Ericton Carnell Franklin v. The State of Texas--Appeal from 35th District Court of Brown County

11th Court of Appeals

Eastland, Texas

Opinion

Ericton Carnell Franklin

Appellant

Vs. No. 11-02-00349-CR B Appeal from Brown County

State of Texas

Appellee

The jury convicted Ericton Carnell Franklin of delivery of cocaine in a drug-free zone. The trial court assessed his punishment at confinement for 10 years. We affirm.

Background Facts

Billy Bloom, an agent with the West Central Texas Interlocal Crime Task Force, testified that his primary responsibility with the task force was to investigate not only drug trafficking and distribution, but also the people who manufacture or possess illegal drugs. Agent Bloom stated that most of his investigations involved either an officer going undercover to infiltrate and purchase drugs or, in cases where there is a safety issue, a cooperating individual will go directly to the dealer. On March 7, 2001, Agent Bloom spoke with Randolph Lynn Speake, II, who was cooperating in the investigation of appellant. Agent Bloom took Speake to an isolated area and searched to be sure that Speake did not have any illegal drugs, weapons, or any type of contraband. Agent Bloom gave Speake two $20 dollar bills to purchase crack cocaine.

Agent Bloom drove Speake to the block where appellant lived. Appellant s residence was within 1000 feet of Cecil Holman Park. The park was equipped with an outdoor playground open to the public and intended for recreational use. The playground had a slide, a swing set, teeter-totter boards, monkey bars, and a sand box area. Agent Bloom further stated that the playground was not on the premises of a school.

Agent Bloom watched Speake go into appellant s residence. After a while, Speake came out of the house and walked to Agent Bloom s vehicle. In the vehicle, Speake handed Agent Bloom two rocks of crack cocaine.

Speake testified that at the time of trial he had been benched warranted from the Dallas County Jail where he had a case pending against him. Speake stated that, on March 7, 2001, he worked with Agent Bloom investigating drug transactions in Brown County. On March 7, he was wearing a recording device when he went to appellant s house. Speake used the $40 that Agent Bloom had given him to buy two rocks of crack cocaine. Speake gave the rocks of crack cocaine to Agent Bloom.

The tape recording was played for the jury. The voices of appellant and of Speake were identified by both Agent Bloom and Speake. In the tape, appellant arranged to buy two 9-millimeter guns plus ammo for $200 a piece from Speake s buddy in Dallas. Appellant also delivered to Speake two rocks of crack cocaine. The rocks were identified in the laboratory report as weighing .27 grams and containing cocaine.

Court-appointed Counsel s Brief

Appellant s court-appointed counsel has filed a brief in which he states that, after a diligent search of the record and consulting with appellant, he is unable to identify any arguable ground for reversal. Counsel states that the indictment, the trial on the merits, and the sentencing contain no reversible error. Counsel has furnished appellant with a copy of the brief and advised appellant of his right to review the record and file a pro se brief. A pro se brief has not been filed. Counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

Appellant s Suggested Issues

When counsel asked appellant for input on possible grounds of error, appellant informed counsel of the following: the complete disregard of TEX. CODE CRIM. PRO. ANN. art. 38.141 (Vernon Pamph. Supp. 2003); that the jury disregarded the trial court s instructions; that there was no proof that the transaction took place in a drug-free zone; that one of the State s witnesses violated the motion in limine; and that the trial court erred by failing to grant a motion for new trial. Following the procedures outlined in Anders v. California, supra, and Gainous v. State, supra, counsel has briefed these five issues.

First, appellant argues that the requirements of Article 38.141 were not met. However, this statute does not apply to the facts of this case. Article 38.141 provides for the corroboration of the testimony of a witness who is neither a licensed peace officer nor a special investigator and was added to the Code of Criminal Procedure effective September 1, 2001. The offense in this case was committed on March 7, 2001, more than five months before Article 38.141 was in effect. Moreover, counsel points out that Speake s testimony is corroborated through the tape recording and through Agent Bloom s testimony. We agree. The first issue is overruled.

Next, appellant argues that the jury disregarded the trial court s instruction. Appellant contends that the conviction should be overturned because he was convicted by their opinion. The jury was the sole trier of fact and, as such, could believe all, part of, or none of any of the witnesses testimony. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981). Nothing in the record indicates that the jury failed to follow the court s instructions or improperly exercised its duty as finder of fact. The second issue is overruled.

In the third issue, appellant argues that there is no evidence that the transaction occurred in a drug-free zone. TEX. HEALTH & SAFETY CODE ANN. 481.134 (Vernon 2003) provides that a drug-free zone includes a playground not located on the same premises as a school that is open to the public, is intended for recreational use, and has three or more separate apparatus intended for the recreation of children. Agent Bloom described the playground at the park in sufficient detail to meet the definition of a drug-free zone. The third issue is overruled.

Next, appellant complains that Agent Bloom violated his motion in limine concerning unadjudicated extraneous offenses. The trial court granted the motion but, when Agent Bloom testified, appellant objected that the testimony was hearsay and non-responsive. Both objections were sustained, and the jury was instructed to disregard. Motions for mistrial were not made. At trial, appellant received the relief he requested, and he now raises a different complaint on appeal. Appellant has not preserved this issue for appellate review. TEX.R.APP.P. 33.1.

Finally, appellant complains that the trial court erred when it did not grant a mistrial. Appellant does not specify exactly what in the record would support a mistrial. After reviewing the record, we find that the trial court did not err in overruling appellant s motions for mistrial. The fifth issue is overruled.

All of appellant s suggestions made to his court-appointed attorney and stated in counsel s brief have been considered. Each argument is overruled.

This Court s Independent Review

Following the procedures outlined in Anders, we have independently reviewed the record. We note that the evidence is both legally and factually sufficient. Jackson v. Virginia, 443 U.S. 307 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The record reflects that trial counsel rendered reasonably effective assistance. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986). We agree that the appeal is without merit.

The judgment of the trial court is affirmed.

PER CURIAM

July 10, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

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

Wright, J., and McCall, J.