COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00213-CR

CEDRIK PIERT APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Cedrik Piert of delivery of less than one gram of 

cocaine in a drug-free zone.2 Upon his plea of true at the trial on punishment, 

the jury found the enhancement allegations true and assessed his punishment at 

 1

See Tex. R. App. P. 47.4.

2

See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), .112(a)–(b) (West 

2010), § 481.134(b), (d) (West Supp. 2013).
2

sixty-five years’ confinement and a $10,000 fine. The trial court sentenced him 

accordingly.

In two issues, Appellant challenges the sufficiency of the evidence to 

support the jury’s verdict of guilt of delivery of less than one gram of cocaine and 

the jury’s verdict that he committed the offense within a drug-free zone. Because 

we hold that the evidence is sufficient to support the jury’s verdict in both 

instances, we affirm the trial court’s judgment.

Summary of the Facts

Two police officers made an undercover buy of cocaine at a Valero gas 

station. One of the officers asked the suspect his name, and he replied that his 

name was Solo. After the purchase was complete, the suspect walked towards

some apartments and into a breezeway. The undercover officers drove off and

notified uniformed officers to make the arrest. The uniformed officers were 

delayed at a signal light, however, and when they arrived at the location where 

the suspect was last seen, they were unable to find him.

The next day, the undercover officers returned to the Valero station to look 

for the suspect. When they spotted Appellant, the officers called uniformed 

officers and gave them a description of him. When the uniformed officers 

arrived, they spoke with Appellant while the undercover officers drove down the 

same side of the street and identified him as the person from whom they had 

bought the cocaine the day before. One of the undercover officers, Detective 

Jennifer Mamola, obtained an arrest warrant, and Appellant was arrested.
3

Sufficiency of the Evidence

Standard of Review

In our due-process review of the sufficiency of the evidence to support a 

conviction, we view all of the evidence in the light most favorable to the verdict to 

determine whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.3

 This standard gives full play 

to the responsibility of the trier of fact to resolve conflicts in the testimony, to 

weigh the evidence, and to draw reasonable inferences from basic facts to 

ultimate facts.4

The trier of fact is the sole judge of the weight and credibility of the 

evidence.5

 Thus, when performing an evidentiary sufficiency review, we may not 

re-evaluate the weight and credibility of the evidence and substitute our judgment 

for that of the factfinder.6

 Instead, we determine whether the necessary 

inferences are reasonable based upon the cumulative force of the evidence 

when viewed in the light most favorable to the verdict.7

 We must presume that 

 3

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).

4

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350 

S.W.3d 588, 595 (Tex. Crim. App. 2011).

5

See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393

S.W.3d at 768.

6

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
4

the factfinder resolved any conflicting inferences in favor of the verdict and defer 

to that resolution.8

We measure the sufficiency of the evidence by the elements of the offense 

as defined by the hypothetically correct jury charge for the case, not the charge 

actually given.9

 Such a charge is one that accurately sets out the law, is 

authorized by the indictment, does not unnecessarily restrict the State’s theories 

of liability, and adequately describes the particular offense for which the 

defendant was tried.10 The law as authorized by the indictment means the

statutory elements of the charged offense as modified by the factual details and 

legal theories contained in the charging instrument.11

Delivery

In his first issue, Appellant contends that the evidence is insufficient to 

support his conviction for delivery of less than a gram of a penalty group 1 

substance. He argues that conflicts in the testimony of the two undercover 

 7

Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see 

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

8

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Temple, 390 S.W.3d at 360.

9

Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v. 

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v. State, 389 

S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime 

are determined by state law.”).

10Byrd, 336 S.W.3d at 246.

11See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013); 

Curry v. State, 30 S.W.3d 394, 404–05 (Tex. Crim. App. 2000).
5

officers undermine the sufficiency of the evidence, especially the identity of the 

seller of the cocaine. Both undercover officers testified at trial, and both 

identified Appellant as the man who sold them the cocaine. Detective Chau

Nguyen testified that he knew that the suspect and Appellant were one and the 

same because on the day of Appellant’s arrest, he wore the same clothes that 

the suspect had worn the previous day. Specifically, the person from whom the 

officers purchased drugs was a black male, a little over six feet tall and of a thin 

build, who was wearing a black or navy blue T-shirt and khaki or beige shorts 

and had a Bluetooth earpiece. Detective Mamola also testified that when 

Appellant was arrested, he was wearing the same clothes as the person from 

whom she had bought cocaine the previous night. She described the man as a 

black male, approximately six feet tall, who was wearing a black tank and jean 

shorts and had a Bluetooth earpiece.

A reviewing court must defer to the trier of fact’s responsibility to resolve 

conflicts in testimony, such as two-way evidence, and to draw reasonable 

inferences from basic facts to ultimate facts.12 We do not reevaluate the weight 

and credibility of the evidence. We only ensure that the jury reached a rational 

decision.13 Considering the record as a whole, we must hold that the jury’s 

 12Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

13Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).
6

decision was rational and that the evidence is sufficient to support it. We 

overrule Appellant’s first issue.

Drug-Free Zone Enhancement

An offense otherwise punishable as a state jail felony under section 

481.112 of the Texas Health and Safety Code is punishable as a third-degree 

felony if it is shown during trial that the offense was committed “in, on, or within 

1,000 feet of . . . a public or private youth center.”

14 A “[y]outh center” is “any 

recreational facility or gymnasium that . . . is intended primarily for use by 

persons who are 17 years of age or younger” and “regularly provides athletic, 

civic, or cultural activities.”

