In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-18-00453-CR

___________________________

On Appeal from the 271st District Court

Jack County, Texas

Trial Court No. 4800

Before Sudderth, C.J.; Gabriel and Wallach, JJ.

Memorandum Opinion by Chief Justice Sudderth

CHRISTY MICHELLE PRUITT, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

In January 2017, seventeen-year-old M.T.P. died after mixing his deceased stepgrandfather’s morphine tablets with Xanax. Before he went to his aunt’s house to 

find the morphine tablets, M.T.P. spoke on the phone to Appellant Christy Michelle 

Pruitt, his mother, who then sent him the following text: “Don’t let your Aunt 

Jennifer know what u r there for.” About 20 minutes later, Appellant sent him 

another text, stating, “Take 1 now then in an hour and half u can take another one.” 

M.T.P. took Xanax before leaving for his aunt’s house, and he took nine morphine 

tablets when he returned home.

A jury found Appellant guilty of delivery of a controlled substance,found that 

she had used or exhibited a deadly weapon (morphine) during her commission of the 

offense, and found that the delivery of the controlled substance caused M.T.P.’s death 

or serious bodily injury. See Tex. Health & Safety Code Ann. § 481.122. The jury 

assessed her punishment at 35 years’ confinement and a fine of $10,000. In three 

issues, Appellant challenges the sufficiency of the evidence to support the guilt and 

deadly weapon findings and the trial court’s failure to order a venue change. Because 

the evidence supports the jury’s findings, and because Appellant waived her right to a 

venue change, we affirm.
3

Background1

Seventeen-year-old M.T.P. died on January 16, 2017, from an overdose of 

morphine and alprazolam, the active ingredient in Xanax. The morphine tablets had 

been prescribed to his step-grandfather while in hospice care. After his stepgrandfather’s death, M.T.P.’s aunt Jennifer, who had inherited the step-grandfather’s 

house, hid the bottle of tablets in a utility closet. On the night before he died, M.T.P. 

went to the house, told Jennifer that he was looking for a bag belonging to his 14-

year-old sister J.R.P., and took the morphine from the closet. 

Before stopping by Jennifer’s house, M.T.P.spoke to Appellant on the phone 

and, soon after, received the text from her that said, “Don’t let your Aunt Jennifer 

know what u r there for,” followed by the second text, “Take 1 now then in an hour 

and half u can take another one,” sent 20 minutes later. M.T.P. had taken Xanax 

before going to Jennifer’s house, and when he returned home, he took the nine 

morphine tablets. According to the medical examiner’s report, M.T.P. died the next 

day “from the toxic effects of morphine and alprazolam.” 

Appellant filed a motion to change the trial’s venue from Jack County to Wise 

County. See Tex. Code Crim. Proc. Ann. art. 31.03. Appellant did not request a 

hearing on the motion, and the trial court did not rule on it. 

1Because Appellant’s first issue contests the sufficiency of the evidence to

support her conviction, we save a more detailed recitation of the facts for our 

discussion of that issue. 
4

Discussion

I. Sufficiency of the evidence as to guilt

In her first issue, Appellant argues that the evidence was insufficient to support

a guilty finding. 

A. Standard of review 

In our evidentiary-sufficiency review, we view all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found 

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. 

Crim. App. 2017). The standard of review is the same for direct and circumstantial 

evidence cases; circumstantial evidence is as probative as direct evidence in 

establishing guilt. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). 

To determine whether the State has met its Jackson burden to prove a 

defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as 

defined by the hypothetically correct jury charge to the evidence adduced at trial. See

id.; see also Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) (“The essential 

elements of an offense are determined by state law.”). Such a charge is one that 

accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State’s burden of proof or restrict the State’s theories of liability, and 

adequately describes the particular offense for which the defendant was tried. Jenkins, 

493 S.W.3d at 599. The “law as authorized by the indictment” means the statutory 
5

elements of the charged offense as modified by the factual details and legal theories 

contained in the charging instrument. See id.; see also Rabb v. State, 434 S.W.3d 613, 616 

(Tex. Crim. App. 2014) (“When the State pleads a specific element of a penal offense

that has statutory alternatives for that element, the sufficiency of the evidence will be 

measured by the element that was actually pleaded, and not any alternative statutory 

elements.”).

