CAUSE NUMBER __________________

IN THE COURT OF CRIMINAL APPEALS 

FOR THE STATE OF TEXAS

WILLIAM DEWAYNE WHITE

PETITIONER 

v.

THE STATE OF TEXAS 

PETITION FOR DISCRETIONARY REVIEW 

IN TRIAL COURT CAUSE NUMBER: CR-14-25152

FROM THE 336TH JUDICIAL DISTRICT COURT OF 

FANNIN COUNTY, TEXAS 

AND FROM THE

SIXTH COURT OF APPEALS OF TEXAS

IN TEXARAKANA, TEXAS 

CASE NUMBER: No. 06-15-00078-CR

 STEVEN R. MIEARS

State Bar of Texas No.: 14025600

211 North Main

Bonham, Texas 75418

Tel: 903-640-4963

Fax: 903-640-4964

Email: SteveMiears@msn.com

ORAL ARGUMENT IS REQUESTED 

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PD-1596-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/8/2015 1:11:26 PM

Accepted 12/10/2015 5:28:59 PM

ABEL ACOSTA

CLERK
Identity of Parties and Counsel

Under Rule 68.4(a), Rules of Appellate Procedure, the following is a 

complete list of the names and addresses of all parties to the trial court’s final 

judgments and their counsel in the trial court, and appellate counsel, so the 

members of the court may at once determine whether they are disqualified to 

serve or should recuse themselves from participating in the decision of the cases 

and so the Clerk of the Court may properly notify the parties to the trial court’s 

final judgments or their counsel of the judgments and all orders of the Court of 

Criminal Appeals.

TrialJudge: THE HONORABLE JUDGE LAURINE BLAKE, 336TH JUDICIAL 

DISTRICT COURT

Petitioner .................................... WILLIAM DEWAYNE WHITE 

 TDC No.: 2001012

Gurney Unit 1385 FM 3328 

Palestine, Texas 75803-5000

Steven R. Miears (Counsel on Appeal)

SBOT# 14025600 

211 North Main

POB 736

Bonham, Texas 75418

903 640 4963 fax: 903 640 4964

SteveMiears@msn.com

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Mr. John O’Toole (Counsel at Trial)

SBOT #24045095

2414 W. University Drive 

Suite 122 D

McKinney, Texas 75071

THE STATE OF TEXAS Richard E. Glaser 

 SBOT# 08000000 

Criminal District Attorney 

101 East Sam Rayburn Drive 

Bonham, Texas 75418

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TABLE OF CONTENTS

IDENTIFICATION OF PARTIES AND COUNSEL...................................................2 

TABLE OF CONTENTS ......................................................................................... 4 

INDEX OF AUTHORITIES........................................................................................ 6 

STATEMENT REGARDING ORAL ARGUMENT...................................................8

STATEMENT OF THE CASE.....................................................................................8

STATEMENT OF PROCEDURAL HISTORY.............................................................8

GROUNDS FOR REVIEW STATED .........................................................................8

Ground Number One.

Question: Are sections 481.112 and 481.134(d) of the Health and Safety Code 

separate offenses?

Ground Number Two:

Question: Does Health and Safety Code section 481.134(d) require proof of a 

culpable mental state to support a jury finding at trial that an offense was committed 

in a drug-free zone? 

Reasons for Granting Review of Grounds One and Two:

A. This Court should grant review under T.R.A.P. section 66.3 (a) because the 

decision of the Court of Appeals may conflict with another court of appeals’ 

decision on the same issue. 

B. This Court should grant review under T.R.A.P. 66.3 (b) because the Court of 

Appeals has decided an important question of state or federal law that has not been, 

but should be, settled by this Court.

C. This Court should grant review under T.R.A.P. 66.3(d) because the Court of 

Appeals appears to have misconstrued sections 481.112 and 481.134(d) of the 

Health and Safety Code. 

Ground Number Three. 

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Question: Should an alternate juror be allowed to leave the courthouse before the 

regular jury returns a verdict, absent a motion to sequester the alternate made by a 

party?

Reason for Granting Review

A. This Court should grant review under T.R.A.P. 66.3 (b) because the Court of 

Appeals has decided an important question of state or federal law that has not been, 

but should be, settled by this Court.

B. This Court should grant review under T.R.A.P. 66.3(d) because the Court of 

Appeals appears to have misconstrued article 33.011 and article 35.23 of the Code of 

Criminal Procedure. 