15

The indictment alleged in pertinent part that Appellant had delivered the 

cocaine to Detective Mamola “in, on, or within 1,000 feet of the premises of a 

private youth center, namely, ASI Gym, to-wit: 4051 Rosemeade Parkway, 

Dallas, Denton County, Texas.” The facility is a gymnastics center where youth

are taught to do gymnastics. The jury returned an affirmative finding regarding 

the drug-free zone special issue. The evidence, however, showed that the actual 

name of the facility was ASI Gymnasium and that it was located across the street 

from and within 1,000 feet of the Valero station, but it was in Collin County, not 

Denton County. In his second issue, Appellant contends that because it was 

 14Tex. Health & Safety Code Ann. § 481.134(b).

15Id. § 481.134(a)(7).
7

impossible for the State to prove its allegations, the evidence is insufficient to 

prove the offense enhancement allegation that the delivery occurred in a drugfree zone.

We see little difference between “Gymnasium” and “Gym.” The slight 

variation between the name of the facility and its name on the indictment is 

sufficiently similar to slight variations in names of complainants to fall within the 

same applicable rule. In Fuller v. State,

16 the indictment alleged that the 

defendant committed the offense against “Olen M. Fuller,” who was his father. 

The prosecution proved that the defendant injured his elderly father by hitting him 

in the face with his fist. During trial, however, the father was referred to only as 

“Mr. Fuller” or as “Buddy.” The prosecution presented no evidence that the 

father was “Olen M. Fuller.” Consistent with the indictment’s allegation, the jury

charge instructed the jury to convict if it found that appellant committed the 

offense against “Olen M. Fuller.” The Texas Court of Criminal Appeals 

explained,

The federal constitutional issue in this case is whether the victim’s 

name is a substantive element of the criminal offense as defined by state 

law. State law, in relevant part, defines “element of the offense” as the

forbidden conduct with the required culpability. State law in Section 

22.04(a)(3) further defines the offense as “injury to an elderly individual.” 

State law does not define the victim’s name as a substantive element of 

the offense by, for example, defining the offense as “injury to an elderly 

individual named Olen M. Fuller.”

 1673 S.W.3d 250, 251 (Tex. Crim. App. 2002).
8

The prosecution’s failure to prove the victim’s name exactly as 

alleged in the indictment does not, therefore, make the evidence 

insufficient to support appellant’s conviction under Jackson v. Virginia. 

The evidence that appellant injured the elderly victim by hitting him in the 

face with his fist satisfies the Jackson v. Virginia standard because it 

constitutes proof of every fact necessary to constitute the crime charged of 

“injury to an elderly individual.”

We must now decide whether the evidence was sufficient to support

appellant’s conviction under Gollihar’s state law sufficiency standard. In 

addressing this claim, we must recognize that Gollihar also decided that a 

materiality inquiry should be made in all cases, like this one, that involve a 

“sufficiency of the evidence claim based upon a variance between the 

indictment and the proof” and that only a “material” variance will render the 

evidence insufficient. In making a materiality inquiry applicable to all 

variance cases, Gollihar criticized our decision in Pedrosa v. State, a 

similar variance case, which did not apply a materiality inquiry to the 

prosecution’s failure to prove the victim’s name exactly as alleged in the 

indictment.

Gollihar also decided that this “materiality” inquiry requires a 

determination of whether the variance deprived the defendant of notice of 

the charges or whether the variance subjects the defendant to the risk of 

later being prosecuted for the same offense. And, finally, Gollihar also 

decided that a “hypothetically correct jury charge” takes into consideration 

the material variance doctrine, meaning that “[a]llegations giving rise to 

immaterial variances may be disregarded in the hypothetically correct 

charge, but allegations giving rise to material variances must be included.”

In this case, the prosecution’s failure to prove the victim’s name 

exactly as alleged in the indictment does not make the evidence 

insufficient under Gollihar. The victim’s name is not a statutory element of 

the offense.17

If the State can go that far wrong in proving the name of the complainant, 

and if the name of the complainant is so completely irrelevant to the pleading and 

the proof, we would be hard-pressed to hold that pleading “Gym” rather than 

 17Id. at 252–54 (citations and footnotes omitted).
9

“Gymnasium” in the name of a youth center that provides the drug-free zone 

element of an enhancement paragraph is sufficiently significant to require 

reversal of the conviction. Had there been evidence of another location with a 

similar name that qualified as a youth center but that was outside the 1,000-foot 

zone, our analysis perhaps would have been different. Here, there is nothing to 

suggest that pleading the wrong name deprived Appellant of notice of the charge 

against him, caused so much confusion that it impinged on his ability to prepare 

an adequate defense at trial, or subjected him to being prosecuted again for the 

same offense.18

The variance between the county alleged as the location of the youth 

center (Denton) and the evidence of the actual county in which the youth center

is located (Collin) is likewise immaterial, given that (1) the street address of the 

youth center was provided in the indictment and (2) there was no evidence that 

another youth center was located within 1,000 feet of the Valero gas station 

where Appellant sold cocaine to the undercover officers.19 Consequently, we are 

compelled to overrule Appellant’s second issue.

 18See id.

19See id.; Drouillard v. State, No. 02-04-00097-CR, 2005 WL 737019, at *1 

(Tex. App.—Fort Worth Mar. 31, 2005, no pet.) (mem. op., not designated for 

publication) (holding variance between enhancement allegation elevating driving 

while intoxicated to a felony and the evidence thereof immaterial when Drouillard 

could not have been misled that State was alleging a different offense and the 

proof of the cause number, date, and trial court related to the enhancing offense 

matched the allegation).
10

Conclusion

Having overruled Appellant’s two issues on appeal, we affirm the trial 

court’s judgment.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT 

JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH

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

DELIVERED: June 5, 2014