B. Proving delivery of a controlled substance

Appellant’s indictment alleged that she had knowingly delivered, by actual or

constructive transfer, morphine, a controlled substance, to M.T.P., who was younger 

than 18. See Tex. Health & Safety Code Ann. §§ 481.002(8), .102(3)(A), .122. “[O]ne 

method of constructive transfer is for the transferor to instruct the recipient on the 

location of the contraband. If the contraband is already in place, the constructive 

transfer is complete [when] the transferor gives the instruction.” Sims v. State, 117 

S.W.3d 267, 277–78 (Tex. Crim. App. 2003). Actual transfer occurs when the 

recipient then retrieves the contraband. Id. at 278. 

C. Relevant evidence

Appellant’s and her sister Jennifer’s stepfather had died at home in hospice care

in May 2015. At the time of his death, their stepfather had had a prescription for 30 

milligram morphine tablets. When he died, Appellant’s mother told Jennifer, who 

lived with her, to hide the bottle containing the remaining morphine tablets until they 

could dispose of it. Jennifer put the bottle in a basket in a utility closet and put a large 
6

metal bowl over the basket. This closet also had a refrigerator where drinks and 

snacks were kept, and it was accessible to anyone at the house. After their mother 

died suddenly in July 2015 after a stroke, Jennifer inherited her parents’ house, and in 

late 2016, Jennifer allowed Appellant to move in with her. In January 2017, Appellant 

was still living with Jennifer. 

Appellant had two children with her ex-husband David Pruitt—M.T.P. and 

J.R.P. After their 2014 divorce, David became managing conservator of the children.

In 2017, David, a welder, was working on a project about 400 miles away from home

and would typically be gone for five days at a time, leaving J.R.P. in M.T.P.’s care. On 

the evening of January 15, 2017, the children were with David at his house until he

left for work around 8:00 p.m. After that, the children were home without adult 

supervision. Appellant was also out of town, in Midland. 

After his dad left, M.T.P. took some Xanax and gave some to his sister.

2 Then 

around 9:00 p.m., M.T.P. stopped by Jennifer’s house and, after telling her that he was 

there to pick up J.R.P.’s bag, he took the bottle of morphine pills from the utility 

closet. 

After returning home, M.T.P. took nine tablets, and J.R.P. took five. He also 

gave seven tablets to his friend G.T., who had come to the house. The next morning, 

J.R.P. threw up and did not go to school. Instead, after speaking to her brother, she 

2No evidence at trial explained the source of the Xanax. 
7

went back to bed. Later that afternoon, M.T.P.’s best friend Z.H. came to the house 

and found M.T.P. dead in his bed. The medical examiner concluded that neither the 

morphine nor the Xanax would have been fatal on its own, but the synergistic effect 

of the two depressed M.T.P.’srespiratory system and caused his death.3

Appellant does not dispute that M.T.P. retrieved the morphine from Jennifer’s 

house or that he took some upon returning home, but she argues that the evidence is 

insufficient to prove that he did so at her direction. To argue sufficiency of the 

evidence, the State relies primarily on three lines of evidence: (1) phone records for 

Appellant and M.T.P. (2) J.R.P.’s testimony about a phone conversation about the 

morphine that she overheard between M.T.P. and a woman who she thought was her 

mother, and (3) J.R.P.’s testimony that Appellant had instructed her to delete 

incriminating text messages from M.T.P.’s phone.

The phone record evidence included reports of call logs and texts extracted 

from M.T.P.’s and Appellant’s phones. These reports showed that M.T.P. called 

Appellant at 8:18 p.m. on the night of January 15 and spoke to Appellant for about 

three minutes. He called her again at 8:45 p.m.; this call lasted only 28 seconds. One 

minute after that phone call, Appellant sent M.T.P the text instructing him not to tell 

3While the medical examiner attributed M.T.P.’s death to a synergistic effect of

morphine and alprazolam and testified that the morphine level in M.T.P.’s system was 

not considered a fatal amount, she also testified that she had no knowledge of 

M.T.P.’s tolerance level to morphine and if he had low tolerance, the nine tablets

might have been a lethal dose.
8

his aunt about the purpose of his visit. At 8:47 p.m., M.T.P. called Appellant again; 

this call lasted 4 minutes and 36 seconds. He made a 50-second call to Appellant at 

9:02 p.m., and two minutes later, Appellant texted M.T.P. to “[t]ake 1 now” and wait 

an hour and half before taking another. To that, M.T.P. responded, “Ok.”

