P.D.R. # 

C.O.A. NO. 11-12-00319 

 TO THE 

 COURT OF CRIMINAL APPEALS 

 OF TEXAS 

 

 KEVIN ROYCE PEEK, 

 

 Appellant/Petitioner 

 VS. 

 THE STATE OF TEXAS, 

 

 Appellee 

 PETITION FOR DISCRETIONARY REVIEW 

 

CONNIE J. KELLEY 

Attorney for Appellant/Petitioner 

1108 Lavaca #110-221 

Austin, Texas 78701 

State Bar Number 11199600 

(512) 445-4504 

(512) 478-2318 (fax) 

warrentucker@grandecom.net

PD-0600-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/17/2015 4:50:21 PM

Accepted 6/19/2015 12:23:06 PM

ABEL ACOSTA

CLERK
i

IDENTITY OF JUDGE, PARTIES AND 

COUNSEL PURSUANT TO Rule 68.4(a) 

TEXAS RULES OF APPELLATE PROCEDURE 

Party and Appellee’s Counsel: Michael Murray 

 Brown County District Attorney 

 200 S. Broadway 

 Brownwood, TX 76801 

 

State’s Trial Attorney: Michael Murray 

 Brown County District Attorney 

 200 S. Broadway 

 Brownwood, TX 76801 

 

Party/Defendant: Kevin Royce Peek 

 Texas Department of 

 Criminal Justice – 

 Institutional Division 

Defendant’s Trial Attorney: Patrick Howard 

 Attorney at Law 

 P.O. Box 74 

 Bangs, TX 76832 

Appellant’s Attorney: Connie J. Kelley 

 Attorney at Law 

 1108 Lavaca #110-221 

 Austin, Texas 78701 

The Honorable Frank Griffin presided at trial.
ii

TABLE OF CONTENTS 

 Page 

Identity of Judges, Parties and Counsel ...................................................................... i 

Index of Authorities .................................................................................................. iv 

Statement Regarding Oral Argument ........................................................................ 1 

Statement of the Case ................................................................................................. 1 

Statement of Procedural History ................................................................................ 1 

Ground for Review ..................................................................................................... 2 

GROUND FOR REVIEW NO. ONE 

IS A DEFENDANT ENTITLED TO HAVE A RESULT-OFCONDUCT DEFINITION OF “WITH INTENT” INCLUDED IN 

THE JURY CHARGE WHENEVER THE CHARGE ALLOWS FOR 

CONVICTION AS A PARTY UNDER THE THEORY THAT, 

ACTING WITH INTENT TO PROMOTE OR ASSIST 

COMMISSION OF THE OFFENSE, THE DEFENDANT AIDED 

THE PRIMARY ACTORS TO COMMIT THE OFFENSE, WHERE 

THERE WAS EVIDENCE THAT THE AID PROVIDED WAS 

ESSENTIAL TO COMMISSION? 

Argument ............................................................................................................. 2 - 5 
iii

Prayer for Relief ........................................................................................................ 5 

TABLE OF CONTENTS (cont.) 

 Page 

Certificate of Service ................................................................................................. 5 

Certificate of Compliance .......................................................................................... 6 

Opinion of the Court of Appeals .................................................................. Appendix 
iv

INDEX OF AUTHORITIES 

 Page 

Cases: 

Flanagan v. State, 675 S.W.2d 734 (Tex. Crim. App. 1982) ................................. 3, 4 

In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013) ......................... 4 

Nava v, State, 415 S.W.3d 289 (Tex. Crim. App. 2013) ........................................... 3 

Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009) .................................... 4 

Statutes and Rules: 

Health & Safety Code, 

 §481.112 .......................................................................................................... 4 

Penal Code, 

 §6.03 ................................................................................................................ 3 

 §7.02 ............................................................................................................ 3, 4 

 §15.01 .............................................................................................................. 4 

Texas Rules of Appellate Procedure, 

 Rule 66.3(b) ..................................................................................................... 3

 
1

STATEMENT REGARDING ORAL ARGUMENT 

 The issues raised herein can be adequately addressed in briefs from the 

parties. 

 STATEMENT OF THE CASE 

 On September 7, 2012, after a plea of not guilty, Appellant, Kevin Royce 

Peek, was found guilty by a jury in the 35th Judicial District Court of Brown 

County, Texas, of possession of a controlled substance, methamphetamine, in 

amount of four grams or more but less than 200 grams with the intent to deliver. 

(C.R. at 97-99). He was sentenced by the jury to life in the institutional division of 

the Texas Department of Criminal Justice on September 7, 2012. (C.R. at 97-99). 

