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No. 03-15-00079-CR
IN THE
THIRD COURT OF APPEALS
at AUSTIN
DAVID KENT THACKER, JR.,
VS.
STATE OF TEXAS
Appellee
Appealed from the 207th District Court of
Comal County, Texas, Trial Court Case No. CR2013-096
__________________________________________________________
IDENTITY OF PARTIES & COUNSEL
David Kent Thacker, Jr. certifies that the following is a complete list of the
parties, attorneys and any other person who has any interest in the outcome of this
lawsuit:
David Kent Thacker, Jr., Thacker, Last Known Address: 3005 W. San Antonio
Street, New Braunfels, Texas 78130, telephone number: (830) 620-3400; fax
number: (830) 608-2082.
Gerald C. Moton, Moton Law Office, PMB 248, San Antonio, Texas 78216, Trial
Attorney, telephone number: (210) 410-8153, fax number: (210) 568-4389.
Sammy McCrary, Chief Felony Prosecutor for Appellee, Criminal District Attorney
of Comal County, Texas, 150 N. Seguin Avenue, Ste 307, New Braunfels, TX
78130-5122, telephone number: (830) 221-1300; fax number: (830) 620-5599.
i
Daniel Palmitier, Assistant Attorney for Appellee, Criminal District Attorney of
Comal County, Texas, 150 N. Seguin Avenue, Ste 307, New Braunfels, TX 78130-
5122, telephone number: (830) 221-1300; fax number: (830) 620-5599.
Jacqueline H. Doyer, Assistant Attorney for Appellee, Criminal District Attorney of
Comal County, Texas, 150 N. Seguin Avenue, Ste 307, New Braunfels, TX 78130-
5122, telephone number: (830) 221-1300; fax number: (830) 620-5599.
Jennifer Anne Owens Thrap, Attorney for Appellee, Criminal District Attorney of
Comal County, Texas, 150 N. Seguin Avenue, Ste 307, New Braunfels, TX 78130-
5122, telephone number: (830) 221-1300; fax number: (830) 620-5599.
Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046, Austin, Texas
78711, telephone number: (512) 463-1660; Fax number: (512) 463-5724.
Honorable Bruce Boyer, Judge 22nd Judicial District, Trial Judge, 150 N. Seguin,
Suite 317, New Braunfels, TX 78130, (830) 221-1270, Fax: (830) 608-2030.
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES & COUNSEL................................................. i
TABLE OF CONTENTS.…..................................................................... iii
INDEX OF AUTHORITIES...........................................……….............. vi
STATEMENT OF THE CASE................................................................. 2
A. Nature of the Case.…........................................................................... 2
B. Course of Proceeding........................................................................... 2
C. Trial Court's Disposition of the Case ................................................. 4
STATEMENT REGARDING ORAL ARGUMENT.............................. 5
ISSUES PRESENTED FOR REVIEW................................................... 6
STATEMENT OF THE FACTS...............................................…........... 7
A. Officer Jason Tucker..........................................................…............. 7
B. Officer Terry Flugrath..........................................................…............ 10
SUMMARY OF THE ARGUMENT....................................................... 12
ARGUMENT..............................................……..................................... 14
POINT OF ERROR NO. ONE
THE TRIAL COURT ERRED IN FAILING TO GRANT
THACKER'S MOTION TO SUPPRESS ANY AND ALL
EVIDENCE STEMMING FROM HIS DETENTION WHICH
WAS MADE WITHOUT A WARRANT AS THE OFFICER
iii
DID NOT HAVE AN OBJECTIVE BASIS
FOR THE DETENTION............................................................... 14
A. Standard of Review........................................................................ 14
B. Applicable Law............................................................................... 15
C. Care-taking Function Did Not Justify Continued Traffic Stop
Investigation......................................................................…........... 17
D. Analysis............................................................................................. 19
POINT OF ERROR NO. TWO
THE TRIAL COURT ERRED IN FAILING TO
GRANT THACKER'S MOTION TO SUPPRESS
ORAL STATEMENTS AS THEY WERE CUSTODIAL
INTERROGATIONS THAT VIOLATED THE LAW................ 21
A. Standard of Review........................................................................ 21
B. Custodial Interrogation.................................................................. 22
POINT OF ERROR NO.THREE
WHETHER THE EVIDENCE WAS LEGALLY
INSUFFICIENT TO CONVICT THACKER OF
“OPERATING” A MOTOR VEHICLE................................... 24
POINT OF ERROR NO. FOUR
THE EVIDENCE WAS LEGALLY INSUFFICIENT
TO CONVICT THACKER OF OPERATING A
MOTOR VEHICLE IN A “PUBLIC PLACE”............................ 29
POINT OF ERROR NO. FIVE