J.R.P., who was 16 at the time of trial, reluctantly testified about the events 

leading up to M.T.P.’s death. She explained that after her fatherleft for work on the 

night of January 15, she took a Xanax that her brother gave her. M.T.P., who had 

also taken Xanax, then left the house with his friend G.T. and returned with the

morphine. She stated that it was her brother’s idea to get the morphine and that he 

“called someone about that.” That someone was a woman who sounded like her 

mother, “but [she didn’t] know for sure.”

4

 

After she, M.T.P., and G.T. took some of the morphine, M.T.P. and G.T. went 

to M.T.P.’s room to smoke marijuana. G.T. left the next morning. J.R.P. spoke to 

her brother then, and although he “just laid in bed,” she said that he seemed like his 

normal self. Because J.R.P. did not feel well, she went back to sleep. M.T.P.’s best 

friend Z.H., who became concerned when M.T.P. was not at school that day, went to 

the house in the afternoon. When he could not awaken M.T.P., he woke up J.R.P.

4

J.R.P. acknowledged that in two previous statements—one given to an

investigator with the Jack and Wise Counties District Attorney’s Office and the other 

given to an investigator with the Department of Family and Protective Services, Child

Protective Services—she had identified that person as Appellant. But at trial she 

claimed that when she had given those two statements,she was angry and looking for 

someone to blame for M.T.P.’s death.
9

and told her about M.T.P. Z.H.’s father called,5and Z.H. told him that he could not 

wake M.T.P. Z.H.’s dad went to the house, tried to revive M.T.P. by using CPR, and 

called 911. 

In the meantime, either Z.H. or J.R.P. called Appellant to tell her what was 

happening, and J.R.P. informed her mother that M.T.P. was not waking up.

6

J.R.P. 

testified that in the phone conversation, Appellant told her to get M.T.P.’s phone 

“because [Appellant] could get in trouble” and asked her to delete the texts she had 

sent to M.T.P. J.R.P. retrieved the phone from M.T.P.’s room, but she could not 

delete the texts because the phone battery was dead, so she put it on the top shelf of 

her closet. The phone was later found in a shoebox in the closet by her father.

7

 

On cross-examination,J.R.P. testified that her fatherwanted to see her mother 

convicted and that he had told her that if her testimony at trial did not match her 

5

In his testimony, Z.H. did not explain why his father called. 

6The trial testimony was contradictory about whetherit was Z.H. or J.R.P. who 

called Appellant. Z.H. denied calling her on his phone but testified that he may have 

told J.R.P. to call her. He could not remember whether he spoke to Appellant to tell

her that M.T.P. would not wake up. J.R.P. stated that she called her mother. 

Appellant testified that Z.H. called her from J.R.P.’s phone but the call was 

disconnected, so she called her daughter back. In any event, the testimony was 

consistent that J.R.P. and Appellant spoke on the phone soon after Z.H. found 

M.T.P.

7

In a line of questions about whether someone else had moved the phone to 

the shoebox, J.R.P. did not give a definite answer, stating that “[m]aybe” she had put 

it in the shoebox; “[p]robably” someone else could have put it there; she did not 

know who moved it, if it had been moved; and, “[i]t might have been moved, but 

[she] put it on the top shelf in [her] closet.”
10

previous statements to investigators, she could “wind up in juvy.”

8

 According to 

J.R.P. she also needed to make her testimony match her previous statements because 

the State had granted her immunity for a charge of tampering with evidence, the 

immunity would be revoked if she lied in her trial testimony, and it was the State who 

would decide whether her testimony was truthful.