ARGUMENT: GROUNDS ONE AND TWO........................................................ 10

ARGUMENT: GROUND THREE............................................................................ 18

PRAYER FOR RELIEF.........................................................................................21

CERTIFICATE OF SERVICE.......... ............................................................................... 22

CERTIFICATE OF WORD COUNT............................................................................... 23

APPENDIX 

(Copy of Opinion from Court of Appeals)

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INDEX OF AUTHORITIES 

Statutes and Rules

Tex. Alco. Bev. Code § 61.11. p.13

Tex. Code of Crim. Proc. Art. 33.011. p.19

Tex. Code of Crim. Proc. Art. 35.23. p.19

Tex. Code of Crim. Proc. Art. 42.12 section 3(g)(a)(1)(G)(ii). p. 10.

Tex. Gov’t Code, Section 508.145 (e). p.10

Tex. Health & Safety Code, section 481.112(b). pp. 10, 11, 13.

Tex. Health & Safety Code, section 481.112(c). pp. 10, 11, 13.

Tex. Health & Safety Code, section 481.134(b), p.16.

Tex. Health & Safety Code, section 481.134(d). pp. 8, 9, 11, 13, 14, 16, 18.

Tex. Health & Safety Code, section 481.134(h). p.10.

Texas Penal Code section 6.02 pp. 9; pp. 12, 13, 15, 16.

Texas Penal Code, Section 1.07 (22). p. 16.

Texas Penal Code, section 12.42(a). p.8, 17.

Cases

Bridges v. State, 454 S.W.3d 87, 88 (Tex. App.—Amarillo 2014, pet. ref’d) p.11

Castillo v. State, 319 S.W.3d 966 (Tex. App. Austin 2010). p.20

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Fluellen v. State, 104 S.W.3d 152, 166 (Tex. App.—Texarkana 2003 no pet.). p.12

Harris v. State, 125 S.W.3d 45, 50 (Tex. App.—Austin 2003, pet. dism'd). pp. 13, 14, 

15, 16.

Hastings v. State, 20 S.W.3d 786, 790 (Tex. App.—Amarillo 2000). p.16.

Trinidad v. State, 312 S.W.3d 23 (Tex. Crim. App. 2010). pp. 19, 20.

Uribe v. State, 573 S.W.2d 819, 821 (Tex. Crim. App. [Panel Op.] 1978). p. 12. 

White v. State, 2015 Tex. App. LEXIS 11973 (Tex. App. Texarkana Nov. 23, 

2015). pp. 11, 14, 16, 19, 22. 

Williams v. State, 127 S.W.3d 442, 445 (Tex. App.—Dallas 2004, pet. ref’d). p.4. 

Journals and Articles:

“Disparity by Design: How Drug Free Zone Laws Impact Racial Disparity – And Fail 

to Protect Youth,” A Justice Policy Institute Report Commissioned by The Drug 

Policy Alliance, Judith Greene, Kevin Pranis, Jason Ziedenberg, March, 2006. 

http://sentencingproject.org/doc/publications/sen_Drug-Free%20Zone%20Laws.pdf. 

p.11.

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STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested.

STATEMENT OF THE CASE 

Petitioner was convicted by a jury of the third-degree felony offense of delivery 

of less than one gram of methamphetamine in a drug-free zone under Tex. Health & 

Safety Code, section 481.134(d). (CR p. 88). The drug-free zone finding was made by 

the jury at the guilt / innocence phase. (CR p. 104 ) Sentencing was to the judge. After 

the trial court found one of the State’s enhancement allegations “true,” (CR p. 88) his 

sentencing range increased under Penal Code section 12.42(a) to that of a second 

degree felony. He was sentenced to fifteen years’ imprisonment by the trial court. (CR 

CR p. 88.)

STATEMENT OF PROCEDURAL HISTORY

The published opinion of the Court of Appeals was handed down on 

November 23, 2015. Petitioner filed no motion for rehearing. This Petition is 

timely if filed within 30 days of that date.

GROUNDS FOR REVIEW

Ground Number One.

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Question: Are sections 481.112 and 481.134(d) of the Health and Safety Code separate 

offenses?

Ground Number Two:

Question: Does Health and Safety Code section 481.134(d) require proof of a culpable 

mental state to support a jury finding at trial that an offense was committed in a drug- free zone? 

Reasons for Granting Review of Grounds One and Two:

A. This Court should grant review under T.R.A.P. section 66.3 (a) because the decision 

of the Court of Appeals conflicts with another court of appeals’ decision on the same 

issue.

