Curlee v. State

• Decision Date: 14 April 2021
• Docket Number: NO. PD-0624-20,PD-0624-20
• Citation: 620 S.W.3d 767
• Parties: Dallas Shane CURLEE, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

620 S.W.3d 767

Dallas Shane CURLEE, Appellant

v.The STATE of Texas

NO. PD-0624-20

Court of Criminal Appeals of Texas.

Delivered: April 14, 2021

Luis A. Martinez, for Appellant.

Douglas K. Norman, for State.

OPINION

Walker, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Newell, Keel, Slaughter, and McClure, JJ., joined.

Dallas Shane Curlee, Appellant, was convicted of possession of a controlled substance within 1,000 feet of a drug-free zone, namely, a playground. Appellant challenges the sufficiency of the evidence showing a playground, specifically, the requirement that the playground was "open to the public."

The evidence germane to the "open to the public" element consisted of the fact that the playground was surrounded by a chain link fence that was not completely locked, an officer's conclusory testimony that the playground was open to the public, the playground's location on the premises of a church, and the fact that the playground could be seen through the fence. We conclude that a rational jury could not conclude, beyond a reasonable doubt, that the playground was "open to the public" based on the evidence presented at trial. The evidence is insufficient to support the "open to the public" element of a playground, and we reverse the judgment of the court of appeals.

I — Background

Appellant's friend, Hillary Hammond, drove her van to the Jackson County Jail to visit an inmate. She parked the van on the street in front of the jail, and Appellant waited inside the van. Hammond brought into the jail a plastic bag which held five boxes of contact lenses. Jail Sergeant Dave Thedford searched the bag and found, in one of the boxes of contact lenses, four razor blades such as those used in box cutters. Thedford took the razor blades to Jail Captain James Omecinski, who in turn reported the incident to Jackson County Sheriff's Investigator Gary Smejkal. Hammond was arrested for bringing contraband into the jail. Smejkal interviewed Hammond, and she claimed that the blades were for the box cutter on her keychain. Hammond said she purchased the blades along with several other items from Wal-Mart a few days earlier, and the receipt for the purchase was in her van.

Smejkal felt it was necessary to have the receipt to verify Hammond's story, so he and Omecinski escorted Hammond to her van. Hammond asked if the van could be released to Appellant, who was sitting on the rear bench seat. Smejkal agreed, and he asked Appellant for his driver's license to determine whether the license was valid and whether there were any warrants. After discovering an outstanding arrest warrant for Appellant, Smejkal handcuffed Appellant and placed him under arrest. There being no one the van could be released to, the van had to be towed and impounded.

Pursuant to sheriff's office policy, Smejkal conducted an inventory search of the van. During the search, Smejkal found a black baseball cap. The cap was located on the floor of the van in front of the rear bench seat where Appellant had been seated. The cap was upside down and held a pack of Marlboro cigarettes, Appellant's cell phone, a propane torch lighter, a glass pipe, a syringe, a Recon 1 folding pocketknife, and a scratch-off lottery ticket. Inside the pack of cigarettes were three small, yellow bags that contained a white crystalline substance. A brown purse belonging to Hammond was found between the front seats of the van. The purse contained some cash, a glass pipe, a plastic baggie containing almost a gram of methamphetamine, and several small empty baggies. Jessica Greene, a forensic scientist at the Corpus Christi Department of Public Safety Laboratory, tested the substance in one of the baggies that were inside the cigarette pack, and she identified the substance as methamphetamine with a net weight of 1.49 grams.¹