9

 She also admitted that her halfbrother, Appellant’s son, had texted her to ask her if she wanted Appellant to go to 

prison for the rest of her life and told her that “[i]f there’s anything that we need to 

change,we need to do it now,” to which she responded, “Tell me what to say because 

I don’t know what to do.” 

Appellant testified in her own defense to contradict J.R.P.’s testimony and to 

provide an explanation for her texts to M.T.P. She agreed that she had asked J.R.P. to 

get M.T.P.’s phone, but she claimed that it was so that she could look through the 

phone to figure out what had happened. She stated that J.R.P. was mistaken about

Appellant’s having asked her to delete text messages. 

As for the phone calls and text messages, Appellant testified that M.T.P. had 

called first just to have a general conversation and that he called back later asking if he

could go to Jennifer’s house to “pick up his weed pipe that was at [her] house.” She 

acknowledged that she had allowed M.T.P. to smoke marijuana at Jennifer’s house,

8David’s version of this conversation is that he told her, “if you get on the 

stand and you—you lie, you could possibly go to TYC.” 

9But on re-direct, she stated that she had not lied in her testimony. 
11

explaining that she did so because she knew that he would use marijuana anyway, and 

she thought that he was safer doing it in her house than out on the streets. But 

because she knew that Jennifer “would not have been okay with him going there to 

pick up his weed pipe,” she texted him to not tell Jennifer the purpose of his visit. 

According to Appellant, in the next call from M.T.P., he “sounded funny,” so 

she asked if he was high, and he said no. She further testified that he called back a 

few minutes later to tell her that he did not feel well, so she told him to take some 

Advil and lie down. Appellant claimed that her text telling M.T.P. to “[t]ake 1 now”

and “another one” later was about the Advil. 

Appellant was en route from Midland the next day when J.R.P. and Z.H. called 

her to tell her about M.T.P., and she went straight to David’s house. When she 

arrived, David and J.R.P. were there along with paramedics and a sheriff’s deputy. 

She denied telling J.R.P. to hide M.T.P.’s phone or knowing where J.R.P. put it, 

testifying that “when [she] arrived home that day and [she] was told [her] son died, 

[she] never thought anything about [the phone] again.”

C. Analysis

The factfinder alone judges the evidence’s weight and credibility. See Tex. Code 

Crim. Proc. Ann. art. 38.04;Queeman, 520 S.W.3d at 622. We may not re-evaluate the

evidence’s weight and credibility and substitute our judgment for the factfinder’s. 

Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences 

are reasonable based on the evidence’s cumulative force when viewed in the light 
12

most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.

2015); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court 

conducting a sufficiency review must not engage in a ‘divide and conquer’strategy but 

must consider the cumulative force of all the evidence.”). We must presume that the 

factfinder resolved any conflicting inferences in favor of the verdict, and we must 

defer to that resolution. Murray, 457 S.W.3d at 448–49. But a jury is not permitted to 

come to conclusions based on “mere speculation or factually unsupported inferences 

or presumptions.” Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018)

(quoting Hooper v. State, 214 S.W.3d 9, 15–6 (Tex. Crim. App. 2007)).

The jury had to resolve the conflict in Appellant’s and J.R.P.’s testimony about 

whether Appellant had talked to M.T.P. about the morphine and whether Appellant 

had asked J.R.P. to delete her text messages. The jury could and apparently did find

J.R.P. credible and Appellant not credible. The jury could have believed J.R.P.’s 

testimony that on the evening of January 15, M.T.P. had a phone conversation about 

the morphine with a woman who sounded like Appellant. And because M.T.P.’s

phone records show that he spoke to his mother near the time that he went to his 

aunt’s house for the morphine, and Appellant acknowledged that she had spoken to 

him around that time, the jury could have reasonably inferred that Appellant was the 

woman with whom he had spoken about the morphine. The jury could also have 

rejected Appellant’s explanations for her text messages, believing instead J.R.P.’s 

testimony that Appellant told her to find M.T.P.’s phone and delete the texts. Having 
13

reasonably inferred that Appellant had a conversation with M.T.P. about the 

morphine, the jury could have further reasonably inferred from the evidence that the 

text regarding the dosage amount was also related to the morphine. Between the 

phone calls and the text messages indicating that Appellant gave M.T.P. instructions 

on retrieving the morphine and how much of the morphine to take, the evidence at 

trial was sufficient to establish that Appellant either told 17-year-old M.T.P. where to 

find the morphine or gave him permission to take it. And it is undisputed that he

found the morphine and took it home with him. Thus, the evidence was sufficient to 

support the jury’s finding that Appellant constructively or actually transferred a 

controlled substance to a minor. We overrule Appellant’s first issue.

