(1) “Under the Drug Free Zone statute, is an area with play equipment presumed to be ‘open to the public’ freeing the State from having to produce legally sufficient evidence at trial?”
(2) “Did the 13th Court of Appeals err by improperly analyzing the record for legally sufficient evidence proving that the ‘playground’ was “open to the public” under the Drug Free Zone statute?”
(3) “Did the 13th Court of Appeals err in finding that the area where it was alleged that Petitioner possessed drugs was a ‘playground’ as defined by the Drug Free Zone statute?”
Curlee possessed methamphetamine within 1,000 feet of a church playground. At trial and on appeal, Curlee challenged the State’s Drug Free Zone enhancement. To qualify as a drug free zone under Tex. Health & Safety Code § 481.134(a)(3), a playground must, among other things, be “open to the public.”
In rejecting Curlee’s challenge, the court of appeals noted that, in addition to being a church playground, it was surrounded by a large grassy area “fenced with multiple entrances, only one of which was capable of being locked.”
Curlee cites another court of appeals that rejected a presumption that a playground is open to the public. He contends the statute requires actual proof (such as use by the public, ownership by a public institution, or location on public land) and the court of appeals’s analysis failed to properly address the issue. Referencing trespass law, he argues that ability to access a fenced-in area is not a public invitation to use the facility.