Aundraye M. Curry v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00104-CR

Aundraye M. Curry,

Appellant

v.

The State of Texas,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court No. 30673

MEMORANDUM Opinion

Curry appeals his conviction for possession of cocaine in a drug-free zone, that is, an area in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board. Tex. Health & Safety Code Ann. 481.134(d)(1) (Vernon Supp. 2007); see id. 481.102(2)(D), 481.134(d) (Vernon Supp. 2007), 481.115(a)-(b) (Vernon 2003). We affirm.

In Curry s one issue, he contends that the evidence that he possessed cocaine in a drug-free zone was legally and factually insufficient. The parties do not separately brief legal and factual sufficiency.

In assessing the legal sufficiency of the evidence under Jackson v. Virginia, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)) (internal footnote omitted); see Jackson v. Virginia, 443 U.S. 307 (1979). [C]ourts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review. Evans v. State, 202 S.W.3d 158, 165 n.27 (Tex. Crim. App. 2006) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 821 (Tex. 2005)). A legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence. Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (quoting Cardenas v. State, 30 S.W.3d 384 (Tex. Crim. App. 2000)).

There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006) (quoting Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004)); accord Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App. 2005). The reviewing court must exercise appropriate deference in order to avoid substituting its judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005) (citing Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996)). We set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Prible at 731; accord Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); see also Watson at 414-15. [A]n appellate court must first 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 before it is justified in reversing for factual insufficiency of the evidence. Watson at 417.

Captain Elmer Tanner and Detective Sergeant Stan Farmer, two sheriff s deputies, attempted to detain Curry for trespassing. Under the State s evidence, Curry then pulled a small plastic bag from his pocket, threw the bag on the ground, and attempted to flee by running; after the deputies arrested Curry, they returned to the place where they had attempted to detain him, and found a fresh footprint there and found that the bag contained crack cocaine.

As to Curry s possession of cocaine, he points to the following evidence:

1. The fact that cocaine was found in an area of high drug activity creates the real possibility that the drugs found did not belong to Appellant but to someone else;

2. Both Captain Tanner and Sergeant Farmer left the scene where they saw Appellant drop something and travelled at least one city block away and cannot therefore trace custody of the drugs that were eventually found back to Appellant beyond a reasonable doubt;

3. The package that was retrieved by the officers was never fingerprinted to determine whether Appellant s fingerprints were on the package;

4. The footprint found in the grass was never examined to determine whether Appellant s shoe made the actual print.

(Br. at 10.)

The State points primarily to the following evidence. Captain Tanner and Sergeant Farmer testified that they saw Curry throw down a small plastic bag before he ran. Tanner and Farmer testified that the chase of Curry extended no more than one block, and that during the chase they were within sight of the place where Curry threw down the bag and no other person approached that place. Farmer testified that there were no other drugs or drug paraphernalia near where Curry threw down the bag. Captain Tanner, Sergeant Farmer, and a third sheriff s deputy, Duane Onstott, testified to a fresh footprint in the damp ground where Curry threw down the bag. Tanner testified that because of the size and shape of the bag, it was not possible to do a fingerprint analysis of it. Tanner also testified that because of the grass in the footprint, it would not be possible to compare the print to the tread of Curry s shoe; Farmer testified that there was mud on Curry s shoes.

As to Curry s possession in a drug-free zone, he points to the following:

1. No official map was ever produced showing the area 1000 feet from the school property and no witness ever pointed out on such a map that the location where the drugs were found was within the 1000 foot area;

2. There was no testimony that anyone ever measured the distance from the school property to the location where the drugs were found by measuring tape, traffic wheel, or any other on site measuring device;

3. Officer Latta testified that he was asked to measure the distance between two points, but he never identified those officers; therefore, there is no evidence that the points given were actually the school and the location where the drugs were found;

4. Officer Latta stated that he was not aware that Point A was a school, it was merely based on what the officers had told him;

5. Officer Latta testified that the location he was given for Point B was a house or some other structure; however, there was no testimony that Appellant ever had possession of illegal drugs in any house or other structure.

[sic] (Br. at 13); see Tex. Health & Safety Code Ann. 481.135(a) (Vernon Supp. 2007) (maps).

The State points primarily to the following evidence. Captain Tanner and Sergeant Farmer testified that the place where Curry threw down the crack was in a drug-free zone within 1,000 feet of an elementary school. Another deputy, Brett Latta, testified that he used Global Positioning System based computer software to calculate that the distance between the point where Curry threw down the crack and a point at the center of elementary school property was less than 450 feet.

The State need not offer the official engineer s map contemplated by Texas Health and Safety Code Section 481.135(a) to prove the location of a drug-free zone. Tex. Health & Safety Code Ann. 481.135(d) (Vernon Supp. 2007); see Fluellen v. State, 104 S.W.3d 152, 160 (Tex. App. Texarkana 2003, no pet.); Tex. Health & Safety Code Ann. 481.135(a). Moreover, Curry points to no authority for the proposition that the statute requires direct measurement of how far from a school he was when he possessed the crack, and we are aware of none.

Curry s attacks on the testimony of Deputy Latta are of little effect, since Latta s testimony largely repeated the testimony of the other deputies to the effect that Curry threw down the cocaine in a drug-free zone within 1000 feet of an elementary school. Contrary to Curry s argument, however, Latta testified clearly that one of the reference points given him by detectives was school property, and Latta merely speculated that the other reference point represented a structure rather than the vacant lot that it in fact represented.

Viewing that evidence and the reasonable inferences therefrom in the light most favorable to the verdict, we hold that rational jurors could have found beyond a reasonable doubt that Curry possessed cocaine in a drug-free zone. The evidence was legally sufficient.

Viewing that evidence in a neutral light, and giving due deference to the jury s credibility determinations, we hold that the jury was rationally justified in finding beyond a reasonable doubt that Curry possessed cocaine in a drug-free zone. The evidence was factually sufficient.

The evidence that Curry possessed cocaine in a drug-free zone was legally and factually sufficient. We overrule Curry s issue.

Having overruled Curry s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed January 2, 2008

Do not publish

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