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Click here for the full text of this decision FACTS:Chad Taylor, an undercover police officer, testified that James Clearnon Ingram sold him drugs near a playground owned by the Turner Alumni Association and that it was 560 to 580 feet from the site of the buy. Taylor testified there was a baseball field, equipment consisting of a merry-go-round, swings, a couple of sets of slides and some climbing toys at the playground site. Deputy Sheriff David Jeter testified that the transaction took place approximately 552 feet from the recreational area and that there was a baseball field there with five or six pieces of playground equipment. Police arrested Ingram, and a jury convicted him of selling a controlled substance at a location within 1,000 feet of a playground. Ingram chose to have the trial court assess his punishment, which it set at 45 years of imprisonment. The evidence shows that Ingram sold six rocks of crack cocaine, or less than one gram, to Taylor. On appeal, Ingram contended, inter alia, that the evidence was insufficient to prove that the transaction occurred within 1,000 feet of a playground or that the facility was open to the public; that two jurors were improperly seated; and that the state inadequately proved the chain of custody of the controlled substance. HOLDING:Affirmed in part, reversed and remanded in part. For it to uphold Taylor’s sentence, the court stated, the state must prove that the offense was committed within 1,000 feet of an outdoor facility used for recreation and which is open to the public. Factually and legally sufficient evidence, the court held, supports a conclusion that the area was an outdoor recreational facility and that the sale occurred within 1,000 feet of the facility, part of a now-closed school and currently operated and owned by the Turner Alumni Association. But there is no direct evidence the facility was open to the public, the court stated. Accordingly, the court concluded that there was no evidence to support the enhancement of punishment of the state-jail felony under Texas Health & Safety Code �481.134(b) to a third-degree felony. Because there was no evidence to support a finding that the location at issue was a playground, the court held that the state failed to prove its drug-free zone allegation. Thus, the conviction remained nothing more than a state-jail felony, and the court-assessed punishment exceeded the permissible range for a state-jail felony conviction. Accordingly, the court reversed and remanded the matter for a new punishment hearing. Ingram also alleged that the drugs that he allegedly sold to the undercover officer . . . has suggested no way in which the proof was inadequate to support such a finding instead, the entire argument focuses on the lack of a chain-of-custody affidavit. The affidavit is not required. OPINION:Carter, J.; Morriss, C.J., Carter and Moseley, J.J.

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