II. Sufficiency of the evidence as to deadly weapon finding

In her second issue, Appellant argues that the evidence was insufficient to

support the jury’s affirmative finding that she used or exhibited a deadly weapon. 

Specifically, she arguesthat the evidence was insufficient to establish that she used the 

morphine in a manner capable of causing death or serious bodily injury. She further 

argues that the rule of lenity requires this court to set aside the deadly weapon finding.

A. Proving up a deadly weapon 

We will sustain a deadly-weapon finding if the evidence shows that (1) the 

object meets the definition of a deadly weapon; (2) the object was used or exhibited 

during the transaction on which the felony conviction was based; and (3) other people 

were put in actual danger. Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014).
14

A “deadly weapon” includes “anything that in the manner of its use or intended use is 

capable of causing death or serious bodily injury.” Tex. PenalCode Ann. § 1.07(17);

see also Prichard v. State, 533 S.W.3d 315, 320–21 (Tex. Crim. App. 2017) (noting that 

that “a ‘deadly weapon’may be ‘anything,’ and there is no limitation as to what type of

thing may be considered a deadly weapon”). “Serious bodily injury” is “bodily injury 

that creates a substantial risk of death or that causes death, serious permanent 

disfigurement, or protracted loss or impairment of the function of any bodily member 

or organ.” Tex. PenalCode Ann. § 1.07(46).

The sufficiency of the evidence supporting a deadly weapon finding depends 

on the specific testimony in the record about its manner of use. See Yon v. State, 440 

S.W.3d 828, 831–33 (Tex. App.—Tyler 2013, no pet.). “Use” can mean any

employment of the object alleged to be a deadly weapon. Coleman v. State, 145 S.W.3d 

649, 652 (Tex. Crim. App. 2004) (quoting Patterson v. State, 769 S.W.2d 938, 941 (Tex.

Crim. App. 1989).

B. Evidence of a deadly weapon

The medical examiner testified about the results of the autopsy she had 

conducted on M.T.P. First, she explained her toxicology findings. The level of 

morphine in M.T.P.’s body at the time of the autopsy was 0.115 milligrams per liter. 

A therapeutic level—what she would normally see in a patient prescribed morphine—

is 0.02 milligrams per liter. The level of Xanax in M.T.P.’s body was 0.017 milligrams 

per liter, which is within the therapeutic range for that drug. 
15

The medical examiner next explained to the jury the effects of opiates like 

morphine and benzodiazepineslike Xanax. She testified that opiates can have a toxic

effect because they “cause respiratory depression,” acting “specifically on the brain 

stem to slow down your breathing. And once your breathing slows, that’s when you 

get the buildup of fluid in the lungs. It makes it harder for you to get oxygen to the

rest of your body.” She explained that benzodiazepines have “basically the same 

mechanism of action” as opiates “where they will cause respiratory depression,” and 

the combination of benzodiazepines and opiates has potentially harmful 

consequences. “[I]nstead of having an additive effect where if you take one and you 

take the other, it’s two times, it’s more of an exponential effect. So it might be four 

times as—as depressing to the respiratory system.”

Finally, she opined that M.T.P. died from the toxic effects of the combination 

of morphine and Xanax, that she had seen no other cause for his death other than the 

effects of the controlled substancesin his system, and that, based on M.T.P.’s health

at the time, she had no reason to believe that he would have died then had he not 

taken the morphine. She further stated that in her opinion, the morphine that M.T.P.

ingested was a deadly weapon.

