The Prosecutor, May-June 2008, Volume 38, No. 3

Drug-free zones

2008
The dangers of allowing drug dealers to hawk their wares around our children are plainly evident. Here’s how to use an important tool to keep drug offenders in prison and off the streets.

In every prosecutor’s office, drug cases make up a significant portion of the workload. Everyone in law enforcement knows that the use and distribution of drugs is the root cause of many other offenses we handle, and dealing effectively with these cases directly impacts the community’s safety and well-being and reduces the number of other offenses. However, because most drug offenses do not fit within the parameters of Art. 42.12, Section 3g, Texas Code of Criminal Procedure, keeping drug offenders in prison is becoming increasingly difficult.

One tool assists prosecutors in their quest for a meaningful prison term for drug offenders: an affirmative finding that the offense was committed in a drug-free zone (DFZ). The DFZ finding can, in many cases, rival a deadly weapon finding in effectiveness.

Unfortunately, the statute governing DFZs (Health & Safety Code §481.134) reads like the tax code and is often the source of much folklore and urban legends. Being cognizant of the statute’s variables and how they apply to your facts is the key to using it successfully. In turn, applying this statute to a drug case will greatly enhance your ability to protect your community’s most valuable resource, our children, while discouraging your community’s criminal element.

Definitions

For the purposes of this article, I will refer to the area that creates the drug free zone as the “source location.”

While most terms used in this section have their common meaning, there are some special issues contained in §481.134(a). The term “institution of higher education” covers most colleges and post-high school technical institutions. The additional definition of “or any other agency of higher education of as defined by §61.003, Education Code” does not add much but does include some places that may not commonly be thought of as a place of higher learning.1

“Playground” is a term that has led to some litigation. The statute provides that a playground is any outdoor facility not on the premises of a school that is intended for recreation, is open to the public, and contains three or more separate apparati intended for the recreation of children, such as slides, swing sets, and teeterboards. If alleging a playground as the basis of your drug free zone, tell your officers to count the apparati. For example, a slide attached to a swing set will likely count as only one apparatus. The best procedure is to take photographs of the area so that the jury may see and count for themselves the number of apparati. Also, watch the issue of whether the playground is open to the public. In Ingram v. State,2 the State’s failure to establish that a playground, which was located on private property, was open to the public was fatal to a drug-free zone finding.3 Therefore, before using a playground as the source of your drug free zone, you must determine who owns the land and insure that there are no limits on who may have access to the area. Be wary of playgrounds located in apartment complexes or on private property as they will likely have limited access and therefore fail to meet the definition.

“Premises” means the real property and all buildings and appurtenances pertaining to the real property. Do not forget that when the term “premises” is used, your zone will include the land upon which your source location is located. For example, the premises of an institution of higher learning would include the entire college campus and begins to run at the edge of the property line out to 1,000 feet. Be sure your officer measures from the edge of the property line, not from the side of a building on the property.

The most common source location is a school, which is defined as a private or public elementary or secondary school, or a daycare center, which is defined as a child-care facility that provides care for more than 12 children under 14 years of age for less than 24 hours a day.4 These, of course, are scattered throughout your community and will not necessarily show up on any map. Therefore, your officers should scout the area of the offense for signs or other indicators of daycare centers. The phone book may be a good place to look too because such centers can be found in unusual places: Many health clubs, churches, and businesses may have child-care facilities.

Private schools are also source locations. Pay attention to church-based schools, private academies, and as at least one court has suggested, a private home used for home schooling, all of which may provide the basis of finding a drug free zone.5 A thorough scouting of the area of the offense may pay big dividends. Remember that a school is a school regardless of the time of year. The statute draws no distinction between whether school is in session or out—it merely states the place.6 Note that while subsection (a) simply defines the term “school,” the enhancements in subsections (d), (e), and (f) use the phrase “any real property owned, rented, or leased to a school or school board,” thus expanding the number and type of those locations to include any property owned by a school, such as the bus barn or storage facilities.

