                                Fourth Court of Appeals
                                        San Antonio, Texas
                                   MEMORANDUM OPINION
                                            No. 04-15-00783-CR

                                EX PARTE Tamara Joy MCCRACKEN

                      From the 198th Judicial District Court, Kerr County, Texas
                                      Trial Court No. B14554
                            Honorable M. Rex Emerson, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 3, 2016

AFFIRMED

           Tamara Joy McCracken pled guilty to possession of a controlled substance in a drug-free

zone, and the trial court deferred an adjudication of her guilt and placed her on three years

community supervision. After the State filed a motion to adjudicate, McCracken filed an 11.072

application for writ of habeas corpus asserting several reasons she should be granted a new trial

based on her contention that the distance between the location of the offense and the alleged drug-

free zone (a playground) was over 1,000 feet. McCracken appeals the trial court’s order denying

her application asserting she conclusively established the location of the offense was not within

1,000 feet of a playground. 1 We affirm the trial court’s order.



1
  Although McCracken’s frames her issue in terms of the voluntariness of her plea, she also argues she is actually
innocent of the drug-free zone enhancement allegation.
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                                          BACKGROUND

       McCracken was indicted for possession of a controlled substance, and the indictment

alleged the following drug-free zone enhancement:

       And it is further presented in and to said Court that the defendant committed the
       above offense within 1,000 feet of the premises of a park, to wit: SCHREINER
       CITY PARK, located at 2358 Bandera Highway, Kerrville, Texas.

As previously noted, McCracken pled guilty to the offense and was placed on deferred adjudication

community supervision.

       After the State filed a motion to adjudicate, McCracken filed her 11.072 application for

writ of habeas corpus. In her application, McCracken asserted her trial counsel failed to investigate

the validity of the drug-free zone allegation; however, after the State filed its motion, her newly

appointed counsel had a survey conducted which demonstrated that the offense occurred more than

1,000 feet from the drug-free zone. McCracken asserted she was entitled to a new trial because:

(1) trial counsel was ineffective in failing to investigate the distance; (2) her plea of guilty was

involuntary because she was misled by trial counsel regarding the drug-free zone allegation; and

(3) the indictment does not allege a proper drug-free zone enhancement, and no evidence

established that she committed the offense in a drug-free zone. After the trial court denied

McCracken’s application, she pled true to the grounds listed in the State’s motion to adjudicate.

The trial court adjudicated her guilt and sentenced her to three years’ imprisonment. McCracken

appeals.

                      DIRECT APPEAL V. DENIAL OF HABEAS APPLICATION

       The State contends McCracken’s complaint is waived because she failed to appeal the trial

court’s order deferring her adjudication. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim.

App. 1999) (“[A] defendant placed on deferred adjudication community supervision may raise

issues relating to the original plea proceedings, such as evidentiary sufficiency, only in appeals
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taken when deferred adjudication community supervision is first imposed.”). The State also

contends McCracken’s voluntariness claim is not cognizable on appeal. Woods v. State, 108

S.W.3d 314, 315-16 & n.6 (Tex. Crim. App. 2003) (noting voluntariness of a plea is not cognizable

in an appeal of a judgment rendered on a defendant’s guilty plea). Although the State’s contentions

would be correct if McCracken was appealing the trial court’s judgment adjudicating her guilt,

McCracken is appealing the trial court’s order denying her 11.072 application for writ of habeas

corpus. 2 Under article 11.072, an applicant may apply for a writ of habeas corpus seeking relief

from an order imposing community supervision. TEX. CODE CRIM. PROC. ANN. art. 11.072 (West

2015). “[T]he jurisdiction of a court to consider an application for writ of habeas corpus is

determined at the time the application is filed.” Kniatt v. State, 206 S.W.3d 657, 663 (Tex. Crim.

App. 2008). Because McCracken filed her application while she was still on court-ordered

deferred adjudication community supervision, we have jurisdiction to consider her appeal of the

trial court’s order denying her habeas application. Id.; Arreloa v. State, 207 S.W.3d 387, 390 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).

