FRANCISCO MEJIA OCAMPO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed July 28, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01527-CR
............................
FRANCISCO MEJIA OCAMPO, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-00886-PS
.............................................................
MEMORANDUM OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Lang-Miers
        Appellant Francisco Mejia Ocampo was sentenced by the trial court to fifteen years in prison after a jury found him guilty of possession, in a drug-free zone, of one gram or more but less than four grams of cocaine with intent to deliver. Appellant raises four issues on appeal. In his first two issues, he argues that the trial court erred when it denied his motion to suppress the drug evidence found on him when he was arrested, and when it overruled his objection to the State's alleged lack of proper notice concerning its intent to seek a drug-free-zone enhancement. In his third and fourth issues, he argues that the evidence was insufficient to support the finding that he committed the offense in a drug-free zone. We affirm the trial court's judgment.
 
Factual Background
 
        Officer Jose Grajeda testified that he and other gang-unit officers went to an apartment building in Dallas in response to numerous complaints about possible gang and drug-related activity in that building. Police saw a group of approximately ten people outside the building. Police separated the people to determine “who they were and if they lived there.” Officer Grajeda interviewed appellant, who was one of the people in the group. Officer Grajeda first saw appellant kneeling down, and when appellant stood up, Officer Grajeda “noticed that he was staggering with an unsteady balance.” When he interviewed appellant, Officer Grajeda “could smell an odor of alcohol” and “could tell that his speech was slurred also.” Appellant told Officer Grajeda that he did not live in the building. Officer Grajeda testified that he arrested appellant for public intoxication because he believed that appellant posed a threat to himself and others. More specifically, Officer Grajeda testified that he arrested appellant because Officer Grajeda believed appellant “was a danger to himself because he was intoxicated. The area we are talking about is a high-gang and drug location . . . I didn't want him to drive from there, get behind a wheel of the car, knowing that he had been drinking.” Before putting him in their squad car, Officer Grajeda and his partner searched appellant and found Ziploc bags containing cocaine in his front pocket.
Analysis
 
        A.
 
The Trial Court's Ruling on the Motion to Suppress
 
        Appellant filed a pretrial motion to suppress. The trial court did not hold a hearing on the motion and appellant did not ask for a ruling on the motion before the trial began,   See Footnote 1  or at any time during the State's case-in-chief. When the trial court asked appellant's first witness to take the stand, appellant's counsel stated, “Actually, Your Honor, before we do that, I probably need to go ahead and get a ruling on my pretrial motion . . . [j]ust so we have a ruling.” The trial court responded, “Having heard the evidence on the motion to suppress, it is denied.”
        In his first issue, appellant argues that “the seizure of the cocaine was unlawful” because the police did not have probable cause to arrest him without a warrant. More specifically, appellant disputes the arresting officer's contention that he was intoxicated, and contends that he was not belligerent or threatening, and did not evade arrest. In response, the State argues that appellant's first issue has not been preserved for appellate review because, among other defects, he did not request a timely ruling on the motion to suppress. We agree with the State.
        In order to preserve error on a motion to suppress evidence, “the general rule would require appellant to object and obtain a ruling at the earliest opportunity.” Garza v. State, 126 S.W.3d 79, 84 (Tex. Crim. App. 2004). This general rule is particularly important in a jury trial because if the defendant does not seek a timely ruling from the trial court, “the jury is able to hear evidence which it might never have heard at all.” Id. at 83. In dicta, the court of criminal appeals has explained that waiting to seek a ruling on a pretrial motion to suppress until after witnesses have testified, without objection, about the evidence that a defendant seeks to suppress, is “an 'unorthodox' course of conduct [that] would not be appropriate in a jury trial.” Id. at 83.
        The procedural facts in appellant's case are analogous to the facts in Coleman v. State, 113 S.W.3d 496 (Tex. App.-Houston [1st Dist.] 2003), aff'd, 145 S.W.3d 649 (Tex. Crim. App. 2004). In that case, our sister court explained,
 
 
Appellant's second motion to suppress was not brought to the trial court's attention until after the State had rested its case during the guilt-innocence stage of the trial. By that time, four police officers and a crime laboratory chemist had already testified extensively about the allegedly illegally seized items. Because his motion to suppress was not timely, appellant waived error, if any.
 
