Kenneth Charles Franklin v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

11th Court of Appeals

Eastland, Texas

Opinion

Kenneth Charles Franklin

Appellant

Vs. No. 11-02-00082-CR -- Appeal from Palo Pinto County

State of Texas

Appellee

The jury convicted appellant of the offense of delivery of a controlled substance, to-wit: methamphetamine. The jury also made an affirmative finding that the offense occurred within 1,000 feet of a school. See TEX. HEALTH & SAFETY CODE ANN. ' 481.134(c) (Vernon Pamph. Supp. 2002). The jury assessed appellant=s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 20 years. The jury also imposed a fine of $20,000. We affirm.

In his sole point of error, appellant attacks the legal sufficiency of the evidence supporting the finding that the offense occurred within 1,000 feet of a school. Evidence is legally sufficient when, viewed in the light most favorable to the prosecution, it is sufficient to permit a rational trier of fact to find all the essential elements of the charged crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).

The State offered testimony that appellant delivered methamphetamine to a confidential informant at his residence. An investigator with the Texas Department of Public Safety=s narcotics division testified that he observed the transaction from approximately two blocks away while parked at an elementary school. The investigator further testified that he contacted an official with the surveying department of the City of Mineral Wells in order to determine the distance of appellant=s home from the school. The investigator personally observed the city official take a measurement from a plat map of the distance between the property line of appellant=s residence and the property line of the school. The investigator testified that the city official determined the distance to be 670 feet.

Appellant argues that the investigator=s testimony was legally insufficient to establish the distance from appellant=s residence to the school. Citing Young v. State, 14 S.W.3d 748 (Tex.Cr.App.2000), appellant contends that the State should have either introduced a map or plat drawn to scale or offered the testimony of someone who had personally taken a ground measurement of the distance. The State in Young offered into evidence a map and the testimony of someone who had measured the distance on the ground. The Court of Criminal Appeals held that this evidence constituted sufficient evidence of distance. Young did not hold that evidence of this type is required in order to support a jury finding regarding a drug-free zone.

The investigator=s testimony constituted probative proof of the distance between appellant=s residence and the school. His testimony revealed an element of reliability based on the fact that he had obtained the distance from a city official working in the city=s surveying department. Moreover, no objection was made to the foundation or admissibility of his testimony. See Young v. State, supra at 754. A rational trier of fact could have determined beyond a reasonable doubt that the offense occurred within 1,000 feet of a school based on investigator=s testimony. Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

August 8, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.