NO. 07-00-0473 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JULY 24, 2002

______________________________ KAREEM ABDUL JABBA R W HITE, APPELLANT V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 64 TH DISTRI CT COURT OF SW ISHER COUNTY; NO. B3335-99-07CR ; HONORA BLE JACK R. M ILLER, JU DGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Following a plea of not guilty, appellant Kareem Abdul Jabbar W hite was conv icted bya j uryof delivery of cocaine, enhanced, and punishm ent was assessed by thetrial court at60 years confinem ent and a $5000 fine. Presenting eight issues, appellant challenges his conviction. By issues one and two, he contends theevid enc e is lega lly a nd f act ually insufficient to sustain hi s convict i on because Agent Tom Coleman, the primary witness,2

testified contrary to the allegations in the indictment. B y issues three and four, appellant asserts theevid enc e is lega llyand fac tua llyinsuffi cient to sustai n his convi ction because byhis testimony

Agent TomColeman placed h im self in Am arillo or between Am arillo and Tulia at the tim e the offense occurred. By issues five through eight, appellant challenges the legal and factual sufficiency of the evidence to establish the elem ents of a playground
as set forth in section 481.134(a)(5) of theTexas Health and Safety C ode and whet her the
cr i me occurred w ithin 1,000 feet of a playground. Based upon the rationale expressed he re i n, we a ff i rm. During an 18-mo nth period from January 1998 to A ugust 1999, TomColeman was hired by t he Swish er County Sheriff’s Office and assigned to the P anhandle Regional Narcotics Task Force to w ork deep undercover and infiltrate th e drug comm unity. Coleman blended into t he T uli a c ommu ni ty an d p er fo rme d ma nu al l ab or . H e b ec ame frien ds with E lijah Kelly, who introduced C oleman to app ellant. On Mondays, Co leman worked at the Tulia Livestock Auction (sale barn). On M onday, Septem ber 28, 199 8, K

elly and Coleman began their dayat the sale barn at approx imately 6:30 a.m . Colem an asked Ke llywhere hecou ld buy crank or m etham phetam ine. The two event ually ended up at a residence where appellant sold Colem an a bag of cocaine. Byhis first four issues, appellant challenges the legal and factual sufficiency of the eviden ce to sustain his conviction. We di sagree. When both the legal and factual suffici ency of the evidence are chall enged, we must first determine whether the evide nce3

is legally sufficient to support the verdict. Clew is v. Stat e, 922 S.W.2d 126, 133 (Tex.Cr.A pp. 1996). It is a fundam ental rule of criminal law that one cannot be convicted of a crime unless it i s sh own b eyond a reasonable doubt that thedefendant com mitted each element of

the alleged offense. U.S. Const. am end. XIV; Tex. Code C rim. Proc . Ann. art. 38.03 (V

ernon S upp. 200 2); Tex. P en. Code Ann. §2.01 (Vernon 1994). In co nducting a legal sufficiency review, we m ust determ ine whether, after v iewing the evidence in the light most

fa vorable to the prosecution, any rational trier of fact could have found the essential elements of the crim e beyond a reasonable doubt. J ackson v. V irginia, 443 U.S. 307, 318, 99 S.Ct . 2781, 2789, 61 L.E d.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Te x.Cr.A pp. 1991), overruled on other grounds , Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.A pp. 2000). As an appellate court, we m aynot sit a s a thirte enth j uror, butm ust uph old t he j ury 's v erd ict unle ss it is irrational or un supported by m ore than a m ere m odicumof eviden ce. M oreno v. Stat e, 755 S .W.2d 866, 867 (Te x.C r.App. 1988).
After conducting a legal sufficienc y review under Jackson , we ma y proceed w ith a factual sufficiency review. Cle wis , 922 S. W.2d at 133 . Th e Co urt

of C rim inal A ppe als has directed us to askwhether a neutral review of all the evidence, both for and against t he finding, dem onstrates that the proof of gui lt is so obviously weak as to underm ine confidence in t he f

act find er’ s de ter m inat ion, or t he p roo f of guilt , alt ho ugh ade qua te if taken alone, is greatly outweighed by contrary proof. Johnson v. S tate, 23 S.W.3d 1, 11 (Tex.Cr.A pp. 2000) (adopting com plete civil factual sufficiency formulation); see also King4

