Opinion
No. 05-06-01323-CR
Opinion Filed November 7, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F05-52150-SL.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT. Opinion By Justice LANG-MIERS.
OPINION
A jury convicted Bobby Joe Antwine of delivery of less than one gram of cocaine. See Tex. Health Safety Code Ann. § 481.112(b) (Vernon 2003). The jury made a special finding that the offense occurred in, on, or within 1000 feet of a playground, Old Settler's Park in McKinney, Texas. See id. § 481.134(a)(3) (Vernon Supp. 2008). The trial court assessed punishment, enhanced by two prior felony convictions, at twenty-five years in prison. Appellant contends that the evidence is legally and factually insufficient to show that the park is a playground because it does not contain three or more separate apparatus intended for the recreation of children. We affirm. We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). We view all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt. Lane, 151 S.W.3d at 191-92 (citing Jackson, 443 U.S. at 319). In reviewing a challenge to the factual sufficiency of the evidence, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Lancon v. State, 253 S.W.3d 699, 704-05 (Tex.Crim.App. 2008). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id.; Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). Drug-related activity in the vicinity of a playground increases the likelihood that drugs will become accessible to the children who use the playground. See Williams v. State, 127 S.W.3d 442, 445 (Tex.App.-Dallas 2004, pet. ref'd). "Playground" is defined as any outdoor facility that is not on the premises of a school and that is intended for recreation; is open to the public; and contains three or more separate apparatus intended for the recreation of children, such as slides, swing sets, and teeterboards. Tex. Health Safety Code Ann. § 481.134(a)(3). The legislature did not define "separate apparatus" in section 481.134(a)(3)(C), and we have not found any published cases that discuss the meaning of this phrase. When a word is not defined in a statute, we are to apply its ordinary meaning. See Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992). And when determining the sufficiency of the evidence to support a jury verdict, we must not employ a definition that is different or more restrictive than the one jurors are legally entitled to use. Id. Appellant contends that an "apparatus" "can be a simple structure or a complex, integrated group of structures that work together for a particular purpose." But appellant argues that the statute requires at least three of these apparatus, however simple or complex, and that they must be "separate" from each other. The evidence shows that Old Settler's Park contains a large piece of playground equipment which the parties refer to as a jungle gym. The evidence also shows that the jungle gym contains bars, poles, and at least four different slides. Multiple children can play on the jungle gym at one time, because more than one child may play on each of the slides while other children are simultaneously playing on the bars and poles. Appellant contends that the jungle gym is a single apparatus because, although there are various functions, they are all physically connected in one unit. He argues that, "[a]bsent evidence of additional, separate pieces of equipment," the evidence is legally and factually insufficient to demonstrate that the park is a playground. We disagree. The statute identifies slides, swing sets, and teeterboards as examples of the possible "separate apparatus." Tex. Health Safety Code Ann. § 481.134(a)(3)(C). This facility contains slides, bars and poles. We conclude that the fact that the slides, bars, and poles are part of a jungle gym does not mean that they are not separate apparatus within the meaning of the statute. Appellant's narrow construction of "separate apparatus" defeats the purpose of deterring drug-related activity in areas where children congregate and is not a reasonable interpretation of the statute. Additionally, Officer Gerald Rutledge of the McKinney Police Department testified that Old Settler's Park is a huge park that contains "a myriad of playing apparatus," including baseball and softball fields. Other evidence shows that the park also contains a basketball court and a swimming pool. Appellant does not mention the ball courts and fields or the swimming pool in his argument, and we have not found any case that excludes those features from the meaning of apparatus for purposes of section 481.134(a)(3)(C). Consequently, we also conclude that the ball courts and fields, swimming pool, and jungle gym show that the park contained three or more separate apparatus intended for the recreation of children. We conclude that the evidence is legally and factually sufficient to show that Old Settler's Park is a playground. We affirm the trial court's judgment.