result of the conduct in the abstract portion of the charge and in

failing to apply a result-of-conduct definition to the law of parties. We disagree.

A nature-of-conduct crime, such as gambling or assault by threat, is criminalized

because the nature of the act itself is unlawful, regardless of any result that might

occur. McQueen, 781 S.W.2d at 603; Zuliani v. State, 383 S.W.3d 289, 298 (Tex.

App.—Austin 2012, pet. ref’d). “[T]he act itself is the gravamen of the offense.”

Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011). When specific acts

are criminalized because of their very nature, a culpable mental state must apply to

committing the act itself. McQueen, 781 S.W.2d at 603. A result-of-conduct

crime, such as murder or injury to a child, is one in which unspecified conduct is

criminalized because of its result. Id.; Zuliani, 383 S.W.3d at 298. When

unspecified conduct is criminalized because of its result, a culpable mental state

must apply as to that result. McQueen, 781 S.W.2d at 603.

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An offense may be both result and nature oriented. Id.; Murray v. State, 804

S.W.2d 279, 281 (Tex. App.—Fort Worth 1991, pet. ref’d). In such cases, the trial

court should submit the complete statutory definition of “intentionally” and

“knowingly” so that the jury can consider both the result of the defendant’s

conduct and the nature of his conduct. Murray, 804 S.W.2d at 281. However, if

the offense is either only a nature-of-conduct offense or a result-of-conduct

offense, the trial court should submit statutory definitions of “intentionally” or

“knowingly” that are limited to the respective culpable mental state required.

Cook v. State, 884 S.W.2d 485, 490-91 (Tex. Crim. App. 1994); Murray, 804

S.W.2d at 281.

Section 481.112(a) of the Health and Safety Code provides that a person

commits the offense of possession of a controlled substance with intent to deliver it

if he “knowingly . . . possesses with intent to deliver a controlled substance listed

in Penalty Group 1.” TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West

2010). Methamphetamine is listed in Penalty Group 1. See id. § 481.102(6).

Section 481.112(a) criminalizes the act of possessing a controlled substance with

intent to deliver it. The gravamen of the offense is the conduct of possessing a

controlled substance with the intent to deliver it. The act or conduct of

“knowingly” possessing a controlled substance with intent to deliver it is punished,

regardless of any result. The offense focuses on the nature of the defendant’s

conduct and not any result that might occur. Because the offense focuses on the

nature of the conduct, we conclude that, as alleged in the indictment in this case,

the offense of possession of methamphetamine with intent to deliver it is a nature-

of-conduct offense. Therefore, the trial court did not err in defining “intentionally”

and “knowingly” in the jury charge as those definitions related to the offense

charged in the indictment.

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At trial, Appellant presented a defense that he believed the purpose of the

trip to Granbury was for Kirby to obtain money from Webb so that Kirby could

pay his rent. Appellant attempted to establish that he did not know Kirby and

Gonzales planned to obtain methamphetamine from Webb or actually obtained it

from her. Appellant essentially contends that, because the trial court defined

“intentionally” in terms of the nature of the conduct, the charge improperly

allowed the jury to convict him under the law of parties if the jury concluded that

he intentionally drove the vehicle, even if he was mistaken about the purpose of the

trip. We disagree with Appellant’s contention.

Section 7.01(a) of the Penal Code provides that “[a] person is criminally

responsible as a party to an offense if the offense is committed by his own conduct,

by the conduct of another for which he is criminally responsible, or by both.”

PENAL § 7.01(a). Section 7.02(a)(2) provides that “[a] person is criminally

responsible for an offense committed by the conduct of another if[,] acting with

intent to promote or assist the commission of the offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the offense.” Id.

§ 7.02(a)(2). When a party is not the primary actor, the State must prove conduct

constituting an offense plus an act by the defendant done with the intent to promote

or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985);

Schnidt v. State, 357 S.W.3d 845, 855 (Tex. App.—Eastland 2012, pet. ref’d).

Section 7.02(a) contains the culpable mental state of “intent.” Specifically, the

statute requires the State to prove that the defendant committed an act with the

“intent” to promote or assist the commission of the offense. PENAL § 7.02(a)(2).

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In this case, the trial court’s instructions on the law of parties in the abstract

section of the jury charge tracked the language of the relevant statutory provisions.