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
CONVICT THACKER OF OPERATING A MOTOR
VEHICLE WITHOUT NORMAL USE OF FACILITIES......... 32
iv
POINT OF ERROR NO. SIX
WHETHER THACKER'S LIFE SENTENCE WAS CRUEL
AND UNUSAL PUNISHMENT........................................... 34
PRAYER ..............................................................................……....... 36
CERTIFICATE OF SERVICE............................................................ 37
CERTIFICATE OF COMPLIANCE....................................................... 38
v
INDEX OF AUTHORITIES
PAGE
CASES
Tamez v. State,
11 S.W. 3d 198 (Tex.Crim.App. 2000).......................................... 3
Robles v. State,
85 S.W.2d 211, 212 (Tex. Crim. App. 2002)............................... 4
Miranda v. Arizona,
384 U.S. 436, 479 (1966)................................................................ 12, 21
24
Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997)............................... 14, 20
21
Ornelas v. United States,
517 U.S. 690, 699(1996).............................................................. 14
State v. Mendoza,
365 S.W.3d. 666, 670 (Tex. Crim. App. 2012).......................... 15
State v. Castleberry,
332 S.W.3d 460, 465 (Tex. Crim. App. 2011)........................... 15, 17
State v. Sheppard,
271 S.W. 3d 281, 288 (Tex. Crim. App. 2008)............................ 15
Amador v. State,
221 S.W. 3D 666, 672 (2007)........................................................... 15
Terry v. Ohio,
392 U.S. 1, 28 (1968)................................................................... 16, 22
Derichsweiler v. State,
348 S.W.3d 906, 914 (Tex. Crim. App. 2011)............................. 16
vi
Hiibel v. Sixth Judicial Dist. Court,
542 U.S. 177, 185 (2004)............................................................. 16
York v. State,
342 S.W.3d 528, 536 (Tex. Crim. App. 2011).............................. 16, 17
20
Martinez v. State,
348 S.W.3d 919, 923 (Tex. Crim. App. 2011).............................. 16
United States v. Arvizu,
534 U.S. 266, 274 (2002).......................................................... 16
Gamble v. State,
8 S.W.3d 452, 454
(Tex. App.-Houston [1st Dist.] 1999, no pet.)............................ 17, 20
Mincey v. Arizona,
437 U.S. 385, 390 (1978)........................................................... 17
Cady v. Dombrowski,
413 U.S. 433 (1973).................................................................... 17,18
Wright v. State,
7 S.W.3d 148,151 (Tex. Crim.App.1999)........................................ 18, 19
Corbin v. State,
85 S.W.3d 272, 277 (Tex. Crim.App.2002).................................. 18
Gonzales v. State,
369 S.W.3d 851, 855 ftn 18 (Tex.Cr.App. 2012) ............................ 19
Dowthitt v. State,
931 S.W.2d 244, 263 (Tex.Crim.App. 1996)............................ 21, 23
Ripkowski v. State,
61 S.W/3d 378, 381-52 (Tex.Crim.App. 2001)........................... 21
vii
Riley v. United States,
923 A.2d 868, 883-84 (D.C.App. 2007),
cert. denied, 555 U.S. 830, (2008)......................................... 22
Abernathy v. State,
963 S.W.2d 822, 824 n. 4
(Tex.App.-San Antonio 1998, pet. ref'd). ................................... 22
Berkemer v. McCarty,
468 U.S. 420, 439 (1984)............................................................... 22, 23
California v. Beheler,
463 U.S. 1121, 1125 (1983)......................................................... 23
Stansbury v. California,
511 U.S. 318, 324 (1994)................................................................ 24
Jackson v. Virginia,
443 U.S. 307, 319(1979)............................................................ 25
Anderson v. State,
416 S.W.3d 884, 888 (Tex. Crim. App. 2013)........................... 25
Brooks v. State,
323 S.W.3d 893, 899 (Tex. Crim. App. 2010)............................ 25
Carrizales v. State,
414 S.W. 3d 737, 742 (Tex. Crim. App. 2013)............................ 25
Hooper v. State,
214 S.W. 3d 9, 13 (Tex. Crim. App. 2007). ............................... 25
Wicker v. State,
667 S.W.2d 137, 143 (Tex. Crim. App. 1984)............................ 25
Matson v. State,
819 S.W.2d. 830, 846 (Tex. Crim. App.1991)............................. 25
Fuentes v. State,
991 S.W.2d 267, 271 (Tex. Crim. App. 1999)............................. 25
viii
Sharp v. State,
707 S.W2d 611, 614 (Tex. Crim. App. 1986)............................... 26
Turro v. State,
867 S.W.2d 43,47 (Tex. Crim. App. 1993)................................... 26
McDuff v. State,
939 S.W.2d 607, 614 (Tex. Crim. App. 1997)............................. 26
Kirsch v. State,
357 S.W.3d 645, 650-51 (Tex. Crim. App. 2012)......................... 26
Denton v. State,
911 S.W.2d 388, 389 (Tex. Crim. App. 1995)............................... 26
Barton v. State,