A motion for new trial was filed by trial counsel on September 18, 2012. (C.R. at 

101-103). The motion was denied on October 15, 2012. (C.R. at 109). Notice of 

Appeal was filed by trial counsel on October 16, 2012. (C.R. at 110). Trial 

counsel served as appellate counsel until allowed by this Court to withdraw as 

attorney of record. (Suppl. Rec.). Connie J. Kelley was subsequently appointed to 

represent Appellant on appeal. (Suppl. Rec.). 

 STATEMENT OF PROCEDURAL HISTORY 

 The opinion of the Court of Appeals was handed down on April 16, 2015. 

No motion for rehearing was filed. 
2

GROUND FOR REVIEW NO. ONE 

IS A DEFENDANT ENTITLED TO HAVE A RESULT-OFCONDUCT DEFINITION OF “WITH INTENT” INCLUDED IN 

THE JURY CHARGE WHENEVER THE CHARGE ALLOWS FOR 

CONVICTION AS A PARTY UNDER THE THEORY THAT, 

ACTING WITH INTENT TO PROMOTE OR ASSIST 

COMMISSION OF THE OFFENSE, THE DEFENDANT AIDED 

THE PRIMARY ACTORS TO COMMIT THE OFFENSE, WHERE 

THERE WAS EVIDENCE THAT THE AID PROVIDED WAS 

ESSENTIAL TO COMMISSION? 

ARGUMENT 

GROUND FOR REVIEW NO. ONE 

IS A DEFENDANT ENTITLED TO HAVE A RESULT-OFCONDUCT DEFINITION OF “WITH INTENT” INCLUDED IN 

THE JURY CHARGE WHENEVER THE CHARGE ALLOWS FOR 

CONVICTION AS A PARTY UNDER THE THEORY THAT, 

ACTING WITH INTENT TO PROMOTE OR ASSIST 

COMMISSION OF THE OFFENSE, THE DEFENDANT AIDED 
3

THE PRIMARY ACTORS TO COMMIT THE OFFENSE, WHERE 

THERE WAS EVIDENCE THAT THE AID PROVIDED WAS 

ESSENTIAL TO COMMISSION? 

 This petition for discretionary review should be granted because the 

Court of Appeals has decided an important question of state law that has not 

been but should be, settled by this Court. See T.R.A.P. Rule 66.3(b). 

 In Nava v. State, this Court held that the words “acting with intent to 

promote or assist the commission of the offense” in Penal Code §7.02(a)(2) 

“clearly mean, at a minimum, that a defendant must act intentionally with 

respect to the result elements of a result-oriented offense.” Nava v. State, 

415 S.W.3d 289, 298-299 (Tex. Crim. App. 2013). Can those words also 

mean that irrespective of the offense involved, a defendant who aids primary 

actors in a way that is essential to the commission of the offense, and does 

so with the intent to promote or assist the commission of the offense, is 

entitled to a result-of-conduct definition of “with intent” in the jury charge? 

See P.C. §6.03(a). It cannot be said that it was not the “conscious objective 

or desire” of such a defendant to “cause the result” of his conduct, which 

was that the offense was actually committed by the primary actors due to the 

aid the defendant provided. See Id. 
4

 In Nava this Court discussed its holding in Flanagan v. State which 

construed language in the criminal attempt statute that Nava recognized as 

being similar to that of §7.02(a)(2). Nava v. State, 415 S.W.3d at 299, f.n. 

#22, Flanagan v. State, 675 S.W.2d 734, 740-741 (Tex. Crim. App. 1982) 

and P.C. §15.01. Penal Code §15.01(a) requires that a person act “with 

specific intent to commit an offense.” Id. Flanagan held that the statute 

required the actor to possess intent with respect to the result even if the 

object crime did not itself require intent with respect to the result. Id. 

Similar reasoning applies to the issue of whether a defendant such as 

Appellant, who allegedly supplied aid essential to the commission of the 

charged offense with intent to promote or assist the commission of the 

offense, is entitled to a result-of-conduct definition of “with intent” in the 

jury charge. See P.C. §7.02(a)(2). 

 A jury charge must instruct the jury on the statutory definitions of 

terms that affect the meaning of an element of the offense. Villarreal v. 

State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009) Party liability is as 

much an element of the offense as the enumerated elements prescribed in a 

statute that defines a particular crime. In re State ex rel. Weeks, 381 S.W.3d 

117, 124 (Tex. Crim. App. 2013). Given that, as the Court of Appeals points 
5

out, P.C. §7.02(a)(2) has its own culpable mental state of “with intent”, it is 

irrelevant whether Health & Safety Code, §481.112 is a conduct-oriented or 

result-oriented crime when determining whether a result-of-conduct 

definition of “with intent” should be included in the jury charge. The Court 

of Appeals erred in holding that Appellant was not entitled to a result-ofconduct definition in the charge. 

