Pubdate: Sun, 13 Jul 2008
Source: Herald-Banner (TX)
Copyright: 2008 Greenville Herald Banner
Author: Brad Kellar


An appeals court has overturned the conviction and lengthy prison
sentence given to a Greenville man, whom authorities said sold crack
cocaine and ran prostitution and gambling operations from a residence
near a local school.

But the Fifth District Court of Appeals of Texas at Dallas did more
than just throw out the 85-year sentence for drug possession a Hunt
County jury handed down after convicting Allen Lane Whittaker and
order a new trial in the case.

In an opinion issued Thursday, the panel ordered Whittaker's
acquittal, claiming the evidence used to convict him was insufficient
and the sentence was improperly enhanced.

The office of Hunt County District Attorney F. Duncan Thomas released
a statement, indicating there has been no decision made so far
regarding whether to seek the opinion of a higher court.

"We certainly agreed with the trial jury's verdict and disagree with
the Court of Appeals," Thomas said. "We just received the Appellate
Court's decision and intend to consider our options after studying
that decision further."

Whittaker was found guilty in the 196th District Court in April 2007
of possession of between one and four grams of cocaine in a Drug Free
Zone. The next day the same jury sentenced Whittaker to 85 years in
the Texas Department of Criminal Justice-Institutional Division.

During a formal sentencing hearing three days later, 196th District
Court Judge Joe Leonard stacked Whittaker's sentence on top of a
parole violation, meaning Whittaker would not even begin serving the
sentence for drug possession until his parole is up in 2030.

Former Assistant District Attorney Carol Day Moss handled the
prosecution of the case, based on an investigation by Greenville
Police Department Narcotics Officer Wesley Russell. Both won civic
awards for their actions in putting Whittaker behind bars.

"There was a high amount of illegal gambling, prostitution and drug
transactions going on at that location," Russell said following
Whittaker's sentencing of the home in the 5000 block of Pickett
Street, which was within 1,000 feet of the L. P. Waters Early
Childhood Education Center.

The residence had been under investigation by the police department
for several months prior to Whittaker's arrest on July 13, 2006. At
the time, Whittaker was already on parole for drug-related offenses
committed in Greenville. The residence had no utilities and was used
mainly for the distribution of crack cocaine, police officials said.

Neighbors in the surrounding area also helped bring the house to the
attention of patrol officers, who initiated numerous traffic stops
which resulted in arrests and the recovery of crack cocaine.

The charge Whittaker was facing is typically a third-degree felony,
punishable by a maximum sentence upon conviction of from two to 10
years in prison. The potential punishment was enhanced to that of a
first-degree felony - or up to life in prison - due to Whittaker's
previous convictions and the fact the offense was in a Drug Free Zone.

However, on appeal, Whittaker's attorney argued that at the time of
the raid on the residence, Whittaker was not present, but was asleep
at his mother's house next door. The cocaine itself was found hidden
between two slats of a privacy fence which was easily accessible to
the public, the appeals court ruled, meaning that Whittaker was not in
proximity to the cocaine and it was not accessible to him at the time.

There was evidence presented at trial that Whittaker had access to and
may have resided in the house, raising suspicion that he knew about
the cocaine in the back yard.

"However, proof amounting only to strong suspicion or mere probability
will not suffice to show appellant had knowledge and control over the
cocaine appellant was charged with possessing," the appeals court
ruled in its opinion. "Accordingly, we reverse the trial court's
judgment and render a judgment of acquittal."
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