Another DFZ is a “video arcade facility,” which, like a playground, must be open to the public, including those 17 or younger; must be intended primarily for the use of pinball or video machines; and must contain at least three such machines. Again, photos of the facility will go a long way in prosecuting your drug free zone case when a video arcade is your source location.

The “youth center,” like the daycare center, is often overlooked as a source location. The term includes any recreational facility or gymnasium intended primarily for use by those 17 and younger and which regularly provides athletic, civic, or cultural activities. Therefore, watch for after-school programs, Boy or Girl Scout meeting places, and sports facilities used for organized groups such as Pop Warner football. During the summer months, communities will often host free lunch programs and similar activities at local parks and other places that would not otherwise be considered a drug free zone but will be during those times.

Charging

Charging the drug-free zone is the most difficult and most important step in the process. There are four variables to account for to determine when and how to use the statute. The first is to determine which penalty group your controlled substance fits into and how much of the substance is involved. Next, what conduct has the defendant committed, i.e., possession, delivery, or possession with the intent to deliver? Third, what location will be alleged as the source of your drug free zone? Lastly, what distance from the source location is involved?

The first three variables are relatively easy. What kind of controlled substance is involved, its quantity, and the defendant’s conduct (possession or delivery) are the standard basis of any drug prosecution. Your charging instrument should read like any other possession or delivery case.

The drug free zone is where we run into some confusion. The notice of a DFZ is generally considered an enhancement provision and therefore may be given either in the indictment itself or by filing a separate notice with the trial court, similar to giving notice of intent to seek a deadly weapon finding. However, this is not true if the offense you are alleging is defined in either §481.134(b) or (d); to punish the state jail felony offenses listed in those subsections as 3rd-degree felonies, the DFZ must be alleged in the indictment7 because the courts have held that offenses that fit into the provision of subsections (b) or (d) are separate and distinct 3rd-degree felonies and not enhanced versions of the offenses listed in those sections.8

The same is true for the offense listed in subsection (e). Those offenses would otherwise be Class A misdemeanors but for the fact that the offense was committed within 1,000 feet of any real property owned, rented, or leased by a school or school board, the premises of a youth center, or on a school bus. In those cases, the allegation of the drug free zone must be set out in the indictment, as that element would be jurisdictional, in the same manner as alleging prior convictions to establish a felony Driving While Intoxicated. While no reported case has discussed this subsection for the same reasons and logic set forth by the courts concerning subsections (b) and (d) an offense pursuant to Subsection (e) would be a separate offense from one committed under Section 481.117(b), 481.119(a), 481.120(b)(2) or 481.121(b)(2) not only because they have increased punishment but also that that element vests the district with the jurisdiction to hear the matter.

I should note that subsections (b) and (d) are almost—but not quite—identical; the big difference is that “an institution for higher learning” is only a source location for felony delivery cases, NOT for felony possession or misdemeanor delivery or possession charges. (I’m not sure why state legislators determined that a college dorm shouldn’t be a drug-free zone for possession cases, but perhaps it is another reminder that they, too, have children in college.) In addition, swimming pools and video arcades are only a source location for low-level delivery charges, not for possession charges or higher delivery charges. (Your guess is as good as any for the reasoning behind that distinction.) But regardless of the logic—or lack of logic—behind these legislative quirks in the statute, prosecutors should be aware of them when charging these cases.

Be careful in charging your offense to allege what can actually be proven. Some difficulties have arisen where the allegation provided that the premises was “owned” by the institution or school, etc. Be sure that there will be evidence to establish ownership, rental status, or leasehold. While officer testimony is often sufficient, be prepared to call a school official or other person who can verify that the property is owned, leased, rented, or whatever you have alleged. Do not let the office form plead you into a position that you cannot prove. This part seems so simple, and it is, but it is often forgotten until trial.9

I know by now your eyes have glazed over and you are scratching your head. Welcome to the club! As I stated earlier, the key to a drug free zone prosecution is knowing your variables and where to plug them into the matrix. I have prepared a chart (attached as a PDF to this webpage) that I hope will ease some of the angst you and your officers often feel. In my office we have individual drug free zone indictment forms set up to account for as many of the variables as is reasonably possible. That adds up to over 180 such forms! They are available for download on TDCAA’s website; just search for “drug free zone.”