882 S.W.2d 456 (Tex. App.—Dallas 1994, no pet.)..................... 27, 28
Dornbusch v. State,
262 S.W.3d 432 (Tex. App.—Fort Worth 2008, no pet.).............. 28
Reynolds v. State,
744 S.W.2d 156 (Tex. App.—Amarillo 1987, pet. ref’d) ............ 28
Pope v. State,
802 S.W.2d 418 (Tex. App.—Austin 1991, no pet.)..................... 28
Hernandez v. State,
773 S.W.2d 761 (Tex. App.—San Antonio 1989, no pet.)........... 28
Hearne v. State,
80 S.W.3d 677
(Tex. App.—Houston [1st Dist.] 2002, no pet.)............................ 28
Shaub v. State,
99 S.W.3d 253, 256
(Tex.App.-Fort Worth 2003, no pet.)............................................ 29
ix
Loera v. State,
14 S.W.3d 464, 467 (Tex.App.-Dallas 2000, no pet.)............... 30, 31
32
State v. Nailor,
949 S.W.2d 357
(Tex.App.-San Antonio 1997, no pet.)..…................................ 30, 31
32
Holloman v. State,
No. 11-95-275-CR, 1995 WL 17212433
(Tex.App.—Eastland 1995).…................................................... 30
In re W.T.O.,
No. 03-01-00630-CV,
2002 Tex. App. LEXIS 8214, at *7
(Austin Nov. 21, 2002, no pet. h.)............................................. 30
Kapuscinski v. State,
878 S.W.2d 248, 250
(Tex.App.-San Antonio 1994, pet. ref'd).................................... 30
Thibaut v. State,
782 S.W.2d 307, 309,
(Tex.App.-Eastland 1989, no pet.) ............................................. 30
Cornealius v. State,
900 S.W.2d 731, 734 (Tex.Crim.App. 1995)............................ 31
Commander v. State,
748 S.W.2d 270
(Tex. App.-Houston [14th Dist.] 1988, no writ)...................... 31
Fowler v. State,
65 S.W.3d 116 (Tex.App.—Amarillo 2001, no pet.)................ 32
Findlay v. State,
9 S.W.3d 397, 400
(Tex.App.-Houston [14th Dist.] 1999)...................................... 32
x
Stoutner v. State,
36 S.W.3d 716, 721
(Tex.App.-Houston [1st Dist.]2001, pet. ref'd)......................... 33, 34
Weaver v. State,
721 S.W.2d 495, 498
(Tex.App.-Houston [1st Dist.] 1986, pet. ref'd)........................ 33, 34
Scillitani v. State,
297 S.W.3d 498
(Tex.App.-Houston [14th Dist.] 2009)...................................... 33
Graham v. Florida,
560 U.S. 48, 59-60 (2010).......................................................... 34
Ewing v. California,
538 U.S. 11 (2003)..................................................................... 34
Harmelin v.Michigan,
501 U.S. 957 (1991).................................................................... 34
Solem v. Helm,
463 U.S. 277 (1983).................................................................... 34
Rummel v.Estelle,
445 U.S. 263 (1980).................................................................. 34, 35
Winchester v. State,
246 S.W.3d 386, 390-91
(Tex. App.-Amarillo 2008, pet. ref'd) ....................................... 35
Vrba v. State,
69 S.W. 3D 713, 716, 724-725 …............................................... 35
Davidson v. State,
03-13-00708-CR
(Tex.App.-Austin 8-1-2014)(unpublished)..................................... 35
xi
Harris v. State,
204 S.W.3d 19, 29
(Tex. App.—Houston [14th Dist.] 2006, pet. ref'd)...................... 35
Hicks v. State,
15 S.W.3d 626, 632
(Tex. App.—Houston [14th Dist.] 2000, pet. ref'd)....................... 35
Nunn v. State, 14-14-00704-CR
(Tex.App.-Houston [14th Dist.] 4-9-2015) (unpublished).....…..... 35
UNITED STATES CONSTITUTION
Fourth Amendment to the United States Constitution......................... 15, 16
17, 18
United States Constitution..................................................................... 15,17
Fifth Amendment to the United States Constitution............................ 22
U.S. Const. amend VIII......................................................................... 34
FEDERAL STATUTES
None
TEXAS CONSTITUTION
None
STATE STATUES
Tex. Pen. Code § 49.04........................................................................... 22, 32
Tex. Pen. Code Ann § 49.04(a)(West Supp. 2013)................................ 26
Tex. Pen. Code Ann § 49.01(2)(West Supp. 2013)................................ 26
Tex. Pen. Code Ann § 1.07(a)(40).......................................................... 29
xii
STATE RULES
Tex.R.App. P. 9.4(e)................................................................................. 38
Tex.R.App. P. 9.4(i).................................................................................. 38
Tex.R.App. P. 9.4(i)(1)............................................................................. 38
MISCELLANEOUS
Black's Law Dictionary 13 (7th ed. 1999)................................................... 31
Senate Criminal Justice Comm., Bill Analysis,
Tex. S.B. 35, 75 th Leg., R.S. (1997)................................................... 33
xiii
No. 03-15-00079-CR
IN THE
THIRD COURT OF APPEALS
at AUSTIN
DAVID KENT THACKER, JR.,
VS.
