I concur in the judgment of the majority. I write separately to address the seeming expansion of Malik⁽¹⁾ to punishment. Ante, slip op. at 3 ("While [Malik], as written, applies only to the elements of the offense necessary to sustain a conviction, Malik's principles apply equally to the affirmative findings necessary to sustain the imposition of an enhanced punishment after conviction.").

In Malik, we held:

[S]ufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be 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. [Footnote omitted.] This standard can uniformly be applied to all trials, whether to the bench or to the jury, whether or not the indictment is facially complete, and regardless of the specific wording of the jury charge actually given. Moreover, the standard we formulate today ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted.

Malik, 953 S.W.2d at 240. (Emphases added.) Malik specifically employs the hypothetically-correct jury charge at the guilt/innocence phase, but is silent as to application in the punishment phase. Indeed, the rationale of Malik is based on the state's burden of proof as to the crime, and is ill-suited to the punishment phase, where there is no similar burden on the state as to the appropriate sentence.

Although the finding that the offense was committed in a drug-free zone affects punishment, it is not part of the punishment phase of trial, but describes an element of the particular offense for which appellant was tried, thus is properly included in the guilt/innocence phase. The language of Texas Health & Safety Code 481.134(c) mandates that evidence proving that the offense was committed in one of the designated areas be presented "on the trial of the offense."⁽²⁾ Tex. Health & Safety Code Ann. 481.134(c) (Vernon 1997).

When a statute is clear and unambiguous, we should apply the plain meaning of its words, unless the plain meaning leads to absurd results. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). Prior to 1995, 481.134(b) provided for increased penalties if it was shown "on the trial of the offense" that the offense was committed in a designated area. See ante, slip op. at 5. When subsection (c) was added in May, 1995,⁽³⁾ it used the same language as subsection (b) requiring that proof be shown "on the trial of the offense." Id. at 6. Effective September 1, 1995,⁽⁴⁾ the legislature amended subsection (b) to specifically provide that evidence be presented "at the punishment phase." Id. at 7; Tex. Health & Safety Code Ann. 481.134(b) (Vernon 1997). However, no such amendment was made to subsections (c) - (f), which became effective just three months earlier. Had the legislature wanted to amend the language of subsection (c) to similarly require proof to be presented at the punishment phase, it could have easily so done. Accordingly, it appears that the legislature intended that, under subsection (c), proof that the offense was committed in a drug-free zone continue to be presented "on the trial of the offense," i.e., during the guilt/innocence phase. See Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App. 1991).

The general rule for enhancement for most types of drug-free zones is found in 481.134(b), which is applicable to institutions of higher learning, playgrounds, youth centers, public swimming pools and video arcade facilities. Subsections (c) - (f) provide specific enhancements for offenses committed in proximity to a school, school property, or on a school bus. As acknowledged by the majority, the legislature clearly and specifically intended to treat school premises differently. See ante, slip op. at 9. Thus, the legislature could also have intended to treat proof of the location of the offense differently; proof that the offense was committed in a designated area under subsection (b) is to be shown at the punishment phase, while proof that the offense was committed within the drug-free zones surrounding schools or school property or on a school bus (subsection (c)) is to be shown at the trial of the offense, i.e., at the guilt/innocence phase. Therefore, application of the statute's plain language does not lead to absurd results.

Because a finding that the offense was committed in a drug-free zone surrounding a school is a proper consideration at the guilt/innocence phase, Malik need not be expanded to punishment, as the majority appears to do. Therefore, I concur only in the judgment of the majority.

Johnson, J.

Date Delivered: March 22, 2000

Publish

1. Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997).

2. The minimum term of confinement or imprisonment for an offense otherwise punishable under Section 481.112(c) . . . is increased by five years and the maximum fine for the offense is doubled if it is shown on the trial of the offense that the offense was committed:

(1) in, on, or within 1,000 feet of premises of a school; or

(2) on a school bus.

(Emphasis added.) Tex. Health & Safety Code Ann. 481.134(c) (Vernon 1997).

3. 481.134 (c) - (f), were added through S.B. 1, which was approved by the Legislature on May 27, 1995. Because the bill was to take effect immediately under the provisions of an emergency clause, it became effective upon approval of the governor, which occurred on May 30, 1995. Act of May 27, 1995, 74^th Leg., R.S., ch. 260, 39, 1995 Tex. Gen. Laws 2207, 2488.

4. Amended by S.B. 15, which was approved by the Legislature on May 29, 1995, with the effective date of September 1, 1995. Act of May 29, 1995, 74^th Leg., R.S., ch. 318, 38, 1995 Tex. Gen. Laws 2734, 2746.