B. This Court should grant review under T.R.A.P. 66.3 (b) because the Court of 

Appeals has decided an important question of state or federal law that has not been, but 

should be, settled by this Court.

C. This Court should grant review under T.R.A.P. 66.3(d) because the Court of 

Appeals appears to have misconstrued sections 481.112 and 481.134(d) of the Health 

and Safety Code.

Ground Number Three.

Question: Should an alternate juror be allowed to leave the courthouse before the 

regular jury returns a verdict absent a motion to sequester the alternate made by a 

party?

Reason for Granting Review

A. This Court should grant review under T.R.A.P. 66.3 (b) because the Court of 

Appeals has decided an important question of state or federal law that has not been, but 

should be, settled by this Court.

B. This Court should grant review under T.R.A.P. 66.3(d) because the Court of 

Appeals appears to have misconstrued article 33.011 and article 35.23 of the Code of 

Criminal Procedure.

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Argument 

Grounds One And Two: This Court has never decided the important question 

of whether the offense of manufacturing or delivery of a controlled substance 

found in penalty group one in section 481.112 of the Health and Safety Code is a 

separate offense from manufacturing or delivery of a controlled substance in 

penalty group one which occurs in a drug-free zone set forth in 481.134(d). 

Similarly, this Court has never decided the interrelated question of whether at 

guilt/innocence the State must prove that the defendant was knowingly in a drugfree zone to commit an offense under Health and Safety Code Section 481.134(d). 

These are important questions because a drug-free zone finding mandates 

significant collateral consequences including: enhanced of punishment ranges, (Health 

and Safety Code, section 481.134(c)); mandatory parole ineligibility with mandatory 

flat time, (Tex. Gov’t Code § 508.145 (e)); and, the mandatory stacking of some 

sentences (Health and Safety Code, section 481.134(h)). It is even classified under 

Article 42.12 section 3(g)(a)(1)(G)(ii) as one of the offenses for which a trial court 

cannot give regular probation. The enhanced sanctions and collateral consequences are 

mandatory, and can result even though the offender had no intent to be in a drug-free 

zone, or knowledge he was in it.

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Drug-free zone laws were enacted intending to deter those who would sell drugs 

from being around children. But for deterrence to work the offender must know he is 

likely to be in a drug-free zone. Drug-free zones have become so ubiquitous, especially 

in densely populated cities that disparities in their enforcement affecting the poor and 

minorities occur. Some law enforcement agencies have exploited the state of affairs by 

using confidential informants to cause undercover drug transactions to transpire in 

drug-free zones, when they otherwise would not occur there. Finally, some traffic stops 

resulting in drug charges then morph into drug-free zone charges merely because of the 

location of the stop.1

The Sixth Court of Appeals decides here that 481.134(d) is not a separate 

offense from 481.112. Thus, the drug-free zone is not a separate element of an 

offense. Therefore, the Court holds that proof of a culpable mental state associated 

with the drug-free zone is not required. White v. State, No. 06-15-00078-CR (Tex. 

App. – Texarkana 2015) p. 6. It agreed with the Seventh Court of Appeals as it 

held in Bridges v. State, 454 S.W.3d 87, 88 (Tex. App.—Amarillo 2014, pet. 

1 These assertions are based in part upon the writer’s real-world experience in practicing criminal law for the last thirtythree years. However, a study which confirm these assertions includes, “Disparity by Design: How Drug Free Zone Laws 

Impact Racial Disparity – And Fail to Protect Youth,” A Justice Policy Institute Report Commissioned by The Drug Policy 

Alliance, Judith Greene, Kevin Pranis, Jason Ziedenberg, March, 2006. 

http://sentencingproject.org/doc/publications/sen_Drug-Free%20Zone%20Laws.pdf.

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ref’d). Also see Fluellen v. State, 104 S.W.3d 152, 166 (Tex. App.—Texarkana 

2003 no pet.). 

To support their holdings both the Sixth and Seventh Courts of Appeals 

relied upon this Court’s opinion in Uribe v. State, 573 S.W.2d 819, 821 (Tex. 

Crim. App. [Panel Op.] 1978). However, an analysis of Uribe shows its

resemblance to be tenuous. Uribe was a 1978 case where the Appellant was 

charged with unlawfully carrying a handgun on a premises licensed to sell 

alcoholic beverages in violation of Penal Code, Section 46.02(c). Uribe, at 820. 