On cross examination, the medical examiner acknowledged that neither the 

amount of Xanax in M.T.P.’s body nor the morphine, standing alone, was at a level 
16

that is considered fatal.10 Rather, it was the combined effect of the drugs that led to 

his death. She was not asked to give her opinion on whether two morphine tablets 

would have been fatal, but it would be reasonable to infer that if she did not consider 

nine tablets to be a fatal dose, two tablets would not have been, either. 

C. Analysis 

As Appellant notes in her brief, to constitute a deadly weapon in this case, the 

morphine had to be capable of causing serious injury or death by its use or intended 

use. See Tex. Penal Code Ann. § 1.07(a)(17)(B). It is the defendant’s use that matters 

for this determination. See Rodriguez v. State, 31 S.W.3d 772, 778–79 (Tex. App.—

Austin 2000) (relying, for purposes of reviewing deadly weapon finding, on the 

defendant’s use of cocaine rather than the use of the cocaine by the person who 

ultimately ingested it), aff’d, 104 S.W.3d 87 (Tex. Crim. App. 2003). 

Appellant’sfirst argument under this issue focuses on the fact that the medical 

examiner agreed that neither theXanax nor the morphine would have been fatal on 

its own. She argues that “[m]orphine was the only substance for which [she] could

arguably be held responsible” because there is no evidence that Appellant provided

10The State asked the medical examiner on re-direct if it was “fair to say that 

somebody who has never used opiates is going to have a lower tolerance to somebody 

who uses opiates frequently” and whether that could “have had some impact with 

regards to [M.T.P.],” and “[t]hat might have been a lethal amount” for him. She 

responded that she “d[id]n’t know anything . . . of his drug history,” “but if he were 

naïve to it, then yes.” There was no evidence of M.T.P.’s prior history with opiates,

and the medical opinion that she offered as to his cause of death was that he died 

from the toxic effects of both drugs.
17

M.T.P. with Xanax and that the particular facts of this case do not support a finding 

that she intended to cause serious bodily injury or death or that she knew that the 

morphine would be combined with another substance. 

Appellant is correct that the State produced no evidence that she knew that

M.T.P. would be taking the morphine tablets after having taken Xanax. But Appellant 

“used” the morphine by transferring possession of it to her teenage son with express 

permission to take some while he was home without adult supervision. The medical 

examiner testified about the toxic effects that opiates can have on the body. Giving 

an underaged child unfettered access to and express permission to take a potentially 

deadly drug—not only without any adult supervision whatsoever but also while in the 

presence of other underage children—was sufficient evidence to support a finding 

that the manner of Appellant’s use of the morphine was capable of causing death or 

serious bodily injury. Contra id. (holding that defendant did not use cocaine as a 

deadly weapon when he prepped a small amount for his teenage daughter to use and 

watched while she ingested it). 

Appellant makes two more arguments under this issue. First, citing In re M.S., 

No. 02-11-00041-CV, 2012 WL 335864, at *3 (Tex. App.—Fort Worth Feb. 2, 2012, 

no pet.) (mem. op.), Appellant asserts the rule of lenity should apply and argues that 

“the ambiguity in whether M.T.P.’s ingestion of morphine—without the Xanax 

delivered by an unknown person other than the Appellant—would have caused his 

death, should be resolved in favor of lenity.” 
18

The rule of lenity applies “when a criminal statute is ambiguous and the intent 

of the legislature cannot be determined by employing statutory construction 

can[]ons.” Id. at *3. Under those circumstances, the rule requires that the ambiguity 

be resolved in favor of lenity. Id. But here, while Appellant arguesthat the evidence is 

ambiguous, she fails to articulate how any applicable statute is. To the extent that 

Appellant intended to argue that the statutory definition for “deadly weapon” is 

ambiguous, we disagree. While the evidence in a particular case might make it 

difficult to determine if an object is a deadly weapon under the facts of that case, the 

statute itself is clear and unambiguous. See Moore v. State, 520 S.W.3d 906, 908 (Tex. 