The trial court stated as follows in the application paragraph:

Now, if you find from the evidence beyond a reasonable doubt

that . . . KEVIN ROYCE PEEK . . . (either acting alone or with

JAMES KIRBY PEEK or HECTOR GONZALES, with the intent to

promote or assist the commission of the offense of Possession of a

Controlled Substance with the Intent to Deliver, if any, solicited,

encouraged, directed, aided or attempted to aid JAMES KIRBY

PEEK or HECTOR GONZALES, to commit the offense, if he did),

did then and there knowingly possess, with intent to deliver, a

controlled substance, namely, methamphetamine, in an amount of four

grams or more but less than 200 grams, then you will find the

defendant “guilty” as charged of Possession of a Controlled Substance

with Intent to Deliver, as set forth in the indictment.

The language in the application paragraph followed the appropriate statutory

language for the law of parties. See PENAL § 7.02(a)(2).

The court’s charge did not allow the jury to convict Appellant based only on

a finding that he intentionally drove the vehicle. Instead, the trial court correctly

charged the jury on the culpable mental state: Appellant must have acted with the

“intent” to promote or assist the commission of the charged offense. See id. As to

the law of parties, the charge required the State to prove that Kirby or Gonzales

engaged in conduct that constituted the charged offense and that Appellant

committed an act with the intent to promote or assist such conduct. Beier, 687

S.W.2d at 3. As stated above, the trial court instructed the jury that “[a] person

acts intentionally, or with intent, with respect to the nature of his conduct when it is

his conscious objective or desire to engage in a conduct.” As charged, the jury

could not convict Appellant under the law of parties unless it found that Appellant

acted with the conscious objective or desire to promote or assist Kirby or Gonzales

in the commission of the offense. If, as Appellant claimed, he did not know that

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Kirby and Gonzales planned to obtain or had obtained methamphetamine, he could

not have formed the requisite intent to promote or assist them in the commission of

the offense, and the jury could not have convicted him under the court’s charge.

Accordingly, we conclude that the jury charge was not erroneous. Appellant’s first

and second issues are overruled.

B. Assistance of Counsel

To determine whether Appellant’s trial counsel rendered ineffective

assistance, we must first determine whether Appellant has shown that his counsel’s

representation fell below an objective standard of reasonableness and, if so, then

determine whether there is a reasonable probability that the result of the

proceeding would have been different but for his counsel’s errors. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55–57

(Tex. Crim. App. 1986). We must indulge a strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance, and

Appellant must overcome the presumption that, under the circumstances, the

challenged action could be considered sound trial strategy. Strickland, 466 U.S. at

689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). An allegation of

ineffective assistance of counsel must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness. Thompson v.

State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

In his third issue, Appellant contends that his trial counsel rendered

ineffective assistance in failing to request that the jury charge provide a definition

of “intentionally” and “with intent” in terms of the result of conduct and in failing

to request that those definitions be applied to the law of parties as set forth in the

charge. Trial counsel is not ineffective for failing to make futile objections or

request instructions that are not required. Wood v. State, 4 S.W.3d 85, 91 (Tex.

App.—Fort Worth 1999, pet. ref’d). To prevail on an ineffective assistance claim

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for failing to make an objection, an appellant must show that the trial court would

have erred in overruling the objection. Vaughn v. State, 931 S.W.2d 564, 566

(Tex. Crim. App. 1996). Likewise, to show counsel was ineffective for failing to

request a jury instruction, an appellant must show that he was entitled to the

instruction. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000). We

have already held that the trial court’s instructions on intent and the law of parties

were not erroneous. Accordingly, Appellant cannot show that the trial court would

have erred in overruling an objection to the instructions or that he was entitled to

instructions that defined intentionally in terms of the result of conduct.

Appellant has not shown that his counsel rendered ineffective assistance.

Appellant’s third issue is overruled.

C. Exclusion of Impeachment Evidence

Appellant contends in his fourth issue that the trial court erred in excluding

evidence that Detective Dibrell left the Early Police Department after being

demoted there and that Detective Dibrell allegedly tampered with evidence in

another case. Appellant asserts that this evidence was admissible to impeach

Detective Dibrell’s credibility as a witness.

We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim.

App. 2006). We will not reverse a trial court’s ruling unless it falls outside the

zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim.

App. 2002).