A church with a playground was on the next block across the street from the jail where Hammond's van was parked. Smejkal performed a Google Maps search which indicated the distance between the van and the playground was 547.38 feet. Smejkal also used a rolling tape measure to determine the distance between the van and the playground, and he recorded a distance of 539.2 feet. A chain link fence surrounded the church playground, and the chain link fence included four gates.² Three of the gates were not locked. The first unlocked gate was between the main church building and the meeting hall or dining room.³ The second unlocked gate stood between the playground area and a storage building.⁴ The third unlocked gate was actually incapable of being locked; there was no post for the yoke on the gate.⁵ Instead, the yoke simply rested against the brick wall of the church building. This unlockable gate was accessible from a walkway between two of the church buildings.⁶ The walkway itself was accessible by a metal gate locked with a single cylinder deadbolt lock.⁷ The fourth gate in the fence surrounding the playground, between the playground and the street, was locked with a padlock.⁸

Smejkal entered the playground area through the first unlocked gate, which is shown in State's Exhibit 35. From the playground, Smejkal went through the unlockable gate shown in State's Exhibit 34 into the narrow walkway, where he unlocked the deadbolt locked gate from the inside, as seen from State's Exhibit 37. Smejkal then exited the gate, closed it, and then locked the gate from the outside, as seen from State's Exhibit 39, by reaching his hand through the gate and locking the deadbolt. Implicitly, Smejkal would have been able to gain access to the playground through the deadbolt locked gate shown in State's Exhibit 39 by reaching through the gate, unlocking the deadbolt, going through the narrow walkway, and opening the unlockable gate shown in State's Exhibit 34.⁹

Appellant was charged by indictment with possession of 1–4 grams of methamphetamine in a drug-free zone, a third-degree felony, based on Hammond's van being within 1,000 of the church playground. Following a two-day trial and Appellant's plea of "True" to enhancement paragraphs alleging prior felony convictions, the jury found Appellant guilty and assessed a sentence of twenty years’ imprisonment.

On appeal, Appellant challenged the sufficiency of the evidence of a drug-free zone. Curlee v. State , ––– S.W.3d ––––, No. 13-19-00237-CR, 2020 WL 3116332, at *1 (Tex. App.—Corpus Christi–Edinburg 2020).¹⁰ The court of appeals found the evidence sufficient based on evidence that the playground was either 547.38 feet away or 539.2 feet away from the van; "none of the various gates to the playground were locked except one;"¹¹ "only one of [the entrances to the playground] is capable of being locked;"¹² and the playground contained two slides, a playscape, a tube, and monkey bars. Id. at *3–4. Accordingly, the court of appeals determined that the play area met the statutory definition of a "playground." Id.

We granted Appellant's petition for discretionary review, which raised three grounds questioning the court of appeals's conclusion that the evidence was sufficient to show the playground was "open to the public."¹³

II — Sufficiency of the Evidence

In assessing the sufficiency of the evidence to support a criminal conviction, reviewing courts "consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Alfaro-Jimenez v. State , 577 S.W.3d 240, 243–44 (Tex. Crim. App. 2019) (quoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ); Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence must be sufficient to establish each element of the offense. Lee v. State , 537 S.W.3d 924, 926 (Tex. Crim. App. 2017).

The sufficiency of the evidence is measured by comparing the evidence produced at trial to "the essential elements of the offense as defined by the hypothetically correct jury charge." Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. The law "authorized by the indictment" consists of the statutory elements of the offense as modified by the indictment allegations. Curry v. State , 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

III — Analysis

The indictment in Appellant's case alleged that he did:

intentionally and knowingly possess a controlled substance, to-wit: Methamphetamine, in an amount by aggregate weight of more than 1 gram but less than 4 grams and said offense occurred in, on or within 1,000 feet of a playground, to-wit: First United Methodist Church, 216 W. Main Street, Edna, Jackson County, Texas.¹⁴

The indictment thus charged Appellant with violating the "Offense: Possession of Substance in Penalty Group 1" statute, Health and Safety Code § 481.115, which provides, in pertinent part:

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

TEX. HEALTH & SAFETY CODE Ann. §§ 481.115(a), 481.102(6) ("Penalty Group 1 consists of ... (6) Methamphetamine...."). The allegation that Appellant possessed one to four grams sets the degree of the offense:

(c) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.

Id. § 481.115(c).

...