STATE OF TEXAS
Appellee
Appealed from the 207th District Court of
Comal County, Texas, Trial Court Case No. CR2013-096
__________________________________________________________
__________________________________________________________
DAVID KENT THACKER, JR., (hereinafter referred to as “ “Thacker”
files his brief. Appellee, State of Texas, will be referred to as appellee.)
1
STATEMENT OF THE CASE1
A. Nature of the Case
Thacker appeals from a conviction for a third degree felony enhanced to
habitual driving while intoxicated offense. (CR.6-8, 423). It was alleged that on
or about the 15th day of September, 2012 that Thacker operated a motor vehicle in
a public place while intoxicated and that prior to the commission of this offense
that he had been legally convicted two or more times of offenses relating to the
operating of motor vehicles while intoxicated. (CR.6-8). Thacker pleaded not
guilty. (CR. 25). The jury found Thacker guilty of a third degree felony enhanced
to habitual driving while intoxicated offense, and the trial court on the jury's
recommendation assessed punishment at confinement for Life. ( CR. 413).
B. The Course of Proceedings
On March 13, 2013 Thacker was indicted as a third degree felony enhanced
to habitual driving while intoxicated offense. (CR. 6-8). It was alleged that on or
about the 15th day of September, 2012 that Thacker operated a motor vehicle in a
public place while intoxicated and that prior to the commission of this offense that
he had been legally convicted two or more times of offenses relating to the
1Undersigned counsel has prepared this brief in reliance on the electronic record on appeal,
which contains the Clerk's Record and any reference to a document filed in this case, or to a
portion of these documents will be made by “CR” page number, or numbers, and the trial court
transcript, with reference to this document or portion thereof being made in the following
manner: “TR. [volume number]:[page number].”
2
operating of motor vehicles while intoxicated. Id.
New Braunfels Police Department Officer Flugrath after arresting Thacker
for driving while intoxicated requested that Thacker give a voluntary blood
sample, which Thacker refused to provide. (TR. Vol. 4, 109). Acting on the
response from dispatch that Thacker had at least two previous convictions for
driving while intoxicated and took Thacker to Christus Santa Rosa New Braunfels
for a warrantless blood draw. (TR. Vo. 2, 42-43 ).
On July 30, 2013 Thacker waived arraignment and entered a plea of not
guilty to the indictment. (CR. 80).
On October 10, 2013 the trial court denied Thacker's motion to suppress
his arrest and his motion to suppress his warrantless blood draw. (CR. 432). On
January 23, 2015, on reconsideration, the trial court granted Thacker's motion to
suppress the warrantless blood draw results. (CR. 146).
On August 14, 2014 Thacker elected to have punishment assessed by the
jury. (CR.143).
Thacker stipulated to the jurisdictional priors pursuant to Tamez v. State,
11 S.W. 3d 198 (Tex.Crim.App. 2000), and on the condition that if he stipulated
to the jurisdictional prior convictions, the State not only would not have to present
evidence of those prior convictions during the guilt phase of trial but would barred
3
from doing so. Robles v. State, 85 S.W.3d 211, 212 (Tex.Crim.App. 2002) ( TR.
Vol. 4,8-9)2
C. Trial Court's Disposition of the Case
On the trial court on the jury's recommendation assessed punishment at
confinement for Life in the Texas Department of Corrections-Institutional
Division. (TR. Vol. 5,76). A Notice of Appeal was filed on January 30, 2015.
(CR. 423).
2 Namely, Thacker stipulated to previous driving while intoxicated offenses as follows: 1. In
Cause Number 93-CR-113, in the County Court at Law of Comal County, Texas on or about
the 18th day of March, 1993; and 2. In Number 9723-95, in the County Court of Kendall
County, Texas,on or about the 19th day of October, 1995.” ( TR. Vol. 8, 39)
4
STATEMENT REGARDING ORAL ARGUMENT
Thacker respectfully requests oral argument. Oral discussion of the facts
and the applicable precedent would benefit the Court.