PRAYER FOR RELIEF 

 WHEREFORE, PREMISES CONSIDERED, Appellant requests that this 

Court grant this petition for discretionary review and reverse the judgment of the 

Court of Appeals. 

 Respectfully submitted, 

/s/ Connie J. Kelley 

Connie J. Kelley 

Attorney for Appellant 

1108 Lavaca, #110-221 

Austin, Texas 78701 

(512)445-4504 

(512)478-2318 (fax) 

warrentucker@grandecom.net 

State Bar No. 11199600 

 CERTIFICATE OF SERVICE 

This is to certify that a true and correct copy of the foregoing was served on 
6

Michael Murray, District Attorney, at 200 S. Broadway, Brownwood, Texas 76801 

by regular mail on this 17th day of June, 2015. 

 

 /s/ Connie J. Kelley 

Connie J. Kelley 
7

CERTIFICATE OF COMPLIANCE 

 This is to certify that the foregoing document is in 14 point font, with the 

exception of footnotes, which are in 12 point font. The word count of the 

foregoing document is 858 words, which is in compliance with T.R.A.P. Rule 9.4. 

 /s/ Connie J. Kelley 

 Connie J. Kelley
 APPENDIX 

 OPINION OF THE COURT OF APPEALS 
Opinion filed April 16, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-12-00319-CR

__________

KEVIN ROYCE PEEK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR21821 

O P I N I O N

The jury convicted Kevin Royce Peek of possession of four grams or more 

but less than 200 grams of methamphetamine with the intent to deliver in a drugfree zone. Appellant pleaded true to two enhancement allegations. The jury found 

both enhancement allegations to be true, and it assessed Appellant’s punishment at 

confinement for life in the Institutional Division of the Texas Department of 

Criminal Justice. Appellant challenges his conviction in five issues. We affirm.
2

Background Facts

Appellant does not challenge the sufficiency of the evidence to support his 

conviction for possession of four grams or more but less than 200 grams of 

methamphetamine with intent to deliver. He does challenge the sufficiency of the 

evidence to establish that he committed the offense in a drug-free zone. We will 

briefly summarize the evidence at trial to provide context for Appellant’s issues on 

appeal.

On November 9, 2011, Detective Shawn Dibrell and Officer Stephanie Hale 

of the Early Police Department were working drug interdiction in an unmarked 

police vehicle. At about 3:15 p.m., they observed a vehicle that had an expired 

registration. The officers followed the vehicle. Detective Dibrell activated his 

lights to stop the driver of the vehicle. The officers saw three occupants in the 

vehicle. Officer Dibrell observed the front-seat passenger moving from side to 

side in the vehicle. Officer Dibrell believed that the passenger might be grabbing a 

weapon or hiding something. Eventually, the driver pulled the vehicle to the side 

of the road and stopped. Detective Dibrell called for backup. Chief David Mercer 

and Officer Amanda Williams arrived at the scene.

The officers cautiously approached the vehicle and contacted the occupants. 

Detective Dibrell turned on his audio recorder. Appellant was in the driver’s seat; 

Appellant’s brother, James Kirby Peek, was in the front passenger’s seat; and 

Hector Gonzales was in the backseat behind Kirby. Appellant reached under his 

lap, removed a syringe, and dropped it to the floor. For safety reasons, the officers 

had Appellant, Kirby, and Gonzales exit the vehicle, and the officers handcuffed 

them. The officers searched Appellant, Kirby, and Gonzales for weapons. 

Detective Dibrell found marihuana and a Q-tip in one of Appellant’s pants pockets. 

Detective Dibrell testified that cotton from Q-tips is commonly used as a filter in 

connection with injecting methamphetamine. Officer Williams found a bag that 
3

contained three small Ziploc bags full of methamphetamine and twenty-nine empty 

Ziploc bags in one of Kirby’s shoes. The three bags contained about sixteen grams 

of methamphetamine. Testing of the substances at the Department of Public Safety 

Laboratory in Abilene confirmed that the seized substances were 

methamphetamine. Officer Hale found a pipe that contained methamphetamine 

residue in one of Gonzales’s shoes.

Appellant told Detective Dibrell that he felt sick and dehydrated. Detective 

Dibrell said that Appellant turned “white as a ghost” and could barely stand up. 

Detective Dibrell gave Appellant something to drink.

Detective Dibrell gave Miranda1 warnings to Appellant, Kirby, and 

Gonzales. They all told Detective Dibrell that they wanted to talk to him.

Appellant told Detective Dibrell that he had driven Kirby and Gonzales to 

Granbury so that Kirby and Gonzales could obtain methamphetamine. Appellant 

told Detective Dibrell that he knew methamphetamine was inside the vehicle. 