Id. at 500. We agree with our sister court's conclusion in Coleman and apply the same analysis in this case. Here, appellant did not seek a ruling on his motion to suppress until after numerous witnesses, including Officer Grajeda and his partner, testified about appellant's arrest and the drugs found on appellant. We conclude that appellant waived error, if any, by not seeking a timely ruling on his pretrial motion. See id. We overrule appellant's first issue.
        B.
 
Appellant's Objection Concerning Drug-Free Zone Special Issue
 
        In his second issue, appellant argues that “[t]he trial court erred in allowing the State to submit a special issue enhancement to the jury concerning a 'drug-free school zone' enhancement due to the State's failure to provide proper and timely written notice.” In response, the State argues that this issue should be overruled because appellant's complaint on appeal is different than appellant's complaint to the trial court. We agree with the State.
        Although appellant contends that he “objected to the lack of proper notice,” the record demonstrates that appellant received notice, and that his actual objection to the trial court was that the drug-free-zone allegation was not included in the indictment:
 
[Appellant's Counsel]: I notice that the State has tendered-they served me with a motion for a special [issue]. . . . The original indictment was F06-61168, in that indictment, there was no allegation of a drug-free school zone . . . .
 
 
 
[The Court]: You are saying they have not filed notice in this case?
 
 
 
[Appellant's Counsel]: No, sir. What I'm saying [is] this is going to be a variance issue, and I want to put this on the record ahead of time.
 
 
 
[The Court]: What do you mean variance?
 
 
 
[Appellant's Counsel]: Because if you look at the new indictment-
 
 
 
[The Court]: Yeah.
 
 
 
[Appellant's Counsel]: -the indictment we are going to trial on, no mention of a drug-free school zone.
 
 
 
. . .
 
 
 
 
[Appellant's Counsel]: My problem is they are going to seek to get information on something that is not indicted.
 
 
 
[The Court]: You are saying absent the indictment allegation,they can't do it?
 
 
 
[Appellant's Counsel]: Yes sir, that's my point.
 
(Emphasis added.) This exchange demonstrates that, contrary to his contention on appeal, appellant received written notice of the State's intent to seek an affirmative finding on a drug-free-zone enhancement.   See Footnote 2  Because the record expressly contradict's appellant's argument, we overrule appellant's second issue.
C.
 
Sufficiency of the Evidence to Support the Drug-Free-Zone Finding
 
        In his third and fourth issues, appellant contends that the evidence is legally and factually insufficient to support the jury's finding on the drug-free-zone special issue. In response, the State argues that the evidence is sufficient.
 
 
1.
 
Relevant Evidence
 
        Officer Grajeda described State's exhibit 1 as an overhead picture of the area where appellant was arrested:
 
[The State]: I'm going to show you what is being marked for identification purposes as State's Exhibit 1, if you-looking at this, do you recognize this?
 
 
 
[Officer Grajeda]: Yes.
 
 
 
 
. . .
 
 
 
 
[The State]: What is it?
 
 
 
[Officer Grajeda]: Basically a[n] overhead picture of the area, like Spring Valley, Coit, Maham Road.
 
 
 
[The State]: And can you see the location of this arrest on this map?
 
 
 
[Officer Grajeda]: Yes.
 
 
 
[The State]: Okay. And is this-based on your knowledge of the area, does this look like a fair and accurate depiction of the area to you?
 
 
 
[Officer Grajeda]: Yes.
 