5
ISSUES PRESENTED FOR REVIEW
POINT OF ERROR NO. ONE
WHETHER THE TRIAL COURT ERRED IN FAILING TO
GRANT THACKER'S MOTION TO SUPPRESS ANY AND
ALL EVIDENCE STEMMING FROM HIS DETENTION
WHICH WAS MADE WITHOUT A WARRANT AS THE
OFFICER DID NOT HAVE AN OBJECTIVE BASIS FOR THE
DETENTION
POINT OF ERROR NO. TWO
WHETHER THE TRIAL COURT ERRED IN FAILING TO
GRANT THACKER'S MOTION TO SUPPRESS ORAL
STATEMENTS AS THEY WERE CUSTODIAL
INTERROGATIONS THAT VIOLATED THE LAW.
POINT OF ERROR NO. THREE
WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT
TO CONVICT THACKER OF “OPERATING” A MOTOR
VEHICLE
POINT OF ERROR NO. FOUR
WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT
TO CONVICT THACKER OF OPERATING A MOTOR
VEHICLE IN A “PUBLIC PLACE”.
POINT OF ERROR NO. FIVE
WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT
TO CONVICT THACKER OF OPERATING A MOTOR
VEHICLE WITHOUT NORMAL USE OF FACILITIES.
`
POINT OF ERROR NO. SIX
WHETHER THACKER'S LIFE SENTENCE WAS CRUEL
AND UNUSAL PUNISHMENT.
6
STATEMENT OF FACTS
A. Officer Jason Tucker
On Saturday September 14, 2012 at 11:15 p.m. Officer Jason Tucker
(“ Officer Tucker”) was dispatched to the 1400 block of FM 306 in reference to a
stalled vehicle that was parked near the railroad tracks. Upon arrival in the area he
located a 1990 Maroon Cadillac parked parallel along the railroad tracks. (TR. Vol.
4 55). The vehicle was approximately 20 to 25 feet off the roadway. Id. Officer
Tucker initially had difficulty finding the vehicle because it was not close to the
roadway “where normally a vehicle would be....” (TR. Vol. 4, 56). The vehicle
was not on top of the tracks but it was parked so close to the tracks a passing train
would have struck the vehicle. (TR. Vol.4, 57). The property was a part of the
Union Pacific railroad easement. (TR. Vol. 4, 69). Officer Tucker testified that
although he had been in the area generally before, he had never seen other
vehicles on that railroad easement. Id.
Officer Tucker had police dispatch contact the Union Pacific railroad
company to stop all trains on that track until the vehicle could be moved to a safer
location. (TR. Vol. 59). The vehicle was running.(TR. Vol. 55).
It was dark and there were no other lights other than those of Officer
Tucker's patrol car. (TR. Vol. 4, 68). Officer Tucker turned his patrol car around
7
and shined his lights on the vehicle. (TR. Vol. 4, 57). Officer Tucker didn't see any
headlights or brake lights illuminated on the vehicle. (TR. Vol. 4, 67). Officer
Tucker testified that based on his training and experience if Tucker had had his
foot on the brake petal the brake lights would have been on. (TR. Vol. 4, 68).
Additionally, the vehicle was parked. (TR. Vol. 4, 68). Thacker cut the engine off
after being awakened by Officer Tucker. Id.
Officer Tucker had to step over the rail because Thacker's vehicle was so
close to the railway. Id Officer Tucker testified that he “... looked over to the
driver's side of the vehicle; saw a person slumped over, sound asleep, in – inside
the vehicle. I was able to shake, bang on the window, yell, and scream, finally get
him alert enough to make contact with him and see what was going on.” Id. Officer
Tucker testified that “It felt like an eternity because I'm worried about him getting
hit by a train, but probably, I'd say, no less than two minutes; maybe one to two
minutes total” to get the male subject, later identified as Thacker, out of the
vehicle. (TR. Vol. 4, 57).
Thacker had a hard time putting on a flip-flop just to get out of the car. (TR.
Vol. 4, 58). Upon Thacker exiting the vehicle Officer Tucker testified that he
noticed Thacker was very unsteady on his feet and that he had to assist him by
holding his arm to help him maintain his balance. (TR. Vol. 4, 58). Officer Tucker
8
brought Thacker over to the front of his patrol car which was away from the
railroad track. (TR. Vol. 4, 58)
At that time Officer Tucker believed he was dealing with a person that
would lead to a DWI charge or an intoxication investigation. (TR. Vol. 4, 59). As
Officer Tucker spoke with Thacker he reported smelling a strong odor of
alcoholic beverage coming from inside the vehicle. Id. Thacker was very sluggish
with his reactions, bloodshot eyes, kind of glassed over and slurred speech. (TR.