The exclusion of potential impeachment evidence touches upon an accused’s

Confrontation Clause rights. See Davis v. Alaska, 415 U.S. 308, 315–16 (1974);

Pointer v. Texas, 380 U.S. 400, 403–04 (1965); Castillo v. State, 939 S.W.2d 754,

758 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d). The accused should be

allowed great latitude to show a witness’s bias, prejudice, or motives to testify

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falsely. Chambers v. State, 866 S.W.2d 9, 26–27 (Tex. Crim. App. 1993);

Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982). The

proponent of impeachment evidence bears the burden of demonstrating the

relevance of the proffered evidence to the issue of bias or prejudice. Chambers,

866 S.W.2d at 26–27. Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” TEX. R. EVID.

401. The credibility of a witness may be attacked by evidence that the witness is

slanting his testimony against or in favor of a party as a result of a personal interest

or bias in the cause. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App.

1995). The proponent of the evidence must establish a specific connection

between the witness’s testimony and the cause that discloses an actual bias or

motive. Id. Determining the limits of cross-examination to show bias is a matter

that rests within the sound discretion of the trial court. Chambers, 866 S.W.2d at

27.

Outside the presence of the jury, Appellant’s counsel informed the trial court

that “we intend as impeachment purposes to bring up some of the circumstances

regarding why Mr. Dibrell left the Early Police Department to go to work in Mills

County.” Appellant’s counsel stated, “specifically, Your Honor, the issues that we

would like to bring up would be basically that Mr. Dibrell quit on his own after

being demoted, and also we understand there has been allegations that Mr. Dibrell

tampered with evidence.” The trial court stated that, “if there is any allegation of

tampering, we are going to take that up outside of the presence of the jury.”

Appellant’s counsel stated that, “regarding evidence to that matter, Chief Mercer

will probably be our witness.”

Appellant’s counsel questioned Detective Dibrell on voir dire examination.

During that examination, Detective Dibrell testified that he left his employment

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with the Early Police Department voluntarily and that he was not fired from the

department. He said that he had conflicts with Chief Mercer with respect to the

manner in which Chief Mercer conducted the department’s operations.

Detective Dibrell made his concerns known to Chief Mercer. Detective Dibrell did

not believe that Chief Mercer ever questioned his honesty with respect to the

concerns that he raised. Appellant’s counsel tried to establish that Detective

Dibrell was demoted from his investigative duties to patrol duties. Detective

Dibrell testified that Chief Mercer threatened to demote him but never demoted

him. Detective Dibrell said that he “[went] back to patrol” because the department

was shorthanded in patrol.

Appellant’s counsel also asked Detective Dibrell questions about whether

anyone had ever alleged that he tampered with evidence. The following exchange

occurred:

Q. Now, to your knowledge, since you left the Early Police

Department, has there been an allegation regarding that perhaps you

tampered with evidence?

....

A. Yeah, I hear it all the time. I hear stuff since I have been an

officer.

Q. Is there a specific allegation regarding a Mr. Box or a name

similar to that?

A. Not that I’m aware of. If you clarify who Mr. Box is, I might

could be a little bit more specific with my answer.

Q. So, you don’t know of any specific allegation of tampering

with evidence that has been raised since you left the Early Police

Department?

A. Yes, I am. I mean, once I quit, the rumor was I got fired for

tampering with evidence. I mean, that comes with -- that is the nature

of the beast in narcotics.

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Q. Have you -- has there been a specific person or event named

with that rumor?

A. Not to my knowledge. I haven’t been able to figure out where

it stemmed from, but I would hope that if the rumor was true, I would

hope I would have been investigated and would have been found

guilty or innocent, one way or another because --

Q. So, you understand or, I guess, maybe you’ve heard the same

rumors I have?

A. Well, I’ve heard rumors about every narcotics officer, me

included. So, I take a firm stance against dirty officers. I will be the

first to go after a dirty officer . . . .

Q. Has there been an investigation that you know of regarding

allegations made against you for tampering with the evidence?

A. The only thing that I could think of is, one time somebody

came in. We seized a cell phone, and he was a third party, saying,

“Hey, my coworker” -- “The guy, my employee, said that you used

his cell phone to make a phone call,” or something like that, or added

a call or something like that. But that was nothing. That is the only

thing that I can think of, because that was a major case I had at the

time that was pending, that did raise a big stink, because that one was

tied in with a huge methamphetamine case.

Q. No official proceedings or complaints have been brought

against you since you left the Early Police Department?