On the following day, Detective Dibrell took a recorded statement from 

Appellant. During the statement, Appellant acknowledged that he took Kirby and 

Gonzales to Cindy Webb’s trailer house in Granbury so that Kirby and Gonzales 

could get methamphetamine from Webb. According to Appellant, he believed that 

Kirby planned to get about four grams of methamphetamine from Webb. After the 

group arrived at Webb’s house, Kirby left with Webb and two men to obtain 

methamphetamine. Appellant and Gonzales stayed at Webb’s house. Kirby and 

the others returned to Webb’s house about five hours later. Appellant said that, at 

that time, he smoked methamphetamine at Webb’s house. Appellant told 

Detective Dibrell that both Kirby and Gonzales obtained methamphetamine from 

Webb. Appellant told Detective Dibrell that he knew Kirby had methamphetamine 

inside the vehicle. 

 

1Miranda v. Arizona, 384 U.S. 436 (1966).
4

Detective Dibrell agreed that sixteen grams of methamphetamine is a “fairly 

substantial” amount. He said that such an amount was intended for distribution as 

opposed to individual use. Detective Dibrell said that sixteen grams of 

methamphetamine has a value of at least $1,600. Detective Dibrell testified that 

Ziploc bags, such as the twenty-nine empty bags that were found in Kirby’s shoe, 

are used to package methamphetamine for distribution. Detective Dibrell said that 

he had “no doubt” that the amount seized was intended for distribution.

Kirby testified that the methamphetamine belonged to him. He said that 

Appellant did not know anything about the methamphetamine. Kirby testified that 

he planned to distribute the bags of methamphetamine to two people.

Detective Dibrell testified about the location of the stop. He said that 

Appellant stopped his vehicle “directly across” from Early High School. 

Detective Dibrell indicated that the stop occurred less than 1,000 feet from school

property.

Analysis

Appellant presents five issues for review. In his first two issues, Appellant 

contends that the trial court erred (1) in defining “intentionally” and “with intent” 

in terms of the nature of the conduct rather than the result of the conduct in the 

abstract portion of the jury charge and (2) in failing to apply a result-of-conduct 

definition of “intentionally” and “with intent” to the law of parties issue in the 

application portion of the jury charge. In his third issue, Appellant contends that 

his trial counsel rendered ineffective assistance in failing to request that the jury 

charge provide a definition of “intentionally” and “with intent” in terms of the 

nature of the result only and to request that those definitions be applied to the law 

of parties as set forth in the application paragraph of the charge. In his fourth 

issue, Appellant contends that the trial court erred in refusing to allow him to 

impeach the credibility of Detective Dibrell by eliciting testimony related to 
5

Detective Dibrell’s work history and to an allegation that Detective Dibrell 

tampered with evidence. In his fifth issue, Appellant contends that the evidence 

was insufficient to establish that he committed the offense within 1,000 feet of the 

premises of a school.

A. Jury Charge Issues

The indictment alleged that, on or about November 9, 2011, Appellant “did 

then and there knowingly possess, with intent to deliver, a controlled substance, 

namely, Methamphetamine, in an amount of four grams or more but less than 200 

grams.” The indictment further alleged that “[appellant] committed the above 

offense within 1,000 feet of the premises of a school, to wit: Early High School, 

115 Sudderth, Early, Texas.”

The trial court stated in the jury charge that “[o]ur law provides that a person 

commits an offense if he knowingly possesses with intent to deliver a controlled 

substance.” The trial court included the following definitions of “intentionally” 

and “knowingly” in the charge:

 A person acts intentionally, or with intent, with respect to the 

nature of his conduct when it is his conscious objective or desire to 

engage in a conduct.

 A person acts knowingly, or with knowledge, with respect to the 

nature of his conduct or to the circumstances surrounding his conduct 

when he is aware of the nature of his conduct or that the 

circumstances exist.

The trial court also provided instructions related to the law of parties. The trial 

court stated as follows:

 A person is criminally responsible as a party to an offense if the 

offense is committed by his own conduct, by the conduct of another 

for which he is criminally responsible, or by both.

 

 A person is criminally responsible for an offense committed by the 

conduct of another if, acting with intent to promote or assist the 

commission of the offense, he solicits, encourages, directs, aids, or 
6

attempts to aid the other person to commit the offense. Mere presence 

alone will not constitute one a party to an offense.

The trial court submitted a law of parties issue in the application paragraph of the 

charge. 