Proof

Proving your case begins with establishing whatever conduct you are charging. After all the basic elements are covered, proving the drug free zone is usually fairly simple. Health & Safety Code §481.135 provides some guidance. If the governing body of your jurisdiction adopts a resolution or ordinance approving a map produced by a municipal or county engineer that establishes drug free zones, then the map itself may be introduced at trial and is prima facie evidence of the location and boundaries of drug free zones. Obviously, obtaining passage of a resolution or ordinance is political exercise. This may take some education on the part of your office as well as local enforcement for that body. A professional presentation as to the need for an ordinance, the effect, the value to the children, the help for law enforcement and the no or minimal cost from your office partnered with officers should give the commission the chance to be on the “law enforcement team,” and result in the passage of the ordinance or resolution.

If your source location does not appear on the map or if your jurisdiction has not adopted such a map, do not despair—there are still many options available.10 Subsection (d) of §481.135 provides that any other evidence or testimony may establish the elements of the DFZ, and any maps or diagrams that are otherwise admissible may be used. Maps and geographic locations are generally considered not subject to reasonable dispute; therefore, you may offer a map of the area where the offense occurred and ask the court to take judicial notice of the map itself pursuant to Texas Rule of Evidence 201(b). Then have an officer or other person identify the source location and the location of the offense on the previously admitted map. For the best testimony, have the witness testify as to the exact distance between the two locations that he himself measured. My experience has been that jurors want to hear the exact distance; statements such as, “The location was within 1,000 feet of the school” just does not satisfy them. The measurements may be taken in any manner: laser ranger finder, car odometer, traffic wheel, or the old-fashioned measuring tape. This part of the trial can be a true show-and-tell time. Your city or county engineer can produce very large, remarkably clear maps for in-court use. Or you may want to check with your local 911 district, as authorities there often have to-scale overview photos of the area that can be enlarged. Those computer gurus among us might know of several websites that allow you to download satellite photos that can be displayed with your PowerPoint presentation (Google Earth is one such site).

Once you have proved your underlying offense and the fact that it occurred within the proscribed distance of a DFZ, you are finished. There is no additional mental element to be proven.11 The sole question for the factfinder is whether the defendant committed the offense in the location alleged. However, if you are proceeding under a constructive delivery or possession with intent to deliver theory, you may want to read carefully Justice Hancock’s opinion in Villalobos v. State12 before picking your charging theory. As pointed out in that decision, whether the intermediary is an agent of the dealer or law enforcement will determine when (and where) the offense occurred, thereby, determining if a drug free zone is involved. The court there found that because the defendant’s conduct was completed outside the drug free zone the trial court improperly made the affirmative finding. The discussion of using the “offer to sale” provision of the delivery statute may also give you helpful suggestions as to how to approach your particular facts.

Lastly, for those in your office who must deal with tracking forms and the ubiquitous DPS reportable offense codes, you will notice another odd thing. As far as those codes are concerned, there are only two offenses per penalty group. There is a code for less than one gram and one for over one gram, so the proper code number for delivery of 1 to 4 grams of cocaine in a drug free zone is the same as that for delivery of over 400 grams of cocaine in a drug free zone, but delivery of less than one gram has its own number. Again, I cannot explain why; it just is what it is.

Exceptions

Subsection (g) provides that for offenses that would be increased from a Class B to a Class A misdemeanor pursuant to subsection (f), the law does not apply if the offense is committed inside a private residence and no minor was present at the time of the offense. Note, however, that this provision applies only to the offenses listed in Subsection (f). I frequently hear defense attorneys argue that we cannot proceed with the drug free zone allegation because the methamphetamine was found in the defendant’s residence. That is just plain wrong!

