Young v. State

• Decision Date: 22 March 2000
• Citation: 14 S.W.3d 748
• Parties: (Tex.Crim.App. 2000) DEMATRIC D. YOUNG, Appellant v. THE STATE OF TEXAS NO. 0314-99 & 0319-99
• Court: Texas Court of Criminal Appeals

Page 748

14 S.W.3d 748 (Tex.Crim.App. 2000)

DEMATRIC D. YOUNG, Appellant v. THE STATE OF TEXAS

NO. 0314-99 & 0319-99

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

March 22, 2000

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS LUBBOCK COUNTY

O P I N I O N

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 premises owned, rented, or leased by a school. This finding formed the basis of a punishment enhancement. The Court of Appeals affirmed the convictions but, finding the evidence legally insufficient to sustain the drug-free zone finding, remanded the causes for a new punishment hearing. We granted the State's Petition for Discretionary Review in order to address the Court of Appeals' sufficiency finding. Specifically, the State argues that it presented sufficient evidence to support the enhancement allegation. We agree.

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 Penal Code, 481.112(c). Both offenses are felonies of the second degree, punishable by at least two but not more than twenty years imprisonment and a fine of up to $10,000. See Tex. Pen. Code Ann. 12.33 (Vernon 1994). Paragraph two of the indictments, the enhancement paragraphs, alleged that the offenses occurred "in a drug-free zone, to wit, in, on, or within 1,000 feet of the premises owned, rented or leased by a school . . . further described as Cavazos Junior High School." Proof of the drug-free zone allegations allows the punishment for each offense to be enhanced pursuant to Section 481.134 of the Texas Health and Safety Code.

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 appellant's drug-free zone enhancement is Section 481.134 of the Texas Health and Safety Code. This statute contains numerous subsections, two of which - subsections (b) and (c) - apply to 481.112(c) offenses. Between these, the Court of Appeals found that subsection (b) defined the hypothetically correct jury charge because it is that subsection which contains the "owned, rented, or leased" language recited in the indictment and jury charge. However, this choice of subsections fails to account for the fact that appellant was actually punished under subsection (c): the punishment range submitted for the jury's consideration was between seven and twenty years confinement and a maximum fine of $20,000, precisely the range permitted by subsection (c). Punishment under (b), on the other hand, would have permitted a range of five to 99 years or life and a maximum fine of $10,000. See Tex. Pen. Code Ann. 12.32 (Vernon 1994). It would also have resulted in the judgment reflecting conviction for a first degree felony rather than second degree, as subsection (b) actually increases the offense level while (c) does not.²

We do not, however, decide the case on this ground because our analysis of the legislative history behind 481.134 compels us to find that subsection (b) did not even apply to the facts of this case. At the time of appellant's offenses, subsection (c) was the only subsection that applied to schools. It is therefore that section which defines the hypothetically correct jury charge for this case.

Prior to May of 1995, 481.134 contained only two subsections: subsection (a), which provided definitions, and subsection (b), which was the sole enhancement provision. Subsection (b) provided:

(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, or 481.120 are doubled if it is shown on the trial of the offense that the offense was committed:

(1) 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

(2) 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, 481.134 was amended twice. A harmonious reading of these amendments leads us to conclude that at the time of appellant's April, 1997 offenses, subsection (b)(1) no longer applied to "school[s]" and therefore does not apply to the facts of this case.

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 Act 1995, 74th R.S., ch. 260, 39 (SB1). The new enhancement provisions, subsections (c) through (f), deal specifically with offenses committed near a school or school property, or on a school bus. Each of these in turn provides the enhancement for a different set of underlying drug-related offenses. Subsection (c), which covers offenses committed, like appellant's, under 481.112(c), provides:

(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:

(1) in, on, or within 1,000 feet of premises of a school; or

(2) 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 Act 1995, 74th R.S., ch. 318, 38 (SB 15). Affecting only subsection (b), this amendment further abandoned the former doubling scheme by adopting the increased-grade approach already employed by several of the new subsections. Subsection (b) now provides:

(b) An offense otherwise punishable as a state jail felony under Section 481.112, 481.113, 481.114, or 481.120 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:

(1) 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

(2) 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...