Section 6.03 of the Penal Code provides that “[a] person acts intentionally, 

or with intent, with respect to the nature of his conduct or to a result of his conduct 

when it is his conscious objective or desire to engage in the conduct or cause the 

result.” TEX. PENAL CODE ANN. § 6.03(a) (West 2011). Thus, with respect to the 

definition of “intent,” Section 6.03(a) delineates two “conduct elements” that may 

be involved in an offense: (1) the nature of the conduct and (2) the result of the 

conduct. See McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). As 

shown above, the trial court in this case defined “intent” in terms of the nature of 

the conduct and not in terms of the result of the conduct.

Appellant argues that the trial court erred in failing to define “intentionally” 

in terms of the result of the conduct in the abstract portion of the charge and in 

failing to apply a result-of-conduct definition to the law of parties. We disagree.

A nature-of-conduct crime, such as gambling or assault by threat, is criminalized 

because the nature of the act itself is unlawful, regardless of any result that might 

occur. McQueen, 781 S.W.2d at 603; Zuliani v. State, 383 S.W.3d 289, 298 (Tex. 

App.—Austin 2012, pet. ref’d). “[T]he act itself is the gravamen of the offense.” 

Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011). When specific acts 

are criminalized because of their very nature, a culpable mental state must apply to 

committing the act itself. McQueen, 781 S.W.2d at 603. A result-of-conduct 

crime, such as murder or injury to a child, is one in which unspecified conduct is 

criminalized because of its result. Id.; Zuliani, 383 S.W.3d at 298. When 

unspecified conduct is criminalized because of its result, a culpable mental state 

must apply as to that result. McQueen, 781 S.W.2d at 603. 
7

An offense may be both result and nature oriented. Id.; Murray v. State, 804 

S.W.2d 279, 281 (Tex. App.—Fort Worth 1991, pet. ref’d). In such cases, the trial 

court should submit the complete statutory definition of “intentionally” and 

“knowingly” so that the jury can consider both the result of the defendant’s 

conduct and the nature of his conduct. Murray, 804 S.W.2d at 281. However, if 

the offense is either only a nature-of-conduct offense or a result-of-conduct 

offense, the trial court should submit statutory definitions of “intentionally” or 

“knowingly” that are limited to the respective culpable mental state required. 

Cook v. State, 884 S.W.2d 485, 490-91 (Tex. Crim. App. 1994); Murray, 804 

S.W.2d at 281. 

Section 481.112(a) of the Health and Safety Code provides that a person 

commits the offense of possession of a controlled substance with intent to deliver it 

if he “knowingly . . . possesses with intent to deliver a controlled substance listed 

in Penalty Group 1.” TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 

2010). Methamphetamine is listed in Penalty Group 1. See id. § 481.102(6). 

Section 481.112(a) criminalizes the act of possessing a controlled substance with 

intent to deliver it. The gravamen of the offense is the conduct of possessing a 

controlled substance with the intent to deliver it. The act or conduct of 

“knowingly” possessing a controlled substance with intent to deliver it is punished, 

regardless of any result. The offense focuses on the nature of the defendant’s 

conduct and not any result that might occur. Because the offense focuses on the 

nature of the conduct, we conclude that, as alleged in the indictment in this case, 

the offense of possession of methamphetamine with intent to deliver it is a natureof-conduct offense. Therefore, the trial court did not err in defining “intentionally” 

and “knowingly” in the jury charge as those definitions related to the offense 

charged in the indictment. 
8

At trial, Appellant presented a defense that he believed the purpose of the 

trip to Granbury was for Kirby to obtain money from Webb so that Kirby could 

pay his rent. Appellant attempted to establish that he did not know Kirby and 

Gonzales planned to obtain methamphetamine from Webb or actually obtained it 

from her. Appellant essentially contends that, because the trial court defined 

“intentionally” in terms of the nature of the conduct, the charge improperly 

allowed the jury to convict him under the law of parties if the jury concluded that 

he intentionally drove the vehicle, even if he was mistaken about the purpose of the 

trip. We disagree with Appellant’s contention. 

Section 7.01(a) of the Penal Code provides that “[a] person is criminally 

responsible as a party to an offense if the offense is committed by his own conduct, 

by the conduct of another for which he is criminally responsible, or by both.” 

PENAL § 7.01(a). Section 7.02(a)(2) provides that “[a] person is criminally 

responsible for an offense committed by the conduct of another if[,] acting with 

intent to promote or assist the commission of the offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the offense.” Id.

§ 7.02(a)(2). When a party is not the primary actor, the State must prove conduct 

constituting an offense plus an act by the defendant done with the intent to promote 

or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985); 

Schnidt v. State, 357 S.W.3d 845, 855 (Tex. App.—Eastland 2012, pet. ref’d).

Section 7.02(a) contains the culpable mental state of “intent.” Specifically, the 

statute requires the State to prove that the defendant committed an act with the 

“intent” to promote or assist the commission of the offense. PENAL § 7.02(a)(2).
9

In this case, the trial court’s instructions on the law of parties in the abstract 

section of the jury charge tracked the language of the relevant statutory provisions. 

