Fluellen v. State

• Decision Date: 25 March 2003
• Docket Number: No. 06-01-00132-CR.,06-01-00132-CR.
• Citation: 104 S.W.3d 152
• Parties: Robert Joseph FLUELLEN, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

104 S.W.3d 152

Robert Joseph FLUELLEN, III, Appellant, v. The STATE of Texas, Appellee.

No. 06-01-00132-CR.

Court of Appeals of Texas, Texarkana.

Submitted February 19, 2003.

Decided March 25, 2003.

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Richard H. Branson, League City, for appellant.

Joel H. Bennett, Asst. Dist. Atty., Michael J. Guarino, Criminal Dist. Atty., Galveston, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

Robert Joseph Fluellen, III, appeals from his conviction by a jury for the offense of delivery of a controlled substance. The trial court assessed his punishment, with one enhancement, at fifteen years' imprisonment. Fluellen contends prosecutorial bias requires reversal, tape recordings were improperly admitted into evidence, the jury charge improperly included a portion of the Geesa¹ instruction on reasonable doubt, the indictment omitted necessary language about the "drug-free zone" allegation, and the portion of the statute including the "drug free zone" language is unconstitutional. Fluellen also contends that the State did not prove the enhancement was a final conviction and that the evidence is not legally and factually sufficient to support his conviction.

1. Factual Background

Fluellen was convicted by a jury of delivery of a controlled substance, less than one gram of cocaine, in a drug free zone. The indictment contained an enhancement paragraph alleging he had been previously convicted for the felony of delivery of a controlled substance.

At the original jury selection, Fluellen filed a Batson² motion; the trial court sustained the motion and quashed the jury panel. A jury was then selected from a second panel. That jury convicted Fluellen. Fluellen had elected for the trial court to assess punishment. The trial court found the enhancement paragraph true and sentenced Fluellen to fifteen years' incarceration.

The State presented evidence that Fluellen sold crack cocaine to an undercover officer at a location near the football stadium of Galveston Independent School District (G.I.S.D.).

The officer who testified he purchased the cocaine, Allen Bjerke, Jr., was assigned to work with the Galveston County Narcotics Task Force on October 7, 1999, to purchase narcotics from drug dealers. The evidence shows Bjerke was circling the block around the football stadium when he made the purchase. The officer identified Fluellen as the seller. An audiotape was introduced into evidence that contained a recording of the transaction. Bjerke was wearing a microphone that transmitted his conversation to another location, where it was recorded. Bjerke testified he was able to identify every voice as someone to whom he spoke during the making of the tape. Agent Anthony Hera was operating the tape recorder. The three voices on the tape were identified as Bjerke, Officer Joey Quiroga, and Fluellen.

Bjerke identified Fluellen wearing a Pittsburgh Steelers jersey with the number ten and dark pants. He also identified Fluellen in open court. Bjerke testified he gave Fluellen twenty dollars after Fluellen handed him two rocks of crack cocaine. The police task force identification team then approached Fluellen and documented his presence by surreptitiously photographing him. The identification team then provided Bjerke with a photograph they had taken of Fluellen, and Bjerke identified him as the person who made the sale.

In the process of authenticating the audiotape, the officers testified that, when they make a tape, it is initialed by the officer who made the recording and held in evidence. The tape here was turned over to supervisor agent Perry Larvin, who turned it over to the evidence technician, where it was stored in the Galveston County narcotics evidence locker. There is a click on the tape that Bjerke cannot explain.

Fluellen had had a previous encounter with the prosecuting attorney, Joe Maida. Fluellen testified that, as he was exiting a parking lot, Maida almost "hit my vehicle." They stopped, and obscenities were exchanged. Maida followed Fluellen, and the police arrived and asked Fluellen if he had a driver's license and insurance.

2. Sufficiency of Evidence

We first address the sufficiency of the evidence to support the conviction.

