## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00453

- CR

___________________________

On Ap peal from the 271s t District Court

Jack County, Texas Trial Court No. 4800
Before Sudderth, C.J.; Gabriel and Wallach, JJ. Memorandum Opinion by Chief Justice Sudderth 

### C HRISTY 

### M ICHELLE 

### P R UITT 

### , App e llant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I n Janu ary 2017, seventeen

- year

- old M.T.P. died after mixing his deceased step

grandfather’s morphine tablets with Xanax. Before he went to hi s aunt ’ s house to find the morphine tablets , M.T.P. spoke on the phone to Appellant Chr isty 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 h im another text, stating, “Take 1 now then in an hour and half u can take another one.”
M.T.P. took Xanax befo re 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 control l ed substance , found that
she had used or e xhibited 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 . T he jury assessed her punishme nt at 35 years’ c onfinement and a fine of $10,000. I n 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 ve n ue change. Because
the evidence support s the jury’s findings, and because Appellant waived her right to a venue change, we affirm.3 Background 1
Seventeen

- y ea r

- old M.T.P. died on January 16, 2017 , from an overdose of morphine and alprazolam , the activ e ing r edient in Xan ax. The morp hine tablets had been prescribed t o his step

- grandfather while in hospice care

. After his step

grandf ather ’ s death , M.T.P. ’ s aunt Jennifer, who had in her ited the step

- gra ndfather ’ s house , hid the bottle of tablets i n a utility c l oset
. O n the night before he di ed , M.T.P.

went to the house, told Jenni fer that he was looking for a b ag belonging to his 14

- year

- old sister J.R.P ., and took the morphine from the close t
. Before stopping by J ennif

er ’ s house, M.T .P. sp oke to Appellant on the phone
and , soon after , received the text from her that sa id, “ Don ’ t let your Aunt Jennifer
kno w what u r t here for , ” followed by the second tex t , “ Ta ke 1 now the n in an ho ur and half u can take another o ne , ” sent 20 minutes later. M.T.P. had take n Xanax before g oing to Jennifer ’ s hous e, and when he returned home , he took the nine morphine tablets. According to the me dical examiner ’ s report, M.T.P. died the next day “ from the toxic effect s of morphine and alprazolam

. ” Appellant filed a motion to c hange the trial ’ s venue from Jac k Count y to Wi se County

. S ee Tex. Code Crim. Pro c . Ann. art. 31 .03

. Appellant did not request a hearing on the motion , and th e trial court did not rule on i t
.

1 Because Appellant ’ s first iss ue contests the sufficiency of t he evi dence to support he r convi ct ion, we save a more detaile d recitation of the facts fo r o ur dis cussion of that issue.4 D i scu ssion
I
. S ufficiency of the evidence as to guilt
In h er f irst issue, Appellant a rgu es that the evidence was in sufficient t o su pport a guilty finding

. A. Standard of review
In our evidentiary

- sufficiency review, we view all the evide nce in the l ight m ost favorable to the verdic t to determine whe ther any rati o n al factfinder could have found
the cr ime ’ s essential elements beyond a reaso nable 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). T he standard of rev iew is the sa m e for direct and circ umstantial
eviden ce cases; circu mstantial evidence is as probative as direct evidence in
establishin g guilt. Jenki

ns v. State , 493 S.W.3d 58 3, 599 (Tex. Crim. App. 2016)

. To determine whether the Stat e has met its Jack son burden to p rove a defendant ’ s g uilt beyond a rea sonable doubt, we compare the crime ’ s elements as defined by the hypothetically cor rect jury charg e to the evidence adduced at trial. See
i d. ; see also Febus v. State , 542 S.W.3d 568, 572 (T ex. Crim. Ap p. 2018) ( “ The e ssential
elements of an offense are d etermined by st ate law. ” ). Such a charge is one t hat accurately sets out the law, is authorized b y the indictment, does not unnecessarily
increase the State ’ s burden of proof or restrict the State ’ s the ories of liabi l i ty, and adequately describes the part icular offense for which the defend ant was tried. Jenkins , 493 S.W.3d at 599. The “ law as author ized by the indictment ” means the statut o ry5