The trial court stated as follows in the application paragraph:

 Now, if you find from the evidence beyond a reasonable doubt 

that . . . KEVIN ROYCE PEEK . . . (either acting alone or with 

JAMES KIRBY PEEK or HECTOR GONZALES, with the intent to 

promote or assist the commission of the offense of Possession of a 

Controlled Substance with the Intent to Deliver, if any, solicited, 

encouraged, directed, aided or attempted to aid JAMES KIRBY 

PEEK or HECTOR GONZALES, to commit the offense, if he did), 

did then and there knowingly possess, with intent to deliver, a 

controlled substance, namely, methamphetamine, in an amount of four 

grams or more but less than 200 grams, then you will find the 

defendant “guilty” as charged of Possession of a Controlled Substance

with Intent to Deliver, as set forth in the indictment.

The language in the application paragraph followed the appropriate statutory 

language for the law of parties. See PENAL § 7.02(a)(2).

The court’s charge did not allow the jury to convict Appellant based only on 

a finding that he intentionally drove the vehicle. Instead, the trial court correctly 

charged the jury on the culpable mental state: Appellant must have acted with the 

“intent” to promote or assist the commission of the charged offense. See id. As to 

the law of parties, the charge required the State to prove that Kirby or Gonzales

engaged in conduct that constituted the charged offense and that Appellant 

committed an act with the intent to promote or assist such conduct. Beier, 687 

S.W.2d at 3. As stated above, the trial court instructed the jury that “[a] person 

acts intentionally, or with intent, with respect to the nature of his conduct when it is 

his conscious objective or desire to engage in a conduct.” As charged, the jury 

could not convict Appellant under the law of parties unless it found that Appellant

acted with the conscious objective or desire to promote or assist Kirby or Gonzales 

in the commission of the offense. If, as Appellant claimed, he did not know that 
10

Kirby and Gonzales planned to obtain or had obtained methamphetamine, he could 

not have formed the requisite intent to promote or assist them in the commission of 

the offense, and the jury could not have convicted him under the court’s charge. 

Accordingly, we conclude that the jury charge was not erroneous. Appellant’s first 

and second issues are overruled. 

B. Assistance of Counsel

To determine whether Appellant’s trial counsel rendered ineffective 

assistance, we must first determine whether Appellant has shown that his counsel’s 

representation fell below an objective standard of reasonableness and, if so, then 

determine whether there is a reasonable probability that the result of the 

proceeding would have been different but for his counsel’s errors. Strickland v. 

Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55–57 

(Tex. Crim. App. 1986). We must indulge a strong presumption that counsel’s 

conduct fell within the wide range of reasonable professional assistance, and 

Appellant must overcome the presumption that, under the circumstances, the 

challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 

689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). An allegation of 

ineffective assistance of counsel must be firmly founded in the record, and the 

record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. 

State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

In his third issue, Appellant contends that his trial counsel rendered 

ineffective assistance in failing to request that the jury charge provide a definition 

of “intentionally” and “with intent” in terms of the result of conduct and in failing 

to request that those definitions be applied to the law of parties as set forth in the 

charge. Trial counsel is not ineffective for failing to make futile objections or 

request instructions that are not required. Wood v. State, 4 S.W.3d 85, 91 (Tex. 

App.—Fort Worth 1999, pet. ref’d). To prevail on an ineffective assistance claim 
11

for failing to make an objection, an appellant must show that the trial court would 

have erred in overruling the objection. Vaughn v. State, 931 S.W.2d 564, 566 

(Tex. Crim. App. 1996). Likewise, to show counsel was ineffective for failing to 

request a jury instruction, an appellant must show that he was entitled to the 

instruction. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000). We 

have already held that the trial court’s instructions on intent and the law of parties 

were not erroneous. Accordingly, Appellant cannot show that the trial court would 

have erred in overruling an objection to the instructions or that he was entitled to 

instructions that defined intentionally in terms of the result of conduct. 

Appellant has not shown that his counsel rendered ineffective assistance. 

Appellant’s third issue is overruled.

C. Exclusion of Impeachment Evidence

Appellant contends in his fourth issue that the trial court erred in excluding 

evidence that Detective Dibrell left the Early Police Department after being 

demoted there and that Detective Dibrell allegedly tampered with evidence in 

another case. Appellant asserts that this evidence was admissible to impeach 

Detective Dibrell’s credibility as a witness.

We review a trial court’s decision to admit or exclude evidence under an 

abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. 

App. 2006). We will not reverse a trial court’s ruling unless it falls outside the 

zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. 