Crim. App. 2017) (noting the provision’s plain language). And here, the evidence was 

not ambiguous. The medical examiner clearly testified that the amount of morphine 

in M.T.P.’s body, though not fatal on its own, had in combination with the Xanax 

caused M.T.P.’s death. It is irrelevant whether Appellant’s giving the morphine to 

M.T.P. would not have led to his death if he had not also taken Xanax because 

Appellant’s giving M.T.P. morphine on a day when he had taken Xanax—the manner 

in which the morphinewas actually used in this case—was deadly. 

Second, Appellant argues in one sentence that “in this case, Appellant’s 

conduct was punished twice in the finding that she delivered morphine to a minor

resulting in his serious bodily injury or death, and, the finding that morphine was a 

deadly weapon in the manner of its use.” Construing this sentence as arguing that the 

application of both enhancements was impermissible, we disagree. A finding under 
19

Texas Health and Safety Code Section 481.141 raises the level of an offense so that a 

higher maximum sentence may be imposed, while a deadly weapon finding affects a 

defendant’s eligibility for community supervision and parole. See Tex. Code Crim. 

Proc. Ann. art. 42A.054(b); Tex. Gov’t Code Ann. § 508.145(d). This is not a 

situation in which a defendant faces two separate punishments after a conviction for 

two separate offenses covering the same conduct. See, e.g., Villanueva v. State, 227 

S.W.3d 744, 747–49 (Tex. Crim. App. 2007) (discussing the Fifth Amendment’s 

protection against double jeopardy). The two special issues affect different aspects of 

punishment and did not result in Appellant’s being punished twice for the same 

conduct. 

Because the evidence was sufficient to support the deadly weapon finding, we 

overrule Appellant’s second issue.

III. Venue challenge

In her third issue, Appellant arguesthat she was entitled to a venue change as a

matter of law because the State did not controvert her motion to change venue and 

that the trial court therefore erred by failing to move the case to Wise County.

UnderCode of Criminal Procedure Article 31.03, a defendant may move for a 

change of venue upon the trial court’s determination “[t]hat there exists in the county 

where the prosecution is commenced so great a prejudice against him that he cannot 

obtain a fair and impartial trial” or [t]hat there is a dangerous combination against him 

instigated by influential persons, by reason of which he cannot expect a fair trial.” 
20

Tex. Code Crim. Proc. Ann. art. 31.03(a). A defendant’s filing of a motion for change 

of venue, supported by affidavits, raises a fact issue for the trial court to resolve. 

McManus v. State, 591 S.W.2d 505, 516 (Tex. Crim. App. 1979), overruled on other grounds 

by Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988). But if the State does not file a 

controverting affidavit, there is no fact issue to be resolved, and the defendant is 

therefore entitled to a change of venue as a matter of law. Id.

Although “a question of a change of venue is a question of constitutional 

dimensions,” Foster v. State, 779 S.W.2d 845, 852 (Tex. Crim. App. 1989), a defendant

may waive any right she has to a venue change. McManus, 591 S.W.2d at 516 (holding 

that defendant waived right to change of venue as a matter of law by proceeding to a 

hearing on the motion without objecting that he was entitled to the change as a matter 

of law, thereby allowing the trial court to hear the merits of the issue); cf. Gutierrez v. 

State, 979 S.W.2d 659, 663 (Tex. Crim. App. 1998) (holding that the appellant waived 

his controverted motion for change of venue “when he ceased to advocate or advance 

his position that he wanted a hearing to establish his right to a change of venue as a 

matter of fact”).

Nothing in the record indicatesthat Appellant sought a hearing on her venue 

motion. The trial court did not rule on it. And the case proceeded to trial and then to 

judgment without any order addressing the venue question.

11

 Because the record 

11In a pretrial hearing, Appellant’s attorney told the trial court, in the context of 

explaining that Appellant had elected to have the jury assess punishment, “we’re not 
21

contains no indication that Appellant ever requested a hearing on her motion or 

asserted her right to a venue change as a matter of law, we hold that Appellant waived

her right to a change of venue. Accordingly, we overrule her third issue.

Conclusion

Having overruled Appellant’sthree issues, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: September 3, 2020

waiving our claim that—that we don’t—that we cannot get a fair trial from the jury in 

Jack County.” But no other discussion or mention of a venue change occurred at that 

hearing.