On appeal the appellant challenged whether the indictment was 

fundamentally defective “in that it fails to allege that he knew the premises was 

licensed to sell alcoholic beverages, and further that the indictment fails to allege 

that it was licensed when he committed the offense.” Uribe, at 821. No motion to 

quash had been filed. The Court in Uribe decided that Section 46.02(c) which 

proscribes carrying the weapon into a licensed bar does not create an offense

separate from otherwise unlawfully carrying a weapon under 46.02(a). The Court 

said that, “its only effect is to raise the penalty when the offense is committed in a 

designated place. Thus the offense created by Subsections (a) and (c), supra, does 

not require a culpable mental state beyond that contained in Subsection (a).” Uribe 

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v. State, 573 S.W.2d 819, 821 (Tex. Crim. App. 1978). Uribe is distinguishable for

several reasons.

First, carrying a gun into a bar is different conduct from selling drugs in a 

drug-free zone. As a matter of notice it will be readily apparent that one has

entered a bar, whereas being in a drug-free zone is not so easily discernable. 

Second, state law requires that licensed bars place conspicuous and even bi-lingual 

warnings that entry with a firearm is prohibited and punishable as a higher degree 

of offense. See Tex. Alco. Bev. Code § 61.11. Third, the collateral consequences 

associated with drug-free zones are not applicable to offenses under 46.02(c). 

In conflict with the Sixth and Seventh Courts of Appeals are the Third Court 

of Appeals and the Fifth Court of Appeals. They have held that 481.112 and 

481.134(d) are separate offenses, and that the drug-free zone finding is a distinct 

element of the offense set forth in 481.134(d). Harris v. State, 125 S.W.3d 45, 50 

(Tex. App.—Austin 2003, pet. dism'd); Johnson v. State, 2007 Tex. App. LEXIS 

2098, *7, 2007 WL 806317 (Tex. App. Dallas Mar. 19, 2007 non-published). 

In Harris v. State, 125 S.W.3d 45, 50 (Tex. App.—Austin 2003, pet. dism'd) 

the Third Court of Appeals said, “The third degree felony under article 

481.134(d)(1) contains an element that the state jail felony lacks under section 

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481.112(a), (b). These are two separate and distinct offenses. The plain language 

of the two statutes, read individually or together, does not lead to absurd 

consequences and the language is not ambiguous.” Harris v. State, 125 S.W.3d 45, 

50 (Tex. App.—Austin 2003). In Johnson v. State, 2007 Tex. App. LEXIS 2098, 

*7, 2007 WL 806317 (Tex. App. Dallas Mar. 19, 2007 non-published) the Court 

construed section 481.134(d), and wrote: “Because the drug-free zone allegation 

was part of appellant's forbidden conduct and changes the degree of the offense, 

we conclude the trial court did not err in treating it as an element of the offense, 

rather than an enhancement, and proceeding accordingly.” Johnson v. State, 2007 

Tex. App. LEXIS 2098, *3, 2007 WL 806317 (Tex. App. Dallas Mar. 19, 2007

non-published). 

Incidentally, the Sixth Court of Appeals errs here in its reliance upon 

Williams v. State, 127 S.W.3d 442, 445 (Tex. App.—Dallas 2004) to support its 

holding. White id., p. 6. Williams concerned a constitutional challenge to a 

different section of the Health and Safety Code than is at issue here. The Court in 

Williams held, “Thus, the offense created by sections 481.112(a) and 481.134(c) 

does not require a culpable mental state beyond that contained in section 

481.112(c).” But the Statute at issue here is 481.134(d). This is important because 

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these statutes differ in whether the drug-free zone is determined at guilt/innocence, 

or at punishment.

Petitioner readily acknowledges that neither Harris nor Johnson squarely 

addressed the requirement of a culpable mental state on the drug-free zone finding. 

But, both decided that that the drug-free zone conduct in 481.134(d) creates a 

distinct offense, and not just an enhanced penalty range. As a separate element of a 

distinct offense the Penal Code mandates that an accompanying mental state

attach. 

Under Texas Penal Code section 6.02(a) a person commits no offense unless 

he engages in conduct as the definition of the offense requires, with some culpable 

mental state. Under Texas Penal Code section 6.02(b) if the definition of an 

offense prescribes no culpable mental state, a culpable mental state is nevertheless 

required unless the definition "plainly dispenses" with any mental element. 