elemen ts of the charged offense as modified by th e factual de tails and lega l theories contained in the charging in strument. 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 pen a l offense that has statutory alternatives for that e lement, the sufficiency of t he evidence will be measured by the e lement that was actually pleaded, a nd not any alte rnative statutory
elements. ” ).
B. Pro ving d elive ry of a controlled substance Appellant ’ s indictmen t alleged that she had knowingly delivered, by actual o r constructive t ransfer, morphine, a controlled subst ance , to M. T.P., who was younger
than 18. See Tex. Health & Safety Code A nn . § § 481.002(8), .10 2 (3)(A) , .1 2 2. “ [O] ne method of constructive transfer is f or the transferor to instruct the recipient on the
location o f t he c ontraband. If the contraba nd is already in place, the constructive

trans fer is com p lete [

when] the transferor gives the inst ruction. ” Sims v. State , 117 S.W.3d 267, 277

– 78 ( Tex. Cri m. App. 2003) . Actual transfer occurs when the recipient then ret r

i e ves the contraband. Id. at 278

. C. Relevant evi dence Appellant ’ s and her sister Jen nif er ’ s stepf ather had died at home in ho spice care in May 2015

. At the ti me of his death, t h eir stepfather had had a prescription for 30 milligram mor phin e tablets

. W he n he died , A ppellant ’ s mother told Jennifer , who
lived with her , to hide the b ottle contain ing th e remai ning m orphine tablets u ntil they

cou ld dispose of it. Jennifer put the bottle in a basket in a util ity closet and put a large6

meta l b owl over the b a sket

. T his closet also had a refrigerator where dri nks and

sna cks were kept , and it was accessibl e to anyone a t the house

. After t heir mother died suddenly in July 2015 after a stroke , Jennife r inherited he r parents ’ house , and in
late 201 6, Jennifer a l

l ow ed Appellant to move in with her

. In January 2017, Appellant

was still living with Jennifer

. Appe llant had tw o children with her ex

- husband David Pruitt

— M

. T .P. and J.R.P. A fter their 2014 divorce, David b e came m anaging cons ervator of the children

. In 2017, David , a welder, was w ork ing on a project abou t 400 miles away from home
and would typically be gone for fi ve days at a time , leaving J.R.P. i n M. T.P. ’ s care . On the evening o f January 15, 2017, the children were with David at his house un til h e left for wor k around 8 : 00 p .m. Aft er that, the children were hom e without adult supervision

. Appellant was a lso out of town, in Midl and.
After his dad left, M.T.P. took some Xanax and gave some to his sister

. 2 Then

a round 9 :00 p.m. , M .T.P. stoppe d b y Jennifer ’ s ho use and , after t e lling her that he was there to pick up J.R.P. ’ s bag, he took t he b ott le of morphine pills from the utility

c loset

. After returning home, M.T.P. took nine tablets , and J .R.P. took fiv e . He also
gave seven table ts to his f

r i end G. T. , who had come to the house. T he n ext morning, J.R .P. threw up and did not go to school. I nstead , after speaking to her brother, she

2 N o evide nce at trial explain ed the source of the Xanax

.7

went back to be d. Later that afternoon , M.T.P. ’ s best friend Z

. H. came to the house
and found M.T.P

. dead in h i s b ed. The medical examiner concluded that n e ither the

m orphine nor the Xanax would have been fatal on its own , but the syner gistic effect

o f the two depressed M.T.P. ’ s respiratory system a nd caused his death. 3 Appellant does n ot dispute tha t M.T.P. ret r i eved the morphine from Jen nifer ’ s house or t hat he took some upon returning home , but she argues th at the evide nce is
insuff icient to prove that he did so at her d irection

. To argue sufficiency of the evidence, the Stat e re lie s pr imarily on three lines o f evidence: (1) phone reco rds for Appellant and M.T.P. (2) J.R.P. ’ s testimony about a pho ne conversation about the

m orphine that she overheard betw ee n M.T.P. and a woman who she thought was her mother, and (3) J.R. P. ’ s testi mony that Appellant had instru c t ed her to delete
incrimina ting text messages from M.T .P