Jury charges

Where to place the drug free zone question and verdict form is probably the most asked question in my office. The statute itself is again the source of the confusion. The statement in Subsection (b), “If it is shown at the punishment phase of the trial of the offense that the offense was committed [at the source location],” suggests that the issue is properly addressed in the trial’s punishment phase. But the logic of Harris v. State,13 is more compelling to me, because, as the court noted, the Hastings decision is premised on the false assumption that all trials are bifurcated proceedings and was decided before the U.S. Supreme Court decision in Apprendi v. New Jersey.14 I believe that the proper and only place to put the question to the jury is in the guilt-innocence charge to avoid any due process claims as set forth in Apprendi. If the offense is listed in subsections (b), (d), or (e) (primarily the “less than one gram” or “28 grams” offenses), then the DFZ issue must be charged as an element of the offense (i.e., do you find that the defendant did knowingly or intentionally possess the controlled substance, and do you find that the defendant did commit the offense within 1,000 feet of a school?). The verdict form must have only the two choices: guilty or not guilty of the offense charged in the indictment or information. On the other hand, if the offense is listed in subsection (c), then the charge should be written in a manner similar to asking for a special issue deadly weapon finding (i.e., if you have found the defendant guilty, then answer the special issue: Do you find beyond a reasonable doubt that the defendant did commit the offense in, on, or within 1,000 feet of the premises of a school?). The verdict form would then have the guilty-not guilty verdicts and the special issue answer, such as “We the jury find the drug free zone allegation true / not true.”

Effects

Despite the statute’s complicated language, the legislature has provided prosecutors with a very powerful tool for combating drug offenses. The ramifications of a DFZ affirmative finding are often overlooked and unappreciated. Other than the provisions of subsections (b), (d), and (e)—which create actual new offenses, as explained above—§481.134 acts as a punishment enhancement law. In subsection (b), besides making an offense committed under that subsection a 3rd-degree felony, it also provides that an offense that would otherwise be punishable as a 2nd-degree felony will be punished as a 1st-degree felony, but it does not increase the fine. As stated earlier, a conviction pursuant to subsections (b) and (d) is a 3rd-degree felony. If your defendant has prior non-state jail felony convictions, they can be used to enhance his punishment pursuant to §12.42 of the Penal Code, the same as any other 3rd-degree felony.

Subsection (c) provides that if the DFZ element is shown at the trial of a qualifying offense and source location, the punishment is increased by five years and the maximum fine is doubled. For example, possession of more than one but less than four grams of cocaine (a 3rd-degree felony) committed within 1,000 feet of the premises of a school or youth center has a punishment range of 7 to 10 years and up to a $20,000 fine. However, be mindful that pursuant to the changes to the community supervision law, the maximum period of probation for a 3rd-degree felony contained in Chapter 481 of the Health & Safety Code is five years.15 Therefore, the minimum sentence of seven years could be probated for not more than five years. On the other hand, if your defendant has a prior conviction with a judgment that contains an affirmative DFZ finding and he is now charged with an offense under subsections (c), (d), (e), or (f), the new offense is a 3g offense, so a judge cannot grant community supervision.16

Another frequently asked question is how to apply the drug free zone finding if the charging instrument also alleges prior convictions. The answer is that the five-year increase applies after the punishment with the prior convictions allegations has been assessed. For example, a conviction of a 3rd-degree felony with two prior sequential felony convictions and an affirmative DFZ finding translates to a minimum of 30 years’ confinement instead of the 25 years for a habitual offender.17

The drug free zone finding also carries some other interesting ramifications. Subsection (h) provides that punishment increased for a conviction for an offense listed under §481.134 may not run concurrently with punishment for a conviction under any other criminal statute. Therefore, if your defendant was on probation for an offense other than another DFZ offense, and he violates probation by committing an offense covered in §481.134, the sentences must be stacked. Likewise, if your defendant is charged with other offenses such as burglary or aggravated assault, even if he enters his guilty plea to the charges during the same proceeding, the court must stack the sentences. Because subsection (h) specifically provides that punishment increased “under this section” may not run concurrent with punishment for a conviction under any other criminal statute, it appears that the sentence must be consecutive even with other drug offenses that are not part of §481.134.