Nothing in either sections 481.112 or 481.134(d) of the Health and Safety Code 

dispenses with the requirement of scienter as it relates to the drug-free zone 

element. 

The Penal Code defines “element of offense” to mean: “(A) the forbidden 

conduct; (B) the required culpability; (C) any required result; and (D) the negation 

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of any exception to the offense.” Texas Penal Code, Section 1.07 (22). The 

commission of the offense in a drug-free zone is the added forbidden conduct 

under 481.134(d). A culpable mental state is, therefore, required for that element. 

Without so much as a cursory examination of section 6.02 as requested in 

Petitioner’s brief on appeal, (Pet. Brief on Appeal p. 19), and as if by ipse dixit, the 

Sixth Court says, “Section 481.134 does not set forth a mens rea separate from the 

mens rea required to prove delivery of a controlled substance.” White, id., at p. 6. 

In this holding the Court errs. 

Noteworthy, and odd, is that the Health and Safety Code permits the drugfree zone issue to be decided either at the guilt/innocence phase under section 

481.134(d), or at the punishment phase under section 481.134(b). See Hastings v. 

State, 20 S.W.3d 786, 790 (Tex. App.—Amarillo 2000) which holds this choice is 

made by the State at its unfettered discretion. But, Harris v. State, 125 S.W.3d 45, 

52 (Tex. App.—Austin 2003) disagrees with this premise. The statutes give no 

direction on which procedure is to be followed, but the consequences from the 

choice are significant.

If the drug-free zone fact is determined at the punishment phase under 

481.134(b), the offense is “punishable” as a higher degree offense. Whereas, under 

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481.134(d), if the drug-free zone finding is made “at trial” the offense results in an 

actual conviction for the higher degree offense. Here the drug-free zone issue was 

submitted at the guilt/innocence phase of “trial” under 481.134(d). Appellant’s 

conviction was thus for a third degree felony, and not just punishable as a third 

degree felony. As a third degree felony conviction it was subject to enhancement 

under section Texas Penal Code section 12.42(a), and punished as a second degree 

felony. The choice, therefore, by the State to seek the drug-free zone finding from 

the jury at guilt/innocence, and then seek the enhancement at punishment, caused 

his range of punishment to increase from that of a third degree felony to a second 

degree felony. He was harmed because he was sentenced to fifteen years when his 

exposure should have been only up to ten.

If the State elects, as it did here, to seek the conviction for the higher offense 

under 481.134(d) at guilt/innocence then the State, as a matter of fairness, should 

have to prove a culpable mental state regarding that issue. In holding it does not, 

the Court of Appeals errs. Having erred in this respect, the Court never addressed 

the Petitioner’s claim that no evidence supported the jury’s verdict he delivered the 

methamphetamine, knowing he was in a drug-free zone.

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A significant conflict exists between the Courts of Appeals in Texas on 

whether under 481.134(d) a drug-free zone finding is an element of a separate

offense, and not just a punishment enhancement statute, requiring proof of a 

culpable mental state regarding that element. This Court should grant review to 

clarify which Court is correct.

Argument 

Grounds Two and Three: In this case the regular jury retired to deliberate 

guilt or innocence. The trial court admonished the alternate juror to continue to 

follow the rules previously given, and allowed the alternate to leave the court 

house. Before the jury reached a verdict it was discovered that one of the regular 

jurors was disqualified because she was on felony probation. This juror was 

removed and the alternate was summoned to return to the courthouse. The 

Petitioner made a timely objection to the seating of the alternate which was 

overruled. RR. Vol. 4 pp. 57-62. The Court of Appeals held that the Petitioner 

waived his right to appeal this issue by not requesting that the alternate be 

sequestered when the regular jury retired to deliberate. White v. State, 2015 Tex. 

App. LEXIS 11973 (Tex. App. Texarkana Nov. 23, 2015) p. 3. 

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In its published opinion the Court of Appeals holds that is okay for alternate 

jurors to leave the courthouse before the regular jury reaches a verdict. The Court of 

Appeals reasons that since the Petitioner did not request that the alternate be 

sequestered under article 35.23 of the Code of Criminal Procedure he waived his right 

to appeal this issue. The Court holds that his objection to seating the alternate juror 

could, therefore, not preserve the issue as error under Article 33.011. White v. State, 

No. 06-15-00078-CR (Tex. App. – Texarkana 2015), p. 2-3. 