App. 2002). 

The exclusion of potential impeachment evidence touches upon an accused’s 

Confrontation Clause rights. See Davis v. Alaska, 415 U.S. 308, 315–16 (1974); 

Pointer v. Texas, 380 U.S. 400, 403–04 (1965); Castillo v. State, 939 S.W.2d 754, 

758 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d). The accused should be 

allowed great latitude to show a witness’s bias, prejudice, or motives to testify 
12

falsely. Chambers v. State, 866 S.W.2d 9, 26–27 (Tex. Crim. App. 1993); 

Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982). The 

proponent of impeachment evidence bears the burden of demonstrating the 

relevance of the proffered evidence to the issue of bias or prejudice. Chambers, 

866 S.W.2d at 26–27. Evidence is relevant if it has “any tendency to make the 

existence of any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence.” TEX. R. EVID.

401. The credibility of a witness may be attacked by evidence that the witness is 

slanting his testimony against or in favor of a party as a result of a personal interest 

or bias in the cause. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 

1995). The proponent of the evidence must establish a specific connection 

between the witness’s testimony and the cause that discloses an actual bias or 

motive. Id. Determining the limits of cross-examination to show bias is a matter 

that rests within the sound discretion of the trial court. Chambers, 866 S.W.2d at 

27.

Outside the presence of the jury, Appellant’s counsel informed the trial court 

that “we intend as impeachment purposes to bring up some of the circumstances 

regarding why Mr. Dibrell left the Early Police Department to go to work in Mills 

County.” Appellant’s counsel stated, “specifically, Your Honor, the issues that we 

would like to bring up would be basically that Mr. Dibrell quit on his own after 

being demoted, and also we understand there has been allegations that Mr. Dibrell 

tampered with evidence.” The trial court stated that, “if there is any allegation of 

tampering, we are going to take that up outside of the presence of the jury.” 

Appellant’s counsel stated that, “regarding evidence to that matter, Chief Mercer 

will probably be our witness.”

Appellant’s counsel questioned Detective Dibrell on voir dire examination. 

During that examination, Detective Dibrell testified that he left his employment 
13

with the Early Police Department voluntarily and that he was not fired from the 

department. He said that he had conflicts with Chief Mercer with respect to the 

manner in which Chief Mercer conducted the department’s operations. 

Detective Dibrell made his concerns known to Chief Mercer. Detective Dibrell did 

not believe that Chief Mercer ever questioned his honesty with respect to the 

concerns that he raised. Appellant’s counsel tried to establish that Detective 

Dibrell was demoted from his investigative duties to patrol duties. Detective 

Dibrell testified that Chief Mercer threatened to demote him but never demoted 

him. Detective Dibrell said that he “[went] back to patrol” because the department 

was shorthanded in patrol.

Appellant’s counsel also asked Detective Dibrell questions about whether 

anyone had ever alleged that he tampered with evidence. The following exchange 

occurred:

 Q. Now, to your knowledge, since you left the Early Police 

Department, has there been an allegation regarding that perhaps you 

tampered with evidence?

 . . . .

 A. Yeah, I hear it all the time. I hear stuff since I have been an 

officer.

 Q. Is there a specific allegation regarding a Mr. Box or a name 

similar to that?

 A. Not that I’m aware of. If you clarify who Mr. Box is, I might 

could be a little bit more specific with my answer.

 Q. So, you don’t know of any specific allegation of tampering 

with evidence that has been raised since you left the Early Police 

Department?

 A. Yes, I am. I mean, once I quit, the rumor was I got fired for 

tampering with evidence. I mean, that comes with -- that is the nature

of the beast in narcotics.

 
14

 Q. Have you -- has there been a specific person or event named 

with that rumor?

 A. Not to my knowledge. I haven’t been able to figure out where 

it stemmed from, but I would hope that if the rumor was true, I would 

hope I would have been investigated and would have been found 

guilty or innocent, one way or another because --

 Q. So, you understand or, I guess, maybe you’ve heard the same 

rumors I have?

 A. Well, I’ve heard rumors about every narcotics officer, me 

included. So, I take a firm stance against dirty officers. I will be the 

first to go after a dirty officer . . . .

 Q. Has there been an investigation that you know of regarding 

allegations made against you for tampering with the evidence?

 A. The only thing that I could think of is, one time somebody 

came in. We seized a cell phone, and he was a third party, saying, 

“Hey, my coworker” -- “The guy, my employee, said that you used 

his cell phone to make a phone call,” or something like that, or added 

a call or something like that. But that was nothing. That is the only 

thing that I can think of, because that was a major case I had at the 

time that was pending, that did raise a big stink, because that one was 

tied in with a huge methamphetamine case. 