v. State, 29 S. W .3d 556, 563 (Tex.Cr.App. 2000). Accordingl y, we w ill reverse the fact finder’s determination on ly if a manifest i njustice has occurred. Johnson , 23 S.W.3d at 12. In conducting this analysis, we m ay di sa gr ee wi th t he j ury ’s determ inat ion, eve n if probati ve evidence supports the verdict, but m ust avoid substituting our ju dgmen t for that of the fact finder. See Sante llan v. State, 93 9 S.W.2d 155, 1 64 (Tex .Cr.A pp. 1997 ).
Bef ore d etermining w hether the evidence is legally sufficient to sustain the convict ion, we m ust review the essential elements the State w as required to prove. Appellant was indicted for intentionally and knowingly delivering by actual transferto Tom Coleman, cocaine in an am ount of one gramor m ore but less than four gram s. See Te x. Health & Safety

Code Ann. § 48 1.1 12(a) &(c) (Vernon Supp. 2002). Actual transfer consists of

transferring the real possession and control of a controlled substance from one person to another person. N evarez v. State, 767 S.W.2d 766, 768 (Tex.Cr.A pp. 1989) (en banc).
The evidence established that Kelly introduced Colema n to appellant and that the two me t on a num ber of occasions prior to Septem ber 28, 1998. Coleman testified that on the date of the offense , he and Kelly began their Monday at the sale barn at 6:30 a.m . and Coleman asked w her

e hecou ld buy crank or m etham phetam ine. According to Colem an, Ke llysuggested a few

nam es and places and they ende d up parke d near a residential driveway. Co lem an r

em aine d in the truck and Kelly walked to the front porch to speak w ith
a ma n nam ed “Cash.” Just t hen, appellant pulled up in a car and approached Colem an5

and asked w hat he needed. App ellant explained that he did not have crank, but did have “powder” and walked inside the house and returned with som e “dope” which Colem an boughtfor $220. A chem ist with the Tex as Departm ent of Public Safety testified that he
exam ined the substance and determ ined it to be c ocaine weighing 2.98 gram s. We conclude theevid enc e is le gally sufficient to establish delivery by actual transfer from appellant to Coleman of cocaine of one or m ore but less than four gram s.
Conclud ing that the evid ence is l egall y sufficie nt to support the ver dict, we must
now determ ine, afte r a neu tra l rev iew of a ll theevid enc e, w het her it isfac tua llysufficient to supp ortthe verdict. Johnson , 23 S.W.3d at 11. Itis the exclusi ve province of the fact finderto determ ine the credibili ty of the w itnes ses and thew eigh t tobe g iven the ir testimony. Johns on v. S tate, 5 71 S.W.2d 170, 173 (Tex .Cr.A pp. 1978 ); Ar ms trong v. State , 958 S .W.2d 278, 284 (Te x.A pp.--A m arillo 1997, pet . ref'd). The defense’s trial strategy w as to discredit Colema n by establishing that he was untruthful and that

by his test im ony , hecou ld not have m ade a buy fromappellant at the time referenced in his report. According to his report, Colema n purchased cocaine from appellant on Septem ber 28, 1998, at 10:35 a. m. Col em an t est ifie d th at a fte r he w ould make a drug b uy in Tulia, it w as his rou tine to ret urn to Am arillo as soon as possible and weigh and test the substa nce, com plete an evidence tag, place the evidence in a tem porary

narcotics vault, and generate a w ritten report. Mike Am os, Com mande r of the Pa nha ndleRegional Narcotics Task Force also testified that policy after a drug bu ywas6

to generate a report, conduct a field test, and book the narcotics into evidence on the date of the buy, if possible. Colem an confirmed that after a secretary typed his report of appellant’s drug sale, he reviewed it and then s igned it.
After a hearing outside t he j ury’s presence, the t rial court permitted t he defense to question Coleman re garding a separate drug transaction that also took place on the morning of Septem ber 28, 1998. According to Coleman’ s report of the other drug transact ion, he made a purchase in Tul ia from W ill ie B. Hall at 9:31 a.m. and paid ove r taskforce m oney at 9:40 a.m