Vol. 4, 59). Once a second officer, Officer Terry Flugrath arrived, conducted field
sobriety testing and placed Thacker under arrest, Officer Tucker conducted an
inventory of Thacker's car. ((TR. Vol. 4, 64).
Officer Tucker had never met Thacker before. (TR. Vol. 4, 71). He knew
nothing about his physical or mental condition. (TR. Vol. 4,71.). Thacker was able
to provide his driver's license number by memory. (TR. Vol. 4,72). Thacker was
also able to provide his Zip Code, birthdate and Social Security number. Id.
During a post-arrest inventory of Thacker's vehicle Officer Tucker located
a Calypso Spiced Rum bottle in the front passenger side floor board. The bottle of
rum had been open and was 3/4 full. (TR. Vol. 4, 71). Officer Tucker did not
make a determination if, or when Thacker had drank any of the bottle's contents.
(TR. Vol. 4, 71).
9
B. Officer Terry Flugrath
In the late hours of September 14 th while on patrol, Officer Terry Flugrath
(“Officer Flugrath”) was dispatched to the 1400 block of FM 306 to assist K-9
Officer Tucker, who had been dispatched to the area for a stalled vehicle.
(TR. Vol. 4, 88). Upon his arrival, he observed Officer Tucker speaking to a male,
who from a distance appeared to be disoriented. Id. After speaking to Officer
Tucker briefly Officer Flugrath made contact with Thacker. Id. Officer Flugrath
set up the camera to document his interactions with the Thacker. (TR. Vol. 4, 90).
Officer Flugrath directed Thacker to join him in front of his police vehicle.
Id. Officer Flugrath determined there was a strong order of alcohol coming from
Thacker's breath and person. I d . Officer Flugrath opinion was because the
vehicle's motor had been running “Basically, that would put him in control of the
vehicle.” (TR. Vol. 4,100). Officer Flugrath then sought to have Thacker perform
three National Highway Traffic Safety Administration standardized test- the
horizontal gaze nystagmus, the walk-and-turn, and the one-leg stand. (TR. Vol. 4,
116). Officer Flugrath also sought to have Thacker perform two non standardized
test- putting his head back and the ABC's. (TR. Vol. 4, 118). Officer Flugrath had
no medical training. Id.
Officer Flugrath admitted that there were 24 National Highway
10
Transportation Association driving clues that are predictors of DWI. (TR. Vol. 4,
120). None of these clues where part of his judgment in arresting Thacker for
driving while intoxicated. (TR. Vol. 4, 126). Officer Flugrath did not know
whether Thacker had had anything to drink while he was parked parallel to the
railroad track. Id. Officer Flugrath admitted with respect to the horizontal gaze
nystagmus test “you can't look at their eyes and tell what their blood level is going
to be” and that he did not known what level of blood alcohol eye jerkiness began.
(TR. Vol. 4, 134).
When Officer Flugrath was asked whether he made a determination as to
when Thacker had consumed alcohol, he stated “I believe the one answer he gave
me was he'd gotten to his friend's around – at one time he said 10:30; at one time
he said 9:30. So somewhere in that time frame between 9:30 and – or after 10:30
somewhere in that time frame. He never would exactly say. This is what I had at
this time.” (TR. Vol. 4, 126). Further Officer Flugrath did not know whether or not
Thacker had anything to drink while he was parked parallel to the railroad track.
Id.
11
SUMMARY OF THE ARGUMENT
The trial court erred in failing to grant Thacker's motion to suppress any and
all evidence stemming from his detention which was made without a warrant as
the officer did not have objective basis for the detention. The trial court made few
if any findings of fact, therefore Officer Tucker and/or Officer Flugrath's
determination of reasonable suspicion should be reviewed de novo on appeal, with
deference to judges' findings of historical facts.
The trial court erred in failing to grant Thacker's motion to suppress oral
statements as they were custodial interrogations that violated the law. At the time
of removing Thacker from his vehicle Officer Tucker believed he was dealing
with a person that would lead to a DWI charge or an intoxication investigation.
(TR. Vol. 4, 59). Thus the “care-taking” function terminated and Thacker should
have been read his Miranda rights before further questioning continued.
The evidence was legally insufficient to convict Thacker of “operating” a
motor vehicle. Given the totality of the circumstances the State failed to
demonstrate that Thacker took action to affect the functioning of his vehicle in a
manner that would enable the vehicle’s use. Further, the evidence was legally
insufficient to convict Thacker of operating a motor vehicle in a “public
place”. Thacker's vehicle was approximately 20 to 25 feet off the roadway. Id.