. ’ s phone.
The phone record evid ence included reports of call logs a nd texts extracted
from M.T.P

. ’ s and Appe llant ’ s phone s . These reports showed that M.T.P. called Appel lant at 8:18 p.m. on the n i

g h t of January 15 and spoke to Appe llant for about
three minutes. He called her aga in at 8:45 p.m. ; this call laste d only 28 seco nds. One minute after that phone call, Appellant sen t M.T.P the text instructi ng him not to tell

3 While the medical examiner attributed M.T.P. ’s death to a synergistic effect of morphin e and alpra z o lam an d testified that the morphine level in M.T.P. ’s syst em was not c onsidered a fatal amount, she also testified that she had no k nowledge of M.T.P. ’s tol erance level to morphine and if he had low tolerance , the nin e tablets
m ight ha ve been a leth al dos e.8

his aunt about th e purpose o f his visit. At 8:47 p.m., M.T.P. called Appellant again;
this c all lasted 4 minutes and 36 seconds. He made a 50

- second call to Appellant at 9:02 p.m. , and two minutes l ater, Appellant texted M. T.P. t o “ [t]ake 1 now ” and wait
an ho ur and half before tak i n g another. To that, M.T.P. responded , “ Ok

. ” J.R.P. , who was 16 at the time of trial , rel uctantly tes tified about the events leading up to M.T.P

. ’ s death. She expla i ned that after her father left for work on the night of January 15 , she took a Xanax th a t her brother gav e her

. M. T.P. , who had also taken Xanax, then left the house with his fri end G. T. and ret urned with the morphine. She s tated that it was h er brother ’ s idea to get the morphine and that he

“ called someone about that

. ” That someone w as a w oman who sounded like her

mot her, “ but [sh e di dn ’ t ] know for sure. ” 4
After s he, M.T.P. , a nd G.T. took some of the morphine , M.T.P

. and G.T. went

to M.T.P. ’ s room to smoke marij uana. G.T. left the next morning. J.R.P. s p oke to
her brother the n , an d a l t houg h 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 bes t friend Z.H

. , who became concerned when M.T.P. w as not at school that day , went to the hous e in the aft ern o o n. When he could not aw aken M.T.P., he wok e up J.R.P.

4 J.R .P. acknowledged that in two prev ious statements

— one given to an investigator with the Jack and Wise Counties District Attorne y ’s Office a nd the other given to an investigator w it h the Department of Family and P rotective S ervices , Child Protec tive S ervices

— she ha d identified that pers on as Appellant

. B ut a t tria l she claimed that when she had given those two statements , she was angry and looking for someone to b l ame for M.T.P. ’ s d eath

.9

and tol d her about M.T.P. Z.H. ’ s father called, 5 and Z.H. told him that he could not
wake M.T.P. Z.H. ’ s dad went to the house, tried to rev ive M.T.P . by using CPR , and
called 911.
In th e meantime , either Z.H. or J.R.P. called Appellant to tell her what was happ eni ng , and J.R.P. in formed her mother that M.T.P. was not waking up

. 6 J.R.P.
testified that in the phone conversatio n , Appel lant told her to get M.T.P

. ’ s phone

“ beca us e [Appellant ] could ge t in trouble ” an d asked her to delete the texts she had
sent to M. T.P. J.R.P. re tr ieved the phon e fr om M.T.P. ’ s room , but she could not
delete the texts because the pho ne battery w as dead, so sh e pu t it on the t op shelf of
her closet. T he phone was later f ound in a shoebox in the closet by her father

. 7
On cross

- examination, J. R.P. testified that her fath er want ed to see he r mother
convi cte d and that he had told her that if her tes timony at trial did not m atch her

5 In his te stimony, Z

. H. did not e xp lain wh y his f ather c alled

.
6 The trial testimony was contradictory about whether it was Z.H. or J.R.P. who called Appellant

. Z.H. denied calling her on his phone but testified that he m ay h ave told J

. R. P

. to call her

. He coul d not remember whether he s p o ke t o Ap pellant to tell h er that M.T.P. would not wake up

. J.R.P. stated that she called her mother. Appellant testified that Z.H. called her fro m J.R. P

. ’ s phone but the call was disconnected, so she c alled her daughter bac k

. In any event , the testi mo ny was consistent tha t J.R. P. and Appellant spoke on the phone soon after Z.H. found M.T.P.

