IN THE

TENTH COURT OF APPEALS

No. 10-08-00072-CR

EDDIE RAYSHARD POSEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2077-1736-C2

MEMORANDUM OPINION

Eddie Rayshard Posey was convicted of possession with the intent to deliver 

cocaine in the amount of one gram or more but less than four grams. TEX. HEALTH &

SAFETY CODE ANN. § 481.112(c) (Vernon 2003). He was further charged with committing 

the offense in a drug free zone, that being within 1,000 feet of a youth center. Id. § 

481.134(b) (Vernon Supp. 2008). The jury made that affirmative finding. Punishment 

was assessed by the jury at 40 years in prison. We affirm.

Posey first asks that the appeal be abated so that the trial court can make written 

findings of fact and conclusions of law in support of its decision to overrule Posey’s 
Posey v. State Page 2

motion to suppress. The trial court has now submitted those written findings and 

conclusions. Posey’s first issue is overruled.

In his second issue, Posey argues that the trial court improperly allowed the State 

to introduce “drug free zone” evidence to the jury at the guilt/innocence phase of the 

trial. Posey contends that he objected to the testimony of the director of the Dewey 

Recreational Center and requested that the admission of any drug free zone evidence be 

restricted to the punishment phase of the trial. But prior to the director’s testimony, 

other witnesses testified about “drug free zone” evidence without objection by Posey. 

The Texas Health and Safety Code defines a drug free zone for the purposes of 

this offense as “within 1,000 feet of premises of a . . . public or private youth center...” 

TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)(1) (Vernon Supp. 2008). A youth center 

is described as any recreational facility or gymnasium that is intended primarily for use 

by children and regularly provides athletic, civic, or cultural activities. Id. § 

481.134(a)(7). Two other witnesses testified, without objection by Posey, before the 

director of the Dewey Center about the location of the Center in relation to the location 

of where the offence occurred and about the activities that occur at the Center. Lester 

Williams, a former security guard for the Parkside Villages Apartments where the 

offense occurred, testified that the location of the Center was across the street from 

those apartments. He also stated that the Center was a recreational center for children 

which consisted of a large playground, a small water park, and a basketball court as 

well as the recreation center, itself. He agreed that a lot of children from the Parkside 

Villages Apartments go to the Center to play. Additionally, Joe Ashby, a former Waco 
Posey v. State Page 3

Police Officer, testified that the Center is a spot where local children gather to play in 

the park and has programs for youth. When shown a map of the area, Ashby identified 

the apartments where the offense occurred as within a 1,000 foot radius of the Center. 

To preserve error in admitting evidence, a party must make a proper objection 

and get a ruling on that objection. TEX. R. APP. P. 33.1; Lane v. State, 151 S.W.3d 188, 193 

(Tex. Crim. App. 2004) (citing Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)). 

A party must object each time the inadmissible evidence is offered or obtain a running 

objection. Id. “An error [if any] in the admission of evidence is cured where the same 

evidence comes in elsewhere without objection.” Id. See also Leday v. State, 983 S.W.2d 

713, 718 (Tex. Crim. App. 1998) ("Our rule . . . is that overruling an objection to evidence 

will not result in reversal when other such evidence was received without objection, 

either before or after the complained-of ruling."). If admission of the “drug free zone” 

evidenced at the guilt/innocence phase was error at all, it was cured when the other 

witnesses testified about the Center and its location without objection. Posey’s second 

issue is overruled.

Posey next complains about the trial court’s submission of the drug free zone 

issue in the charge on guilt/innocence. The trial court submitted a special issue asking 

the jury whether the offense was committed in a drug free zone. Posey objected to the 

submission of this issue. We assume, without deciding, that it was error to charge a 

drug free zone issue pursuant to section 481.134(b)1 in the guilt/innocence phase of the 

 

1 The statute provides for an increase in the grade of the offense “if it is shown at the punishment phase of 

the trial,” that the offense was committed within 1,000 feet of a youth center. TEX. HEALTH & SAFETY 

CODE ANN. § 481.134(b)(1) (Vernon Supp. 2008).
Posey v. State Page 4

trial and proceed to the harm analysis. As explained below, we cannot say that, if it was 

error, it caused Posey some harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. 

App. 1985). 

Subsection (b) raises the grade of the offense from a second degree felony to a 

first degree felony if the offense, as it was charged here, was committed within 1,000 

feet of a youth center. See Young v. State, 14 S.W.3d 748, 752 (Tex. Crim. App. 2000). 

The Apprendi2line of cases requires that any discrete finding of fact that has the effect of 

increasing the maximum punishment that can be assessed must be made by the jury 

and proved beyond a reasonable doubt. Barrow v. State, 207 S.W.3d 377, 379 (Tex. Crim. 

App. 2006). A jury is thus required to find the offense with which Posey was charged 

was committed in a drug free zone. We cannot say that it would cause some harm to a 

defendant who also went to the jury for punishment to have the charge submitted to the 

jury during guilt/innocence when it would not cause some harm, and in fact would be 

required by Apprendi, to a defendant who elected to have the trial court assess 

punishment. Posey’s third issue is overruled.

Lastly, Posey contends that the trial court erred in allowing the State to introduce 

inadmissible hearsay evidence before the jury during the punishment phase. Posey 

objected the first time Officer Harrison began testifying as to hearsay statements made 

to him. That objection was overruled. But that particular statement by the officer is not 

what Posey is complaining about on appeal. He complains that a later statement by 

 

2 See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Ring v. Arizona, 536 U.S. 

584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. 

Ed. 2d 403 (2004).
Posey v. State Page 5

Officer Harrison, in response to a different question posed by the State, that “[s]he said 

that there’s been numerous times in the past that she had seen him in possession of 

drugs and firearms[,]” was the inadmissible statement. Posey did not object to the 

alleged hearsay response by Officer Harrison. Posey has not preserved his complaint 

for review. TEX. R. APP. P. 33.1. His fourth issue is overruled.

Having overruled each issue presented on appeal, we affirm the trial court’s 

judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed March 25, 2009

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