12
Officer Tucker initially had difficulty finding the vehicle because it was not close
to the roadway “where normally a vehicle would be....” (TR. Vol. 4, 56). Nor did
the State provide sufficient evidence that the remote railway easement was
normally used by the public as would be the case with a parking lot, military base,
gated community or other area that could be associated with the purpose of the
Texas driving while intoxicated law -protecting the safety of those traveling on the
roads by prohibiting intoxicated persons from driving a vehicle.
The evidence was legally insufficient to convict Thacker of operating a
motor vehicle without normal use of facilities. In Texas every person who drinks
alcoholic beverages will not automatically become intoxicated under our driving
while intoxicated (DWI) statute. Here the law officers' knew nothing of Thacker's
mental of physical condition without any alcoholic beverages. Further the law
officers did not know whether Thacker had consumed alcoholic beverages while
“parked” along the railroad.
Lastly, Thacker's life sentence was cruel and unusual punishment. An
objective comparison of the gravity of the offense against the severity of the
sentence reveals the sentence to be extreme. Alcoholism is an addiction. This is not
a crime of violence. Additionally, the life sentence does not further the purposes of
the Texas DWI law.
13
ARGUMENT
POINT OF ERROR NO. ONE
THE TRIAL COURT ERRED IN FAILING TO GRANT
THACKER'S MOTION TO SUPPRESS ANY AND ALL
EVIDENCE STEMMING FROM HIS DETENTION WHICH
WAS MADE WITHOUT A WARRANT AS THE OFFICER
DID NOT HAVE OBJECTIVE BASIS FOR THE DETENTION
The trial court abused its discretion in denying Thacker's motion to suppress
because Officer Flugrath did not have sufficient reasonable suspicion to believe
Thacker had committed a traffic violation and was without an objective reason for
initiating the driving while intoxicated tests on Thacker.
A. Standard of Review
This Court reviews a motion to suppress evidence under a bifurcated
standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial
judge's determinations of historical facts and mixed questions of law and fact that
rely on credibility are granted almost total deference when supported by the record.
Id. But when mixed questions of law and fact do not depend on the evaluation of
credibility and demeanor, this Court review the trial judge's ruling de novo. Id.
Whether the facts known to the officer at the time of the detention amount to
reasonable suspicion is a mixed question of law that is reviewed de novo on
appeal. Ornelas v. United States, 517 U.S. 690, 699 (1996) (holding that
determination of reasonable suspicion should be reviewed de novo on appeal, with
14
deference to judges' findings of historical facts); State v. Mendoza, 365 S.W.3d.
666, 670 (Tex. Crim. App. 2012).
Accordingly, when a trial judge rules on a motion to suppress and makes
explicit factual findings, an appellate court must determine whether the findings
are supported by the record, using an abuse of discretion standard and giving the
trial court almost "total deference." See State v. Castleberry, 332 S.W.3d 460, 465
(Tex. Crim. App. 2011) ("When the trial judge makes explicit findings of fact, we
afford those findings almost total deference as long as the record supports them,
regardless of whether the motion to suppress was granted or denied."). The Court
must then undertake a de novo review when considering whether the findings of
fact support the legal conclusions of the trial court. State v. Sheppard, 271 S.W. 3d
281, 288 (Tex. Crim. App. 2008).
B. Applicable Law
To suppress evidence because of an alleged violation of the Fourth
Amendment to the United States Constitution the defendant bears the initial
burden of producing evidence that rebuts the presumption of proper police
conduct. Amador v. State, 221 S.W. 3d 666, 672 (2007). A defendant satisfies this
burden by establishing that a search or seizure occurred without a warrant. Id.
Once the defendant has made this showing, the State has the burden of proof to
15
establish that the law enforcement officer conducted the search or seizure pursuant
to a warrant or that he acted reasonably. Id. at 672-73. The Fourth Amendment
permits a warrantless detention of a person if the detention is justified by
reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 28 (1968); Derichsweiler v.
State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). "[A] law enforcement
officer's reasonable suspicion that a person may be involved in criminal activity
permits the officer to stop the person for a brief time and take additional steps to
investigate further." Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185 (2004).
Reasonable suspicion to detain a person exists if an officer has specific,
articulable facts that, combined with rational inferences from those facts, would
lead him to reasonably conclude that the person detained is, has been, or soon will
be engaged in criminal activity. York v. State, 342 S.W.3d 528, 536 (Tex. Crim.
App. 2011). These facts must show unusual activity, some evidence that connects
the detainee to the unusual activity, and some indication that the unusual activity
is related to a crime. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App.
2011). "Although an officer's reliance on a mere `hunch' is insufficient to justify an
investigatory stop, . . . the likelihood of criminal activity need not rise to the level
required for probable cause." United States v. Arvizu, 534 U.S. 266, 274 (2002).