7 In a line of questi ons about whether someone else h a d moved the pho ne to the shoebox, J.R.P. did not gi ve a definite a n swe r, sta ting that “ [m] aybe ” she had put i t in the s hoeb ox ; “ [p] r ob ably ” someone else could have put it there ; she did not know who moved it , if it had been mov ed ; and , “ [i] t might have been moved, but [she] put it on the top shelf in [he r] closet. ”10

previous statement s to investigator s , s h e could “ wind up in juvy

. ” 8 According to J.R.P. s he also nee ded t o make he r testimony match her previous s tatement s bec ause the State had granted her immunity fo r a char ge of tamper

in g with evidence, the
immunit y would be revoked if she lied in her tr ial t estimony, a nd it was the State who
would decide whethe r her testimony w as truthful

. 9 S he also admitted that her half

bro ther, Appellant ’ s son , had text ed her to ask her if she wanted Appellant to go to prison for the rest of her life an d to ld her th at “ [ 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

. ”
A ppellant testi fied in her own defense to contradic t J.R.P. ’ s testimon y an d to provide an explanation for h e r texts to M .T.P. She agreed t hat she had asked J. R.P. to get M.T.P. ’ s phone , but she claimed that it was so that sh e co uld look through th e
p hone to figure out what had happened. She stat ed that J

. R

. P

. wa s mistaken about Appe llant ’ s having asked her t o delete tex t m e ssages . As fo r the phone calls and text messages, Appellant testified t ha t M.T.P. had
called first just to have a general c onv ersation and that he called back later asking if he could go to Jenni fe r ’ s house to “ pick up hi s weed pipe th at w as at [ her] house

. ” She
acknow ledged that she had allowed M. T.P. to smoke m a rijuana at Jennifer ’ s house ,

8 Davi d ’ s version of this conversation is tha t h e told he r, “ if you get on th e st and and you

— you lie, you could po ssibly go to TYC. ”

9 But o n re

- direct, she stated that she h ad not lied in her testimony.11

explaining that she did so bec ause she knew t hat he would use marijuana anyw ay, and she thought t h a t he was safer doing it in he r house th an out o n t h e streets
. But
because she knew that Jennifer “ would not have been ok ay with him going there to pick up his weed pipe , ” she texted him to not tell Jennifer the purpose of his visit

. Acc ording to Appellant, i n t he nex t c all fr om M.T.P. , he “ sounded f u n ny, ” so she asked if he was high , and he said no. She further testified that h e call ed back a
few minutes lat er to tell her that he did not feel well, s o she told him to take some
Ad vil and lie down. Appellan t claimed t hat h er text tel ling M.T.P. to “ [ t ] ake 1 now ”
and “ an ot her one ” later was about the Advil

. Appellant was en route from Midland t he next day when J.R.P. a nd Z.H. called
her to tell her about M.T.P. , and she went straight to David ’ s house. When she

a rrive d, David an d J. R.P. were there al o n g with pa ramedics and a sheriff ’ s deputy. She denied telling J .R

. P. t o hide M.T.P. ’ s phone o r knowing where J.R.P. p ut it ,
t es tifying that “ when [she ] arrived h ome tha t day and [she] was to ld [her] son died, [ she ] never thought a nything about [the p hone ] again

. ”
C. Analysis
T he factfinder alone judges the e vidence ’ s weight and credi bility. See Tex. Code
C rim. Pr oc. Ann. art. 38.04; Queeman , 520 S.W.3d at 622. We may not re