 Q. No official proceedings or complaints have been brought 

against you since you left the Early Police Department?

 A. No, sir, and I would like to know if you have any.

 [Defense Counsel]: Your Honor, we have no further questions.

The judge then stated that, “[f]rom what I have heard, unless you have other 

evidence to put on, then I am not going to allow the questions.” Appellant’s 

counsel stated that “we would like to bring this evidence up in the trial regarding 

impeachment of Mr. Dibrell. We believe that it does affect his credibility.” The 

judge ruled, “I’m not going to allow the evidence, unless you have further proof of 

an actual event or events, other than just speculation and rumor.” Appellant did 
15

not call Chief Mercer to testify on the issue. Nor did Appellant present any other 

evidence on the issue.

Appellant contends in his brief that Detective Dibrell could have believed 

that the more helpful he was in obtaining convictions in Brown County by giving 

testimony that was favorable to the State, the less likely it was that the district 

attorney’s office would investigate the tampering allegations against him. Based 

on this contention, Appellant argues that the excluded testimony showed a 

potential bias or motive on the part of Detective Dibrell to provide testimony that 

was favorable to the prosecution and that, therefore, the testimony was admissible 

to impeach Detective Dibrell’s credibility. We disagree.

As the trial court concluded, Appellant presented nothing more than 

“speculation and rumor” on the impeachment issues. Appellant did not present any 

evidence that identified any person who had made a tampering allegation or that 

showed the details of any tampering allegation. Nor did Appellant offer any 

evidence that Detective Dibrell had been investigated on a tampering allegation in 

the past or that he faced a future investigation. Additionally, Appellant did not 

show that Detective Dibrell had been demoted at the Early Police Department for 

any reason, much less because of a tampering charge. Based on the speculative 

nature of the proffered evidence, the trial court could have reasonably concluded 

that Appellant failed to meet his burden to demonstrate the relevance of the 

evidence to the issue of bias or motive to testify falsely. Therefore, we conclude 

that the trial court did not abuse its discretion in excluding the evidence. 

Appellant’s fourth issue is overruled. 

D. Sufficiency Challenge

In his fifth issue, Appellant challenges the sufficiency of the evidence to 

establish that he committed the offense in a drug-free zone. Specifically, 

Appellant contends that the evidence was insufficient to support the jury’s finding 
16

that he committed the offense within 1,000 feet of the premises of a school. See

HEALTH & SAFETY § 481.134(c)(1) (West Supp. 2014).

In response to a special issue, the jury found that Appellant committed the 

offense within 1,000 feet of Early High School. We review a challenge to the 

sufficiency of the evidence under the standard of review set forth in Jackson v. 

Virginia, 443 U.S. 307, 319 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. 

Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 

2010, pet. ref’d). Under that standard, we examine all of the evidence in the light 

most favorable to the verdict and determine whether, based on that evidence and 

any reasonable inferences from it, any rational trier of fact could have found the 

essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 

319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a 

sufficiency review, we defer to the jury’s role as the sole judge of the witnesses’ 

credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 

899.

Detective Dibrell testified regarding the location where he stopped 

Appellant’s vehicle. He said that the stop occurred on Early Boulevard, “directly 

across from the high school.” He then testified as follows in answer to the 

prosecutor’s questions:

 Q. And, so, when we say directly across from the high school, can 

you give the jury an estimation of approximately how far away they 

would have been from the school property?

 A. 50 foot maybe -- four lines, including the left turn lane. Then 

right on the other side of that is school property.

 Q. All right.

 A. Or -- I don’t know if it actually belongs to the school, because 

you have some occupied space between it and the school, but.

 Q. Well, can you safely say that it was fairly close to the school?
17

 A. Oh, yes, yes, for sure. I mean, just right there across the street. 

There may have been like a building or something else, but right 

behind that is the school.

 Q. All right. So, if I was to ask you specifically about, you know, 

from where they were stopped to where the school was located or 

school property, the edge of the school property and so forth, would it 

have been less than a thousand feet?

 A. Oh, yes, definitely.

 Q. No doubt about that?

 A. No, no question about it.

 Q. Okay. Now, the school we are talking about, that is the one 

that is located there at the 115 Sudderth Drive in Early, Texas?

 A. Yes, sir.

Kirby testified that Detective Dibrell pulled Appellant over by Early High 

School. Kirby said that Appellant stopped the vehicle right by Early High School.

Based on the evidence, we conclude that a rational trier of fact could have 

found that Appellant committed the offense within 1,000 feet of the premises of a 

school. Therefore, the evidence is sufficient to support the finding that Appellant 

committed the offense in a drug-free zone. Appellant’s fifth issue is overruled.

This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY

April 16, 2015 JUSTICE

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.