. Ut ilizin g Coleman’ s protocol as testified to by him , the defense attem pted to establish that given the 45- m inut e dr ive f romTulia to A m arillo , it
w ould have been physically imposs ible for Coleman to m ake a purchase fromappellant at 10:35 a.m . in Tulia if Coleman was in A marillo following up on the buy fromHall.
The State argues that

although Coleman explained his usua l procedureafter a drug purchase wasto return to Am arillo, there is no evidence to show that Colem an returned to Am arillo after his purchase w ith W illi e B. Hall. Relying on Franklin v. State, 928 S .W .2d 707, 708 (Tex .App. –Houston [14t h Dist.] 1996, n o pet.), the State further asserts that any confli ctin Coleman’ s testim ony goes to his credibility which is to be determined by the fact finder and not to be intruded upon by an appellate court. Elijah Kelly enter ed into a pl ea bargai n to testify agai nst appell ant. He testified that
on September 28, 1998, he observed ap pell ant hand “something” o ve r to Coleman, but1 We me asure the sufficiency of the ev idence by the elem ents of the crime as defined by the hypothetically correct j ury charge. Ma lik v. State, 953 S.W. 2d 234, 240 (Tex. Cr.Ap p. 1997)

. 7 thathe did not see appellant deliver “dope” to him. The State a ttem pted to disc red it Kelly byhis prior testimony fr om a nother trial that resulted from C oleman’s undercover operation. Conducting a neutral review of all the record evidence under Johnson , 23 S.W.3d at 11, and without substi tuting our own j udgment, we conclude that the evid ence is factually sufficient to support the verdict. Issue s one through four are overruled. By issues five through eight, appellant challenges the sufficiency of the evidence to support the enhancem ent of punishm entwhere theState failed to prove the elem ents of a playground and tha t the crime occ urred within 1,000 feet of a playground. 1 We disagree. The enhancem ent paragraph of the indictm ent recites [a]nd it is further presented in and to said C ourt that the defendant com mitted the above offense within 1,000 feet of a playground, to-wit: the Conner Park in Tulia, Texas . .

. . Appellant specifically asserts that the State failed to produce evidence to show that Conner Park is a playground. A playground is defined as “any outdoor facility . . . t hat is (A) intended fo r recreat ion; (B) isopen tothe pub lic; and (C)containsthree or m ore separate apparatu s intended for the recreation of children, such as slides, sw ings, and teeter boar ds.” Tex . Health & Sa fety C ode An n. § 481 .134(a)(3 ) (Verno n Supp . 2002). Further, in a prose cution und er section 481.134, a m ap showing the location and8

boundaries of drug-free zones is admissibl e in evi dence and is pr ima fa cie proof of the location or bo undari es of those areas if the go verning body adopts a resolution or ordinan ce approving the m ap. See § 481.135. When OfficerJim M ull testified, the State introduced Exhibit 4, a resolution for Tulia approving a drug-free zone m ap. The resolution contains a m ap showing the location of Conner Park. During his testimony , Mull circled the location of Conner Park o n the m ap and ma rked the location of the drug transaction with an “X.” According to his testim ony, he me asured the distance betw een the driveway where the t ransaction occurred and the park to be approxim ately 192 feet.
Mu ll testified that he observed at least three apparatus for the recreation of c hildren atConner Park. We have searched but found no case law interpreting “apparatus” as used in section 481.134(a)(3)(C). In addition to slides and swings, M ull also observed that the park provided a basketball court, sandbox , and a pavilion. Appellant suggests thatwe lim itthe ter m “ap par

atu s” to inc ludeonly

tho se item s s pec ific ally m ent ione d in the statute, i.e. , slides, swing sets, and teeterboards. W e agree with the S tate that the Leg islat ure did notintend to limit playground apparatus to only slides, sw ing sets, and teeterboards, and thatthe phrase “such as” could be interpreted as m eaning “including but not li mited to” th e apparatus me ntioned in section 481.134(a)(3)(C). We conclude the evidence is sufficient to establish the enhancem ent paragraph of the indi ctm ent that appellant delivered a controlled substance w ithin 1,000 feet of a playground. Iss ues five through eight are overruled.9 Don H. Rea vis Justice Do not publish.