- evaluate the
evi d ence ’ s weight and credibility and substitute our judgment for t h e factfinder ’ s. Queeman , 520 S.W.3d at 622. Instead, we determine whether the necessary inferences

are reason able bas ed on the evidence ’ s cumulative f orce when viewed in the light12

most f avo r able to the verdic t. Murray v. State , 457 S.W.3d 446, 448 (Te x . Crim. App. 2015); see Villa v. State , 514 S.W.3d 227, 232 (Tex. Crim. App. 2017 ) ( “ The court conducting a suff

iciency revie w must not engage in a ‘ divi de and conquer ’ strategy but

must co nsi d er the cumulative force of all the evidence. ” ). We must presu m e that the factfinder resolved any conflicting inferences in favor of the verdict , and we must
defer to t hat res olution. Mur ray , 457 S.W.3d at 448

– 49. But a jury is not permitt ed to

come to c onclusions based on “mere speculation or factually unsupported i nferences or presumptions.” Braughton v. State , 569 S.W.3d 592, 608 (Tex. Crim. App. 2018) (quoting Hooper v. State , 2 14 S. W.3d 9, 1 5

– 6 (Tex. Crim. App . 2007) ). The jury had to resolve th e co nflict in App ellant ’ s and J.R.P. ’ s testimony about whether App e l

lant had talked to M.T.P. abou t the morphine and whether Appellant
had asked J.R.P. to d elete her text messages

. The jury c oul d and apparently did find J.R.P. credible and Appellant not cred ible

. The ju ry could have believe d J.R.P. ’ s testimony that on t h e evening of January 15, M.T.P. had a phone conve rs ation about
the m orphine with a woman who s ounded like Appellan t. And b e cause M. T .P. ’ s phon e records show that he spoke to his mother near the time th at h e went to his

aunt ’ s house for the m orphine , and A ppellant acknowledged that she had spo ke n to him around th at time , the jury could have reasonably inferred that Appellant wa s the

woman with whom h e had s p o k e n abo ut the morp hi ne . The jury could also have rejected Appellant ’ s explanati ons for her text m e s sages , believ ing i nstead J.R.P. ’ s testimony that App ellant told her to find M.T.P. ’ s phone and delete the text s . Having13

rea sonably infer red t hat App ell ant had a conversation with M.T.P. about the

mor phine , the jury could have furthe r reasonably infer red f rom the evidence that the

text regarding the dosage amount was also related to the morph ine. B etween t he phone calls and th e text messages indicatin g t hat Appellant gave M.T.P. ins tructions

on retrieving the mo rph ine and how much of the morphine to take , t h e evidence at
trial wa s sufficient to estab lish that Appellant either told 17

- ye ar

- o ld M.T.P. where to
f ind the morphine o r gave him perm ission to tak e it . A nd it is undisputed that he
fou nd the morphine and took it home with him

. Thus, the evidence w a s sufficient to

s upport the jury ’ s findin g that Appellant constructively or actually transferred a

co ntrol led substance to a minor. We overrule Appe lla n t ’ s first issue.
II
. Sufficiency o f the evidence as to d ea dly weapon finding
In her second issue, App e l lant argues that the evidence was in sufficient to
sup port t he jury ’ s affirmative finding that she used or exhibited a deadly w eapon
. S pecifically, s he argues that t he evid ence w as in suf ficient to establish that she used the

m orphine in a ma nner capable o f caus ing death or serious bodi ly injury

. She further
argues that the r

ule of l enity requires th is court to set a side the de adly weapon fin ding

. A. Prov in g up a deadly weapon
We will sustain a deadly

- weapon finding if the eviden ce shows that (1) t he obj e c t meets the def

inition of a deadly weapon; (2) the object was used or exhibited during the tra nsaction on which the felony c onviction was b ased ; and (3) other people were put i n actual danger. Brister v. State , 449 S.W.3d 490, 4 94 (Tex. Cri m. App. 2014)

.14

A “ d ead ly weapon ” includes “ anything that in the ma n ner of its use or intended use is
capa ble of causin g death or serious b odily injury

. ” Tex . Pen al C ode Ann. § 1.07 (17) ;

see al so Prichard v. State , 533 S.W.3d 315, 320

– 21 (Tex. Crim. App. 2017) ( noting t hat
that “ a ‘ deadly weapon ’ may be ‘ anythi ng, ’ and th ere is no limitation as to what type of thing may be considered a deadl y weapon ” )