The Court of Appeals errs in this holding because article 35.23 is not applicable 

to alternate jurors, apart from its application to the regular jury. Article 33.011 is the 

statute controlling the trial court’s procedures for alternate jurors prior to the regular 

jury’s verdict. None cited by the Court of Appeals support the application of article 

35.23 to sequestering alternate jurors. 

Under Article 33.011 an alternate juror may replace a regular juror prior to the 

jury reaching a verdict. As observed by this Court, the statute does not give the trial 

court guidance on whether the alternate juror is to be present and participate in the 

jury’s deliberations, or should be sequestered from the regular jury until called upon to 

serve. The presence of the alternate going with the regular jurors into the jury room, 

but not participating, however, has been disapproved. See Trinidad v. State, 312 

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S.W.3d 23 (Tex. Crim. App. 2010). Also see Castillo v. State, 319 S.W.3d 966 (Tex. 

App. Austin 2010). In Trinidad, this Court suggests that the other option is to 

“sequester” the alternate. This Court never suggested that the alternate should be 

allowed to leave. Nor has the Court ever suggested that a motion to sequester an 

alternate under Article 35.23 is required. 

Article 33.011 of the Texas Code of Criminal Procedure states that, “An 

alternate juror who does not replace a regular juror shall be discharged after the jury 

has rendered a verdict on the guilt or innocence of the defendant.” This Court has left 

the issue open on what a trial court is supposed to do with an alternate juror pending a 

verdict. This Court should grant review to clarify whether a trial judge should sua 

sponte sequester an alternate juror until a verdict is reached, or the alternate is seated on 

the jury. This should not be a decision left to the parties after the regular jury retires, as 

the Court of Appeals holds. 

Allowing an alternate juror to leave the courthouse while the regular jury 

deliberates creates several unnecessary risks that the alternate may become influenced 

by an outside source. Keeping the alternate juror under the watchful eye and protection 

of the trial court helps insure the integrity of the jury, and the availability of the juror to 

serve. Allowing the parties to decide whether an alternate stays or goes is an invitation 

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to juror disqualification from a plethora of unpredictable sources. This Court has 

never given guidance to trial judges on what to do with alternate jurors until the regular 

jury reaches a verdict. Allowing an alternate to leave the courthouse invites potential 

juror misconduct. The Court of Appeals errs in holding that to preserve the error in 

seating the alternate the Petitioner had to have moved to sequester the alternate prior to 

juror leaving the courthouse.

PRAYER FOR RELIEF

This Court should grant review. After review, the Court should remand the 

case back to the trial court for a new trial. 

APPENDIX

A copy of the opinion of the Court of Appeals is attached.

RESPECTFULLY SUMITTED,

____________________

Steven R. Miears

211 North Main

Bonham, Texas 75418

Stevemiears@msn.com

Tel. 903-640-4963

Fax: 903-640-4964

State Bar Card No. 14025600

Attorney for Petitioner

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 steve miears
Certificate of Service

This is to certify that a true and correct copy of the above and foregoing 

Petition for Discretionary Review was delivered by electronic e-filing to Richard 

E. Glaser, Fannin County Criminal District Attorney; 101 East Sam Rayburn Drive; 

Bonham, Texas 75418; on December 8, 2015; and to the State Prosecuting Attorney, 

LISA C. McMINN, P.O. Box 13046, Capitol Station, Austin, Texas 78711 by 

electronic e-filing, and that a copy was mailed to the Petitioner, William White.

_________________________________

Steven R. Miears

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 steve miears
CERTIFICATE OF WORD COUNT

Counsel for the Petitioner certifies that the word count of this brief is less than 

4,056 words and within the limitations for length of petitions for discretionary 

review. 

_________________________

Steven R. Miears

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 steve miears
In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-15-00078-CR

WILLIAM DEWAYNE WHITE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 336th District Court

Fannin County, Texas

Trial Court No. CR-14-25152

Before Morriss, C.J., Moseley and Burgess, JJ.

Opinion by Justice Moseley
2

O P I N I O N

The jury found that William Dewayne White knowingly delivered less than one gram of 

methamphetamine in a drug-free zone, a third degree felony.1 After the trial court found one of 

the State’s enhancement allegations “true,” White was sentenced to fifteen years’ imprisonment. 