Fluellen contends the trial court erred by denying his motion for a directed verdict. This constitutes a challenge to the legal sufficiency of the evidence to support the conviction. Throneberry v. State, 72 S.W.3d 389, 392 (Tex.App.-Fort Worth 2002, pet. dism'd, untimely filed) (citing Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App.1990)).

We first look to see if the evidence was legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996); Hines v. State, 978 S.W.2d 169, 172 (Tex.App.-Texarkana 1998, no pet.). The proper standard of review to determine legal sufficiency is whether the evidence would support the verdict when viewed in the light most favorable to the verdict. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In other words, if any reasonable trier of fact could have found beyond a reasonable doubt the essential elements of the crime, the verdict will be deemed legally sufficient. Clewis, 922 S.W.2d at 134.

The Texas Court of Criminal Appeals recently restated the standard of review for factual sufficiency:

Evidence can be factually insufficient in one of two ways: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). These standards encompass the complete civil appellate law formulation for factual insufficiency. Ibid.

Which standard applies generally depends on whether the complaining party had the burden of proof at trial. Id. at 9-10. If the complaining party did not have the burden of proof at trial, then the first or manifestly unjust standard applies. Id. at 10. If the complaining party on appeal had the burden of proof at trial, then the second or against the great weight and preponderance standard applies. Ibid.

We have, however, slightly modified this approach when a defendant challenges the factual sufficiency of a guilt finding. If the defendant challenges the factual sufficiency of the elements of the offense on appeal, even though the State has the burden of proof, the reviewing court must review the evidence using both standards. Id. at 11; see also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App.2001). In other words, the reviewing court asks whether "a neutral review of all the evidence ... demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11.

Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim.App. 2003).

Fluellen contends the evidence is legally insufficient because the stadium "was not obviously school property," and the State presented no documentary evidence to support its position that the stadium was owned by a school. He further contends because the evidence is insufficient to identify him as the person who sold the cocaine.

A. Drug-Free Zone

Delivery of less than one gram of cocaine is a state jail felony. TEX. HEALTH & SAFETY CODE ANN. § 481.112(b) (Vernon Supp.2003). If the crime occurs "in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board" (defined by statute as a drug-free zone), the punishment range for delivering less than one gram of cocaine is enhanced to that of a third-degree felony. TEX. HEALTH & SAFETY CODE ANN, § 481.134(d) (Vernon Supp.2003).

Henry Boening, Superintendent of the G.I.S.D., testified G.I.S.D. owns Kermit Courville Stadium located on Galveston Island. According to Boening's testimony, the stadium is used by G.I.S.D. for various sporting events, including both varsity and subvarsity football games, as well as middle school track activities. Boening also testified the stadium was being used by the school during October of 1999. (The indictment alleged the offense occurred on October 7, 1999.) The trial court admitted, without objection, photographs of the stadium, dressing rooms located on the north side of the stadium, and the nearby parking lot owned by G.I.S.D.

Fluellen does not direct us to any evidence contradicting Boening's testimony that the stadium was owned by G.I.S.D. on October 7, 1999. We find that, viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the crime occurred in, on, or within 1,000 feet of property owned, rented, or leased by G.I.S.D. Similarly, viewing the evidence in a neutral light, the evidence on whether the crime occurred at or within 1,000 feet of the stadium is neither so weak as to be clearly wrong or manifestly unjust, nor greatly outweighed by a preponderance of the evidence as to be clearly wrong. See Zuliani, 97 S.W.3d 589, 593. The State is not required to admit into evidence deeds or maps showing the stadium was school property. The State may rely "on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 481.134." TEX. HEALTH & SAFETY CODE ANN. § 481.135 (Vernon Supp.2003). Accordingly, we find the evidence factually and legally sufficient to support the drug-free zone enhancement.

B. Identification of Fluellen as the Person Who Delivered the Cocaine

Fluellen also contends the evidence is insufficient to identify him as the person who sold cocaine to the officer. Officer Bjerke identified Fluellen both in the courtroom and immediately after Bjerke bought the drugs as the person who sold him the crack cocaine....