Timothy Shane Leochner v. State

NO. 07-03-0238-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 18, 2005 ______________________________ TIMOTHY SHANE LEOCHNER, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 108TH DISTRICT COURT OF POTTER COUNTY; NO. 46,248-E; HONORABLE ABE LOPEZ, JUDGE _______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Following a plea of not guilty to forgery of a financial instrument, appellant Timothy Shane Leochner was convicted by a jury and punishment was assessed at two years confinement. Presenting two issues, appellant contends the trial court (1) abused its discretion in excusing a juror after the charge was read and the jury began its deliberation because no legal circumstance occurred to prevent continuance of the juror's duty as a juror and (2) abused its discretion in excusing the juror where he, his trial counsel, and the State did not agree on the record to such separation of the jury. We affirm. After a juror's personal concern about his service on the jury was brought to the attention of the court, the matter was discussed by the court and counsel in chambers. Before the charge was read to the jury, at a bench conference, appellant's counsel inquired about the court's decision regarding the subject juror. After discussion, appellant's trial counsel submitted a handwritten motion as follows: Defendant, Timothy Shane Leochner, requests the following: Excuse juror Fisher from further duty prior to jury deliberations. To prevent tainting remaining jurors, Defendant requests that the Court excuse juror Fisher, due to his knowledge of Jerry Ward. Juror Fisher requested the bailiff after the name Derek Wait was mentioned and while Defendant's attorney was out of the Courtroom. Juror Fisher stated that he was afraid that retaliation, in the form of theft, would occur if he was forced to continue as a juror. This disruption occurred following discussion of Derek Wait testifying. Following receipt of this motion signed by appellant's counsel, the trial court excused juror Fisher. After the remaining twelve jurors heard the charge and argument, they returned a verdict of guilty. By his first issue, appellant contends the trial court abused its discretion in excusing juror Fisher after the charge was read and the jury began its deliberation because no legal circumstance occurred to prevent continuance of the juror's duty, and by his second issue, he contends the trial court abused its discretion in excusing juror Fisher where he, his trial counsel, and the State did not agree on the record to such separation. We disagree. Both appellant and the State recognize that abuse of discretion is the appropriate standard of review. See Brooks v. State, 990 S.W.2d 278, 286 (Tex.Cr.App.), cert. denied, 528 U.S. 956, 120 S.Ct. 384,145 L.Ed.2d, S.W.2d 300 (1999). See also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App. 1997). In Tucker v. State, 771 S.W.2d 523, 534 (Tex.Cr.App. 1988), cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578 (1989), the Court held that where the trial court gave the charge requested by the defendant, he could not complain of the charge on appeal. Similarly, we hold that where, as here, the trial court excused the juror pursuant to appellant's written motion, any error was invited. See also McIntyre v. State, 172 Tex. Crim. 510, 360 S.W.2d 875, 876 (1962), cert. denied, 371 U.S. 867, 83 S.Ct. 130, 9 L.Ed.2d 104 (1962), where the court observed: It would be a strange rule which would permit an accused to complain of the excuse of a juror when he had already indicated that he did not want such person to serve on his jury. We conclude the trial court did not abuse its discretion by excusing juror Fisher. Moreover, as a prerequisite to presenting a complaint for appellate review, error must be preserved as provided by Rule 33.1(a) of the Texas Rules of Appellate Procedure. Preservation of error is a systemic requirement that as a first level appellate court we should review on our own motion. See Hughes v. State, 878 S.W.2d 142, 151 (Tex.Cr.App. 1992) (on reh'g), cert. denied, 511 U.S. 1152, 114 S.Ct. 2184, 128 L.Ed.2d 902 (1994); Jones v. State, 942 S.W.2d 1, 2 (Tex.Cr.App. 1997). Here, appellant does not make reference to the record where his complaints on appeal were presented to the trial court as required by Rule 33.1(a). Even assuming that the written motion was not binding on appellant, a question we do not decide, because he did not present his contentions to the trial court, error, if any, was not preserved for review. Issues one and two are overruled. Accordingly, the judgment of the trial court is affirmed. Per Curiam Johnson, C.J., not participating. 2). Actual transfer consists of transferring the real possession and control of a controlled substance from one person to another person. Nevarez v. State, 767 S.W.2d 766, 768 (Tex.Cr.App. 1989) (en banc). The evidence established that Kelly introduced Coleman to appellant and that the two met on a number of occasions prior to September 28, 1998. Coleman testified that on the date of the offense, he and Kelly began their Monday at the sale barn at 6:30 a.m. and Coleman asked where he could buy crank or methamphetamine. According to Coleman, Kelly suggested a few names and places and they ended up parked near a residential driveway. Coleman remained in the truck and Kelly walked to the front porch to speak with a man named "Cash." Just then, appellant pulled up in a car and approached Coleman and asked what he needed. Appellant explained that he did not have crank, but did have "powder" and walked inside the house and returned with some "dope" which Coleman bought for $220. A chemist with the Texas Department of Public Safety testified that he examined the substance and determined it to be cocaine weighing 2.98 grams. We conclude the evidence is legally sufficient to establish delivery by actual transfer from appellant to Coleman of cocaine of one or