On appeal, White argues (1) that the trial court erred in recalling and seating an alternate 

juror who was allowed to leave the courtroom after the charge was read to the jury, (2) that the 

statute for the offense is unconstitutional because it fails to require a culpable mental state, and 

(3) that while the evidence was sufficient to show that he delivered a controlled substance, it was 

insufficient to support a finding that he delivered the controlled substance while knowingly being 

in a drug-free zone. We find that White failed to preserve his first two issues for appeal and that 

the State was not required to prove that White’s knowing delivery of methamphetamine occurred 

while he knew he was in a drug-free zone. Accordingly, we affirm the trial court’s judgment. 

I. Complaint Involving Alternate Juror Is Unpreserved 

Following voir dire, which resulted in the seating of an alternate juror, the trial court 

provided comprehensive instructions to the jury that, among other things, warned them not to 

discuss the case with others or perform any individual investigation. After closing arguments, the 

trial court held the alternate juror and retired the remaining jurors to deliberate. The trial court 

then allowed the alternate juror to leave the courtroom, but reminded him that he was subject to 

 

1See TEX. HEALTH & SAFETY CODE ANN. § 481.112(b) (West 2010); Act of May 13, 2011, 82d Leg., R.S., ch. 170, 

§ 6, 2011 Tex. Gen. Laws 707, 712 (amended 2015) (current version at TEX. HEALTH & SAFETY CODE ANN. 

§ 481.134(d) (West Supp. 2015)).
3

recall and was to “follow all of the rules that [had] been in place.” Neither White nor the State 

objected to the trial court’s decision to allow the alternate juror to leave the courtroom. 

As the jury was deliberating, the trial court discovered that one of the jurors, Marie Cooper, 

was on felony community supervision for a theft offense.2 The trial court decided to release 

Cooper and recall the alternate juror. White then made the following objection:

Your Honor, for purposes of the record, we would object. I know [the alternate 

juror] has been here throughout the whole trial; however, Ms. Cooper has been in 

and out of the jury room. Who knows what they have already discussed since they 

have been in deliberations now for a little over 30, 45 minutes. We would object 

to removal. I think it prejudiced the defendant in this case and we would ask -- first 

we would object to substituting the jurors, and then we will ask that Ms. Cooper be 

removed and ask for a mistrial, as well.

On appeal, White argues that the trial court erred in failing to sequester the alternate juror and in 

allowing him to leave the courtroom.3 The State argues that White’s point of error is not preserved. 

We agree. 

A trial court is permitted to allow the jury to separate after the court’s charge is read “unless 

the court or a party makes a motion to sequester the jury or a party timely objects to a request to 

separate.” Sanchez v. State, 906 S.W.2d 176, 178 (Tex. App.—Fort Worth 1995, pet. ref’d & pet. 

dism’d) (citing Krueger v. State, 843 S.W.2d 726, 728 (Tex. App.—Austin 1992, pet. ref’d)

(per curiam)); see TEX. CODE CRIM. PROC. ANN. art. 35.23 (West 2006). “Therefore, the defendant 

 

2See TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(3) (West 2006). 

3Article 33.011 of the Texas Code of Criminal Procedure states, “An alternate juror who does not replace a regular 

juror shall be discharged after the jury has rendered a verdict on the guilt or innocence of the defendant . . . .” TEX.

CODE CRIM. PROC. ANN. art. 33.011 (West Supp. 2014). Citing to this Article, White argues that the alternate juror 

was discharged and then permitted to return. However, it is clear that the alternate juror was specifically informed 

that he could be recalled and was, in fact, recalled before the jury rendered its verdict. Thus, the alternate juror was 

never discharged under Article 33.011. 
4

must either timely file a motion to sequester or timely object to a request to separate to preserve 

for appeal a complaint that the trial court deprived the defendant of the right to have the jury 

sequestered.” Sanchez, 906 S.W.2d at 178; see Polk v. State, 367 S.W.3d 449, 454 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d); Callen v. State, 303 S.W.3d 322, 326 (Tex. App.—Eastland 

2009, pet. ref’d). A timely objection is one that is made at the earliest possible opportunity or one 

“‘that is made before jury deliberations begin or before the jury asks to separate.’” Sanchez, 906 

S.W.2d at 178 (quoting Keiser v. State, 880 S.W.2d 222, 223 (Tex. App.—Austin 1994, pet. 

ref’d)). Further, Rule 33.1 of the Texas Rules of Appellate Procedure states, 

As a prerequisite to presenting a complaint for appellate review, the record must 

show that:

(1) the complaint was made to the trial court by a timely request, 

objection, or motion that: 

(A) stated the grounds for the ruling that the complaining party 

sought from the trial court with sufficient specificity to make the trial court 

aware of the complaint, unless the specific grounds were apparent from the 

context; and 

. . . .