The trial court admitted exhibit 1 into evidence, and Officer Grajeda used a red marker on it to “indicate the location of this arrest to the jury with a circle.” The prosecutor then asked him if he drew the circle “where y'all located this defendant and arrested him,” and Officer Grajeda answered, “Yes.” Officer Grajeda's partner pointed to the red circle on the map to identify the location where Officer Grajeda questioned appellant.
        Kim Kendrick, a digital photographer employed by Dallas County Public Works, testified that she created State's exhibit 1, which she called “a digital map,” by using a satellite picture. Using information from “the Dallas Central Appraisal District tax base, which is the 2005 certified tax rol[l]s,” she labeled the location of J. Frank Dobie Elementary School. And using computer software “calibrated according to the geometric and spatial data that has been provided,” she marked the map with a red polygon to indicate the limits of the area 1,000 feet from the school. She testified that the small circle drawn by Officer Grajeda “is within 1,000 feet, the school zone of J. Frank Dobie Elementary.” During cross-examination, Kendrick testified that the margin of error for her polygon identifying the school zone surrounding Dobie Elementary “is 3 feet.” During the State's re-direct examination, Kendrick testified that the circle drawn by Officer Grajeda is “greater than three feet away from the border” of the school zone.
 
 
2.
 
Applicable Law
 
        Under the health and safety code, a person commits a second degree felony if the person knowingly possesses cocaine weighing one gram or more but less than four grams with intent to deliver. Tex. Health & Safety Code Ann. § 481.112(a), (c) (Vernon 2003). But under the “Drug-Free Zones” section of the health and safety code, the minimum term of confinement for that offense is increased by five years, and the maximum fine is doubled, if the offense is committed “in, on, or within 1,000 feet of premises of a school.” Id. § 481.134(c)(1) (Vernon Supp. 2007). The code's definition of “school” includes “a private or public elementary or secondary school.” Id. § 481.134(a)(5).
        3.
 
Standard of Review
 
        When reviewing challenges to the legal sufficiency of the evidence, we consider all the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007);Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict or that the verdict seems clearly wrong or manifestly unjust. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007) (citing Watson, 204 S.W.3d at 417).
        We measure the legal and factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997) (legal sufficiency); Wooley v. State, No. PD-0861-07, 2008 WL 2512843, at *6 (Tex. Crim. App. June 25, 2008) (factual sufficiency).
 
 
4.
 
Application of the Law to the Facts
 
        The jury answered “yes” to the special issue of whether appellant's possession of cocaine with intent to deliver “occurred in, on, or within 1,000 feet of a premises owned, rented, or leased by a school, to wit: J. Frank Dobie School, 14140 Rolling Hills Lane, Dallas, Texas[.]” On appeal, appellant argues that the evidence is both legally and factually insufficient to support the finding that the offense occurred in a drug-free zone because no witness testified that “J. Frank Dobie School 'owned, rented or leased the premises (real property) at 14140 Rolling Hills Lane, Dallas, Texas.” But the State was not required to demonstrate that the school “owned, rented, or leased the premises at 14140 Rolling Hills Lane, Dallas, Texas.” Instead, it was required to prove that the offense occurred “in, on, or within 1,000 feet of premises of a school.” Tex. Health & Safety Code Ann. § 481.134(c)(1).
        After reviewing all of the evidence under the appropriate standards of review, and measuring the legal and factual sufficiency of the evidence using the elements of a drug-free-zone enhancement, we conclude that the evidence is legally and factually sufficient to support the finding that appellant knowingly possessed one gram or more but less than four grams of cocaine, with intent to deliver, “in, on, or within 1,000 feet of premises of a school.” State's exhibit 1, and the undisputed testimony from the State's witnesses, demonstrates that the offense occurred within the drug-free zone surrounding Dobie Elementary. A rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Likewise, the great weight and preponderance of the evidence does not contradict the jury's finding, and that finding is not clearly wrong or manifestly unjust.
        We overrule appellant's third and fourth issues.
Conclusion
 
        We overrule appellant's four issues and affirm the trial court's judgment.
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061527F.U05
 
Footnote 1 The only reference in the reporter's record to any motions before trial is this brief exchange before voir dire:
 
 
[Appellant's Counsel]: These are some motions and I have already served them on the State this morning. The only motion I have added in there-
 
 
 
[The Court]: My question is subject to the motions, are you ready for trial?
 
 
 
[Appellant's Counsel]: Yes, Your Honor.
Footnote 2 Appellant does not argue on appeal that the drug-free-zone allegation had to be included in his indictment, and we note that enhancement allegations do not need to be included in an indictment. See Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997).