                                              STANDARD OF REVIEW

         “We have limited review of evidence claims in habeas proceedings.” Ex parte Knight, 401

S.W.3d 60, 64 (Tex. Crim. App. 2013). Although a challenge to the sufficiency of the evidence is

not cognizable in a habeas application, “a claim of no evidence is cognizable because where there

has been no evidence upon which to base a conviction, a violation of due process has occurred and


2
  Because McCracken’s notice of appeal only refers to the judgment of conviction, the State argues her notice of
appeal is not sufficient to appeal the trial court’s order denying her habeas application. The Texas Court of Criminal
Appeals, however, has recently held, “The Rules of Appellate Procedure should be construed reasonably, yet liberally,
so that the right of appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.
A person’s right to appeal a civil or criminal judgment should not depend upon traipsing through a maze of
technicalities. We do not require ‘magic words’ or a separate instrument to constitute notice of appeal.” Harkcom v.
State, 484 S.W.3d 432, 434 (Tex. Crim. App. 2016). Liberally construing the Rules of Appellate Procedure and
McCracken’s notice of appeal leads us to conclude that McCracken’s notice of appeal is sufficient to appeal the trial
court’s order denying her habeas application. See id.

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the conviction may be collaterally attacked in a habeas corpus proceeding.” Ex parte Perales, 215

S.W.3d 418, 419-20 (Tex. Crim. App. 2007) (internal citations omitted); see also Ex parte Knight,

401 S.W.3d at 64 (noting claim of no evidence is cognizable). The record must be devoid of any

evidentiary support in order for the applicant to prevail. See Ex parte Knight, 401 S.W.3d at 64;

Ex parte Perales, 215 S.W.3d at 420. We construe McCracken’s complaint on appeal as a claim

that no evidence exists to support the drug-free zone enhancement allegation.

                               DRUG-FREE ZONE ENHANCEMENT

       McCracken was charged with possession of less than one gram of heroin which is generally

punishable as a state jail felony. TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(2), 481.115(b)

(West 2010). An offense otherwise punishable as a state jail felony under Section 481.115(b) is

enhanced to a felony of the third degree if the evidence establishes that the offense was committed

in, on, or within 1,000 feet of a playground. Id. at § 481.134(d) (West Supp. 2015). A

“playground” is defined as any outdoor facility that is not on the premises of a school and that: (1)

is intended for recreation; (2) is open to the public; and (3) contains three or more play stations

intended for the recreation of children, such as slides, swing sets, and teeterboards. Id. at

§ 481.134(a)(3).

       McCracken contends no evidence established her offense was within 1,000 feet of a

playground based on the measurement from the location of her offense to the closest “play station”

located in the park referenced in the indictment. The State responds the entire park in which the

playground was located is a drug-free zone. McCracken does not challenge the trial court’s finding

that she committed the offense within 1,000 feet of the “entirety” of the park.

       In Toney v. State, the Dallas court rejected the same argument McCracken makes in the

instant case. No. 05-13-00729-CR, 2014 WL 476104, at *6 (Tex. App.—Dallas Feb. 5, 2014, no

pet.) (not designated for publication). In Toney, the appellant argued “the statutory definition for
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playground does not include the premises surrounding the playground equipment and, therefore,

the proper measurement must be from the playground equipment.” Id. The Dallas court, however,

noted it was undisputed that the playground was in Forest Park. Id. Because the evidence

established the location of the offense was within 1,000 feet from the park, the Dallas court held

the evidence was sufficient to establish the offense occurred in a drug-free zone. Id.; see also Ivery

v. State, No. 06-13-00250-CR, 2014 WL 3906192, at *2-3 & n.10 (Tex. App.—Texarkana Aug.

12, 2014, no pet.) (holding evidence sufficient to support drug-free zone enhancement where

location of offense was within 1,000 feet of the “described perimeter of a playground [which] is

called Pacific Park”) (not designated for publication); Roberts v. State, No. 11-10-00201-CR, 2012

WL 1143796, at *3 (Tex. App.—Eastland Apr. 5, 2012, no pet.) (holding evidence sufficient to

show offense occurred in drug-free zone where the location of the offense was “within 1,000 feet

of Coggin Park” and “Coggin Park contained a playground”). Similarly, we reject McCracken’s

argument in the instant case and hold the 1,000 feet is not measured from the location of the offense

to the location of the closest piece of playground equipment but from the location of the offense

to the boundary of the park containing the playground equipment. We note that our holding is

consistent with the statutory definition because playground is defined as an “outdoor facility” that

contains three or more play stations. TEX. HEALTH & SAFETY CODE. § 481.134(a)(3). In this case,

the park is the “outdoor facility” that contains the playground equipment.

                                              CONCLUSION

       The trial court’s order is affirmed.

                                                   Karen Angelini, Justice

DO NOT PUBLISH




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