. “ Se riou s bodily injury ” is “ bodily injur y that creates a substan tial risk of dea th or that ca uses death, serious perm a n ent disfi gurem ent, or protracted loss or impairment o f the function of any bodily member

or organ. ” Tex . Pen al C ode Ann. § 1.07 (46).
The suf f ici ency of the evid ence sup porting a deadly weapon f in d ing depends on the specific testi mony in the recor d about i ts manner of use. See Yon v. State , 440 S.W.3d 828, 831

– 33 (Tex. App.

— Tyl er 2013, no pet.)

. “ U se ” can mean any employment of the object all eged to be a dea dly weapon
. Coleman v. State , 145 S. W. 3d 649, 652 (Tex. Crim. App. 2004) (qu oting Patters on v. S t ate , 769 S.W.2 d 93 8 , 941 ( T ex. Crim. App. 1989)

. B. Evidence of a deadly weapon
The me dical examiner testifi ed about the res ults of the autops y she had
conduc ted on M.T.P

. First , she explained her toxicology findings. T he level of

mo rphine in M.T .P. ’ s b o dy at the time of the autop sy was 0.115 m i lligrams per l iter

. A therapeutic level

—

what she would nor mally see in a patient prescri bed morphine

— is 0. 0 2 m illigr ams per liter

. The level of Xanax in M.T.P. ’ s body wa s 0 .017 millig rams per li ter , whic h is wit h in the therapeutic range for that drug.15

The medical examiner next explaine d to the j ury the effects of opiat es like morphine and benzod iazepine s like Xanax. S he t estified that opia tes can have a toxic
effect becau se they “ ca use respi ra to ry depression , ” acti ng “ specific ally on the brain stem to slow down your breathing. And onc e your breathing slows, that ’ s whe n you get the bu ildu p of fl uid in the lungs. It ma kes it harder for you to get oxygen to the rest of your body

. ” She explained that benzodiaz e pine s have “ basica lly the same
mechanism of action ” as opiates “ whe re they will cause respiratory dep ression , ” and
th e co mbinati on of benzodiazepine s an d op iates has potentia lly ha rmful
conseque nces . “ [I] ns tead of havin g an additive effect where if you t a ke one and you
tak e the other, it ’ s two times, it ’ s more of an exponential effect. So it might be four
ti mes as
— as d epressing to the respira tory system. ” Finally, she opi ned that M.T.P. died from the toxic effects of the combination
of morphine and Xa n ax , that she had s een no other caus e fo r his de ath other tha n the
effects of th e controlled subs tances in hi s system , and tha t, base d on M.T.P. ’ s h ea lth at the time, she had no reason to believe that he would have died then had he not taken the morphine

. She further stated th at i n h er op inion , t he morphine that M.T.P.
in gested was a deadly weapon

. On cr oss exa mina t ion, the medi cal examiner acknowledge d that neither the

amo unt of Xanax in M.T.P. ’ s body nor the morphine, standing alone, w as at a level16

tha t is co nsider ed fat al. 10 Rather, it was the c ombined effec t of the drugs that led to
his death. She was not asked t o give h er opinion on whether two morphine tablets
would have been fatal , but it would be reasonable to inf er that if she did not co nsid er

n i ne tablets to be a fatal dose, tw o tablets would not have be en, eithe r . C. A nalysis
As A ppellant notes in he r brief , to constitu te a deadly weapo n in this case , the morphine had to be capable of causing serious injury or death by its use or int ende d

us e . See Tex. Penal Code An n. § 1 .0 7(a)(17)( B). It is the def endant ’s use that matters for this determination

. See Rodriguez v. Sta te , 31 S.W.3d 772, 77 8

– 79 (Tex. App.