A. No, sir, and I would like to know if you have any.

[Defense Counsel]: Your Honor, we have no further questions.

The judge then stated that, “[f]rom what I have heard, unless you have other

evidence to put on, then I am not going to allow the questions.” Appellant’s

counsel stated that “we would like to bring this evidence up in the trial regarding

impeachment of Mr. Dibrell. We believe that it does affect his credibility.” The

judge ruled, “I’m not going to allow the evidence, unless you have further proof of

an actual event or events, other than just speculation and rumor.” Appellant did

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not call Chief Mercer to testify on the issue. Nor did Appellant present any other

evidence on the issue.

Appellant contends in his brief that Detective Dibrell could have believed

that the more helpful he was in obtaining convictions in Brown County by giving

testimony that was favorable to the State, the less likely it was that the district

attorney’s office would investigate the tampering allegations against him. Based

on this contention, Appellant argues that the excluded testimony showed a

potential bias or motive on the part of Detective Dibrell to provide testimony that

was favorable to the prosecution and that, therefore, the testimony was admissible

to impeach Detective Dibrell’s credibility. We disagree.

As the trial court concluded, Appellant presented nothing more than

“speculation and rumor” on the impeachment issues. Appellant did not present any

evidence that identified any person who had made a tampering allegation or that

showed the details of any tampering allegation. Nor did Appellant offer any

evidence that Detective Dibrell had been investigated on a tampering allegation in

the past or that he faced a future investigation. Additionally, Appellant did not

show that Detective Dibrell had been demoted at the Early Police Department for

any reason, much less because of a tampering charge. Based on the speculative

nature of the proffered evidence, the trial court could have reasonably concluded

that Appellant failed to meet his burden to demonstrate the relevance of the

evidence to the issue of bias or motive to testify falsely. Therefore, we conclude

that the trial court did not abuse its discretion in excluding the evidence.

Appellant’s fourth issue is overruled.

D. Sufficiency Challenge

In his fifth issue, Appellant challenges the sufficiency of the evidence to

establish that he committed the offense in a drug-free zone. Specifically,

Appellant contends that the evidence was insufficient to support the jury’s finding

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that he committed the offense within 1,000 feet of the premises of a school. See

HEALTH & SAFETY § 481.134(c)(1) (West Supp. 2014).

In response to a special issue, the jury found that Appellant committed the

offense within 1,000 feet of Early High School. We review a challenge to the

sufficiency of the evidence under the standard of review set forth in Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland

2010, pet. ref’d). Under that standard, we examine all of the evidence in the light

most favorable to the verdict and determine whether, based on that evidence and

any reasonable inferences from it, any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at

319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a

sufficiency review, we defer to the jury’s role as the sole judge of the witnesses’

credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at

899.

Detective Dibrell testified regarding the location where he stopped

Appellant’s vehicle. He said that the stop occurred on Early Boulevard, “directly

across from the high school.” He then testified as follows in answer to the

prosecutor’s questions:

Q. And, so, when we say directly across from the high school, can

you give the jury an estimation of approximately how far away they

would have been from the school property?

A. 50 foot maybe -- four lines, including the left turn lane. Then

right on the other side of that is school property.

Q. All right.

A. Or -- I don’t know if it actually belongs to the school, because

you have some occupied space between it and the school, but.

Q. Well, can you safely say that it was fairly close to the school?

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A. Oh, yes, yes, for sure. I mean, just right there across the street.

There may have been like a building or something else, but right

behind that is the school.

Q. All right. So, if I was to ask you specifically about, you know,

from where they were stopped to where the school was located or

school property, the edge of the school property and so forth, would it

have been less than a thousand feet?

A. Oh, yes, definitely.

Q. No doubt about that?

A. No, no question about it.

Q. Okay. Now, the school we are talking about, that is the one

that is located there at the 115 Sudderth Drive in Early, Texas?

A. Yes, sir.

Kirby testified that Detective Dibrell pulled Appellant over by Early High

School. Kirby said that Appellant stopped the vehicle right by Early High School.

Based on the evidence, we conclude that a rational trier of fact could have

found that Appellant committed the offense within 1,000 feet of the premises of a

school. Therefore, the evidence is sufficient to support the finding that Appellant

committed the offense in a drug-free zone. Appellant’s fifth issue is overruled.

This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY

April 16, 2015 JUSTICE

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.

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