more but less than four grams. Concluding that the evidence is legally sufficient to support the verdict, we must now determine, after a neutral review of all the evidence, whether it is factually sufficient to support the verdict. Johnson, 23 S.W.3d at 11. It is the exclusive province of the fact finder to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Armstrong v. State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd). The defense's trial strategy was to discredit Coleman by establishing that he was untruthful and that by his testimony, he could not have made a buy from appellant at the time referenced in his report. According to his report, Coleman purchased cocaine from appellant on September 28, 1998, at 10:35 a.m. Coleman testified that after he would make a drug buy in Tulia, it was his routine to return to Amarillo as soon as possible and weigh and test the substance, complete an evidence tag, place the evidence in a temporary narcotics vault, and generate a written report. Mike Amos, Commander of the Panhandle Regional Narcotics Task Force also testified that policy after a drug buy was to generate a report, conduct a field test, and book the narcotics into evidence on the date of the buy, if possible. Coleman confirmed that after a secretary typed his report of appellant's drug sale, he reviewed it and then signed it. After a hearing outside the jury's presence, the trial court permitted the defense to question Coleman regarding a separate drug transaction that also took place on the morning of September 28, 1998. According to Coleman's report of the other drug transaction, he made a purchase in Tulia from Willie B. Hall at 9:31 a.m. and paid over task force money at 9:40 a.m. Utilizing Coleman's protocol as testified to by him, the defense attempted to establish that given the 45-minute drive from Tulia to Amarillo, it would have been physically impossible for Coleman to make a purchase from appellant at 10:35 a.m. in Tulia if Coleman was in Amarillo following up on the buy from Hall. The State argues that although Coleman explained his usual procedure after a drug purchase was to return to Amarillo, there is no evidence to show that Coleman returned to Amarillo after his purchase with Willie B. Hall. Relying on Franklin v. State, 928 S.W.2d 707, 708 (Tex.App.-Houston [14th Dist.] 1996, no pet.), the State further asserts that any conflict in Coleman's testimony goes to his credibility which is to be determined by the fact finder and not to be intruded upon by an appellate court. Elijah Kelly entered into a plea bargain to testify against appellant. He testified that on September 28, 1998, he observed appellant hand "something" over to Coleman, but that he did not see appellant deliver "dope" to him. The State attempted to discredit Kelly by his prior testimony from another trial that resulted from Coleman's undercover operation. Conducting a neutral review of all the record evidence under Johnson, 23 S.W.3d at 11, and without substituting our own judgment, we conclude that the evidence is factually sufficient to support the verdict. Issues one through four are overruled. By issues five through eight, appellant challenges the sufficiency of the evidence to support the enhancement of punishment where the State failed to prove the elements of a playground and that the crime occurred within 1,000 feet of a playground. (1) We disagree. The enhancement paragraph of the indictment recites [a]nd it is further presented in and to said Court that the defendant committed the above offense within 1,000 feet of a playground, to-wit: the Conner Park in Tulia, Texas . . . . Appellant specifically asserts that the State failed to produce evidence to show that Conner Park is a playground. A playground is defined as "any outdoor facility . . . that is (A) intended for recreation; (B) is open to the public; and (C) contains three or more separate apparatus intended for the recreation of children, such as slides, swings, and teeterboards." Tex. Health & Safety Code Ann. § 481.134(a)(3) (Vernon Supp. 2002). Further, in a prosecution under section 481.134, a map showing the location and boundaries of drug-free zones is admissible in evidence and is prima facie proof of the location or boundaries of those areas if the governing body adopts a resolution or ordinance approving the map. See § 481.135. When Officer Jim Mull testified, the State introduced Exhibit 4, a resolution for Tulia approving a drug-free zone map. The resolution contains a map showing the location of Conner Park. During his testimony, Mull circled the location of Conner Park on the map and marked the location of the drug transaction with an "X." According to his testimony, he measured the distance between the driveway where the transaction occurred and the park to be approximately 192 feet. Mull testified that he observed at least three apparatus for the recreation of children at Conner Park. We have searched but found no case law interpreting "apparatus" as used in section 481.134(a)(3)(C). In addition to slides and swings, Mull also observed that the park provided a basketball court, sandbox, and a pavilion. Appellant suggests that we limit the term "apparatus" to include only those items specifically mentioned in the statute, i.e., slides, swing sets, and teeterboards. We agree with the State that the Legislature did not intend to limit playground apparatus to only slides, swing sets, and teeterboards, and that the phrase "such as" could be interpreted as meaning "including but not limited to" the apparatus mentioned in section 481.134(a)(3)(C). We conclude the evidence is sufficient to establish the enhancement paragraph of the indictment that appellant delivered a controlled substance within 1,000 feet of a playground. Issues five through eight are overruled. Don H. Reavis Justice Do not publish. 1. We measure the sufficiency of the evidence by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App. 1997).