— Austin 2000) ( relying , for purposes of reviewing deadly weapon finding, on the
defe ndan t ’ s use of cocaine rathe r than the use of the cocaine by the per son wh o ultimately ingested it ) , aff

’ d , 104 S.W.3d 87 (Tex. Crim. Ap p . 2003)

. Appellant ’s first argument under this issue focuses on the fact that th e medical examiner agreed that neither th e Xanax nor the mor phine would ha v e b een fatal on
i ts own. S he argues that “[m] orphine was the only substance for which [she] could arguably be held responsible ” because there is no eviden ce that Appellant provided

10 The S ta te asked the medical exam iner on re

- direct if it was “ fair to say that somebody who has ne ve r used opiates is goi n g to have a lower tolerance to somebody who uses opiates frequently ” and whether that could “have had some imp act with re gards to [M.T.P.], ” and “[t]hat m ight have bee n a lethal amount ” fo r him. She responded that she “d[id ] n ’t kno w anythin g . . . of his drug history, ” “but if he were naïve to it, then yes. ” T here was no evidence of M.T.P. ’ s prior history with opia te s , an d the medical o pinion that she offered as to his cause of death was that he died from the toxic effects of both dr ugs .17

M.T.P. with Xanax and that the particula r facts of this cas e do not suppo r t a finding
that she intend ed to cause serious bodily injury or death or that she knew that the

mo rphine would be combined with another substance

. Appe llant is correct that the State produced no evidence that she knew tha t M.T.P. would be t aki ng the m orph ine tablets aft er having taken Xanax. But Appellant “used” the morphine by transferri ng possession of it to her teenage son with express permission to take some while he was hom e without adult supervision. The medical

ex a miner testified ab out the tox ic e ffects that opi ates can have on the body. Giving

an under age d child unfettered access to and e xpress permission to take a potentially deadly drug

— not only without any adult supe rvision whatsoever but also while in the
pre s ence of other unde r ag e children

— was s ufficien t e vidence to support a finding
that the manner of Appellant’s use of th e morphine was capable of causing death or serious bodily injury

. Contra id. ( holding that de fendant did not use cocaine as a deadly weap o n when he prepped a s mall amount for his teenage d aughter to use and
watched wh ile she ingested it)

. Appellant make s two more argum ents 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, 2 012, no pet.) (mem . o p.), Appellant a sserts the rule of lenity should apply and argues that
“the ambiguity in whether M.T.P. ’ s ingest ion of morphine

— without the Xanax delivered by an unknown person other than the Appellant

— would have caused his death, sho u

ld be resolved in fav or of lenity .”18

The rule of lenity applies “ when a criminal statute is amb iguous and the i ntent of the legislature cannot be determined by employing statutory construction

ca n [] ons . ” Id. at *3

. Under those circumstances , the rule r equ ires that the amb iguity
be re solved in favor of lenity. Id. But here, while Appel lant argue s that the evidence is
ambi guous , she fail s to articulate how any applicable statute is. T o the extent that Appellant intended to argue tha t the statutory def i nit ion for “deadly w eapon” is

am biguous, we disagree. While the evidence in a particu lar case might make it
difficult to determ ine if an object is a deadly weapon under the facts of that case, the statute itself is clear and unambiguou s. See Moore v. St a te , 520 S.W.3d 906, 908 (Tex.
Cr im. App. 2017) (noting the provision’s plain language) . And here, the evidence was not ambiguou s. The medical examin er clearly testified that the amount of morphine in M.T.P.’s body , though not fatal o n its own , had in co m bin ation with the Xa nax caused M .T.P.’s death. It is irrelevant whether Appellant ’s g iving the morphine to
M.T.P. would not hav e led to his death if he had not also taken Xanax because Appellant ’s giving M.T.P. morphine on a day wh en he had taken X anax

— t h e m anner in which th e morphin e was 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

res ulting in hi s serious b o dil y injury or death , and, th e finding that morphine was a deadly weapon in the man ner of its use .” Construing t his sentence as arguing that the application of both enhancements was impermissible, we disagree. A findi ng under19

Tex as Health and Sa fety Cod e Section 481.141 r ai ses the level of an offense so that a higher maximu m sentence may be imposed , while a deadly weapon finding affects a defendant’s eligibility for community supervision and parole. See Tex. Code Crim