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly 

or implicitly; or

(B) refused to rule on the request, objection, or motion, and the 

complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a). 

Our review of the record demonstrates that White failed to raise any objection when the 

trial court permitted the alternate juror to leave. Even after the alternate juror’s return, White’s 
5

objection to the trial court was related to the removal of Cooper, not to the trial court’s failure to 

sequester the alternate juror. Thus, we conclude that White raised no timely and specific objection 

to the trial court’s failure to seat a non-sequestered alternate juror. Accordingly, we overrule 

White’s first point of error. 

II. White Failed To Preserve Any Constitutional Challenge to Section 481.134

In his second point of error, White argues that Section 481.134(d) of the Texas Health and 

Safety Code is facially unconstitutional because it “fail[s] to provide for a culpable mental state 

for the drug free zone finding.” This issue is not preserved. 

The Texas Court of Criminal Appeals has held “that a defendant may not raise for the first 

time on appeal a facial challenge to the constitutionality of a statute.” Karenev v. State, 281 S.W.3d 

428, 434 (Tex. Crim. App. 2009).

4

 In his appellate brief, White admits that he raised no complaint 

at trial relating to the constitutionality of Section 481.134(d). Accordingly, White has failed to 

preserve his complaint for our review. See id.; Ibenyenwa, 367 S.W.3d at 422; Williams v. State, 

305 S.W.3d 886, 893 (Tex. App.—Texarkana 2010, no pet.); Sony v. State, 307 S.W.3d 348, 353 

(Tex. App.—San Antonio 2009, no pet.); see also Fluellen v. State, 104 S.W.3d 152, 167–68 (Tex. 

App.—Texarkana 2003, no pet.). We overrule White’s second point of error.

 

4White acknowledges the holding in Karenev, but contends that it “should not be the law. . . [because it] was a plurality 

opinion.” “Although the four-judge concurrence in Karenev held that the requirement that a facial challenge to a 

statute be preserved is not absolute, the five-judge majority plainly stated that . . . ‘a defendant may not raise for the 

first time on appeal a facial challenge to the constitutionality of a statute.’” Ibenyenwa v. State, 367 S.W.3d 420, 422 

(Tex. App.—Fort Worth 2012, pet. ref’d) (quoting Karenev, 281 S.W.3d at 434). “We are bound to follow the majority 

opinion in the absence of language adopting the concurrence.” Id. 
6

III. The State Was Not Required To Prove that White Was Knowingly in a Drug-Free 

Zone

During trial, the jury heard evidence that White sold 0.24 grams of methamphetamine to a 

confidential informant. The drug transaction was captured on an audio/video recording and was 

played for the jury. The jury also heard testimony that the transaction took place within 1,000 feet 

of the Family Life Center, a drug-free zone. White does not argue that the evidence is insufficient 

to establish that he knowingly delivered methamphetamine. Instead, he argues that the State failed 

to prove that White was knowingly in a drug-free zone at the time of the transaction. 

Section 481.134(d) of the Texas Health and Safety Code raises the level of offense for 

delivery of a controlled substance “if it is shown on the trial of the offense that the offense was 

committed: (1) . . . within 1,000 feet of any real property that is . . . the premises of a public or 

private youth center . . . .” TEX. HEALTH & SAFETY CODE ANN. § 481.134(d); see Harris v. State, 

125 S.W.3d 45, 51 (Tex. App.—Austin 2003, pet. ref’d, untimely filed). Section 481.134 does not 

set forth a mens rea separate from the mens rea required to prove delivery of a controlled substance. 

Thus, “a good deal of authority holds that . . . the State need not prove a culpable mental state with 

respect to the location of the offense.” Bridges v. State, 454 S.W.3d 87, 88 (Tex. App.—Amarillo

2014, pet. ref’d) (citing Uribe v. State, 573 S.W.2d 819, 821 (Tex. Crim. App. [Panel Op.] 1978));

see Williams v. State, 127 S.W.3d 442, 445 (Tex. App.—Dallas 2004, pet. ref’d). Because the 

State was not required to prove that White’s knowing delivery of a controlled substance occurred 

while he was knowingly within a drug-free zone, we overrule White’s final point of error. 
7

We affirm the trial court’s judgment. 

Bailey C. Moseley

Justice

Date Submitted: November 20, 2015

Date Decided: November 23, 2015

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