Another interesting ramification of the affirmative DFZ finding is found in §508.145(e) of the Government Code; it provides that “an inmate serving a sentence for which the punishment is increased under §481.134, Health and Safety Code, is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good conduct time, equals five years or the term to which the inmate was sentenced, whichever is less.” Therefore, your defendant must serve the first five years of his sentence flat. Not many statutes give you that kind of bang for your buck! Remember this provision when preparing your punishment charge if a jury is assessing the punishment. Keep in mind this provision is particularly effective on 2nd- and 3rd-degree felonies, but the statute may have some adverse consequences with sentences in excess of 20 years, as the defendants in those cases appear to become parole-eligible at the five-year mark, even if one-quarter of their sentence term would be greater than five years.

Conclusion

As law enforcement officials, we are all aware of the dangers and risks posed by the distribution and use of drugs. The frequent use of firearms makes engaging in this activity around a school or other protected place egregious. The provisions of the drug free zone statute provides us with means of making a real difference in protecting our children if we will simply apply the law in an aggressive, fair, and equal manner.

Endnotes

1 §61.003(6): “Other agency of higher education” means The University of Texas System, System Administration; Texas Western University Museum; Texas A&M University System, Administrative and General Offices; Texas Agricultural Experiment Station; Texas Agricultural Extension Service; Rodent and Predatory Animal Control Service (a part of the Texas Agricultural Extension Service); Texas Engineering Experiment Station (including the Texas Transportation Institute); Texas Engineering Extension Service; Texas Forest Service; Texas Tech University Museum; Panhandle-Plains Historical Museum; Cotton Research Committee of Texas; Water Resources Institute of Texas; Texas Veterinary Medical Diagnostic Laboratory; and any other unit, division, institution, or agency which shall be so designated by statute or which may be established to operate as a component part of any public senior college or university, or which may be so classified as provided in this chapter.
2 213 S.W.3d 515, 518-19 (Tex.App.—Texarkana 2007, no pet.).
3 The court noted that the presence or lack of fencing around the apparatus was not dispositive of the issue. Further, the court stated, “The fact the property was located near a residential area and contained playground equipment shows no more than that some children may use the facility—not that the public at large had access or permission to use the property. It is not uncommon for a group of homeowners in a neighborhood to provide a playground and limit its use to the children living in the neighborhood.”
4 Human Resources Code, §42.02(7).
5 White v. State, 59 S.W.3d 368, 370-71 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
6 See Ulloa v. State (2005 WL 2473805 Tex. App.—Austin, not designated for publication).
7 Campbell v. State, 237 S.W.3d 712, 714 (Tex. Crim. App. 2007); Young v. State, 14 S.W.3d 748, 752-53 (Tex. Crim. App. 2000); Harris v. State, 125 S.W.3d 45, 50-51 (Tex. App.—Austin 2003, pet. dism.).
8 Harris v. State, 125 S.W.3d at 52; Johnson v. State, 2007 WL 806317 (Tex. App.—Dallas, not published).
9 You may have noticed that the statute is silent as to the sale or possession of the penalty group 1-A substance, LSD (§481.1121) Also, there is no state jail-level offense of possession of a Penalty Group 4 substance. I cannot explain those facts, other than to say that is the way the statute is written.
10 Young v. State, 14 S.W.3d at 753-54; Fluellen v. State, 104 S.W.3d 152, 158-59 (Tex. App.—Texarkana 2003, no pet.); White v. State, 59 S.W.3d at 369-71; Ulloa v. State, 2005 WL 2473805 (Tex. App.—Austin not published).
11 Williams v. State, 127 S.W.3d 442, 445 (Tex. App.—Dallas 2004, pet. ref’d); Dallas v. State, 2008 WL 192440 (Tex. App.—Dallas not published).
12 (2006 WL 566464 Tex. App.—Amarillo).
13 125 S.W.3d at 51-52.
14 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
15 CCP Art. 42.12, §3(b)(2)(B).
16 CCP Art 42.12, §3g(a)(1)(G)(ii).
17 William v. State, 127 S.W.3d at 445.
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