. Pro c . Ann. art. 42A.054(b ) ; Tex. G o v ’ t Code Ann. § 50 8. 145 (d). This is not a
situation in which a defenda nt faces two separate punishments after a c onviction for two separate offenses covering the same conduct. See, e.g. , Villanueva v. Sta te , 227
S.W.3d 744, 747

– 49 (Tex. Crim. Ap p. 2007) (discussing the Fi ft h Amendment’s protection against double jeopardy). The two special issues affect different as pects of punishment and did not result in Appellant’s being punished twice for the same
cond uct.
Because the evidence was sufficien t to sup p ort the deadly wea po n finding, we overrule Appellant’s second issue.
I II
. V en ue challenge
In her third issue, Appe llant argue s that she was entitled to a venue change as a

ma tter of law because the S tate did not controve rt h er motion to change ven ue and

t h at the tri al cour t t herefore erred by f ail ing t o move the case to Wise County

. Under Code of Criminal Pr ocedure Ar ticle 31.03 , a defendant may move for a change of venue upon the tri al court ’ s determination “ [t] hat there exists in t he county where the pro s ecu tion is commen c ed s o gr eat a pr eju di ce against him that he cannot

o btain a fair a nd impartial trial ” or [ t] ha t there is a dangerous combination against him instigated by influ e nti al persons, by reason of which he cann ot expect a fai r trial. ”20

T ex. Code Cri m. Pro c . Ann. a rt . 3 1.03 (a)

. A def en dan t ’ s filing of a m otion for change of venue, supported by affidavits, rai ses a fact issue for the trial court to resolve.
McManus v. State , 591 S. W.2 d 505, 516 (Tex. Crim. A pp. 1 979), overrule d on other g rounds
b y Reed v . State , 74 4 S.W.2d 112 (Te x. C ri m . App. 1988)

. But if th e S t a te does not file a controverting affidavit , t here is no fact issue to be resolved, and the defendant is
therefore entitled to a change of venue a s a m a tter of law. Id.
Alt hou gh “ a qu e stion of a c hange o f venue is a questio n of co nstitutional
dimensi ons , ” Foster v. State , 779 S.W.2d 845, 852 (Tex . C rim. App. 1 989) , a defen d ant
may waive any right she has to a venue change

. McManus , 591 S.W.2d at 51 6 (h olding
that defendant wai ved rig h t to change o f venu e as a m atter of law by pr oceed ing to a hearing on t he motion without objecting that he was entitl ed to the c ha nge a s a matter of l a w , thereby allow ing the tri al cour t to hear the m erits of the issue ) ; cf

. Gutierrez v.
State , 979 S.W.2d 6 59, 663 (Tex. Crim

. App . 1 998) (holding t hat the appellant waived
his co ntroverted motion for change of venue “ when he cea sed t o advoc ate or advance
h is position that he wanted a heari ng to establish his right to a change of venue as a
matter of f

act ” ).
N o thing in the recor d indicates that Appellant so ught a h earing on her v enue motion. The trial court did not rule on it. And the case proceeded to tria l and then to judg ment without any order addressing th e venue question

. 11 Be cause t he record

11 I n a pretri al h e aring , Appell a nt ’ s attorne y told the trial court, in the con text of
e xplaini ng that Appellant had elected to have the ju ry assess punishment, “ we ’ re not21

con tains no indication that Ap p e llant e ver requested a hearin g on her motion or

as serted her right to a venue cha nge as a m atter of law , we hold that Appellant waived
h e r right to a change of venue

. Accordingly, w e over r ule her third issu e. Conclusion Having ove rrul e d Appellant ’ s thre e issues, we affirm the trial c ourt ’ s ju dgment

.

/s/ Bonnie Sudderth Bon nie Sudderth C hief Justic e Do Not Publish Tex . R. App. P. 47.2(b)
Deliv ered : September 3 , 2020

waiving our claim that

— that w e d on ’ t

— that we cannot get a fair trial from the jury in Jack County

. ” Bu t n o other di sc ussion or mention of a venue change occur red at that he aring.