The test for reasonable suspicion focuses solely on whether an objective basis
16
exists for the detention and disregards the officer's subjective intent. Terry, 392
U.S. at 21-22 ; York, 342 S.W.3d at 536 .
A reasonable suspicion determination requires looking at the totality of the
circumstances and reasonable suspicion may exist even if those circumstances
standing alone may be just as consistent with innocent activity as with criminal
activity. York, 342 S.W.3d at 536. Courts have considered an officer's testimony
that activity occurs in a high crime area as support for the existence of reasonable
suspicion. See Castleberry, 332 S.W.3d at 368. However, this fact is not sufficient,
on its own or in conjunction with other purely speculative evidence, to create
reasonable suspicion. See Gamble v. State, 8 S.W.3d 452, 454 (Tex. App.-Houston
[1st Dist.] 1999, no pet.).
C. Care-taking Function Did Not Justify Continued Traffic Stop
Investigation
"The Amendment [of the United States Constitution] proscribes all
unreasonable searches and seizures, and it is a cardinal principle that 'searches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment —subject only
to a few specifically established and well-delineated exceptions.'"Mincey v.
Arizona, 437 U.S. 385, 390 (1978).
In Cady v. Dombrowski, 413 U.S. 433 (1973), the United States Supreme
17
Court established what has become known as the "community-caretaking"
exception to the warrant requirement in recognizing that police officers may
contact citizens "and engage in what, for want of a better term, may be described as
community caretaking functions, totally divorced from the detection, investigation,
or acquisition of evidence relating to the violation of a criminal statute." Cady v.
Dombrowski, 413 U.S. at 441, 447-48. But the Cady Court acknowledged that the
Fourth Amendment requires reasonableness. Id. at 339.
In recognizing the community-caretaking function as an exception, the
Tex.Crim.App stated in Wright v. State, 7 S.W.3d 148,151 (Tex. Crim.App.1999)
that "[a]s a part of his duty to 'serve and protect,' a police officer may stop and
assist an individual whom a reasonable person, given the totality of the
circumstances, would believe is in need of help". However, "a police officer may
not properly invoke his community caretaking function if he is primarily motivated
by a non-community caretaking purpose." Corbin v. State, 85 S.W.3d 272, 277
(Tex. Crim.App.2002).
Whether an officer properly invoked his community-caretaking function
requires a two-step inquiry: (1) whether the officer was primarily motivated by a
community-caretaking purpose; and (2) whether the officer's belief that the
individual needs help was reasonable. Id.
18
To determine the reasonableness of the police officer's belief that an
individual needs assistance, the Wright court proposed a non-exclusive list of
factors that courts may consider: (1) the nature and level of the distress exhibited
by the individual; (2) the location of the individual; (3) whether or not the
individual was alone and/or had access to assistance independent of that offered by
the officer; and (4) to what extent the individual — if not assisted — presented a
danger to himself or others. Wright, 7 S.W.3d at 151-52.
T he Wright factors were intended to assist courts in determining
reasonableness in this context; they are not elements of reasonableness. Gonzales
v. State, 369 S.W.3d 851, 855 ftn 18 (Tex.Cr.App. 2012).
D. Analysis
Here the trial court made very few, if any, specific findings of fact.
Consequently, the only objective facts from the findings of fact this Court is left
to consider in its appellate de novo review of the court's conclusions of law are
that Officer Flugrath approached Thacker who was standing next to another police
cruiser after his vehicle had been moved from its parked position along side a
railroad track. (TR. Vol. 4, 88). This is not enough to support a claim of reasonable
suspicion to detain.
The trial court made limited findings of fact regarding the officers'
19
testimony therefore, this Court must give the court discretion to disbelieve the
officer's testimony in this regard. See Guzman, 955 S.W. 2d at 89. However, even
if this Court were to determine that the trial court believed all of the officers'
testimony, these facts would be insufficient to lead a reasonable officer to
conclude that Thacker had committing or was about to commit a crime, as this
evidence was too speculative to support a rational inference driving while
intoxicated or other crime could be in progress. See York, 342 S.W.3d at 536.
The officers testimony did not establish enough facts about the specific situation
which, in conjunction with Officer Flugrath's knowledge of driving while
intoxicated violations would support a reasonable suspicion of such a violation
by Thacker. See Gamble, 8 S.W.3d at 454. There is no evidence of when Thacker
drove on the highway or that he was legally intoxicated at that time. Further on the
facts of this case he could have parked along side the railroad track, drank rum
from the bottle, then fell asleep.
Therefore, given the totality of the circumstances as determined from the
trial court's, at best, limited findings of fact and Officer Flugrath's speculative
testimony, this Court should find that Officer Flugrath lacked reasonable suspicion
to detain Thacker. See Terry, 392 U.S. at 21-22; York, 342 S.W. 3d 536.
20
POINT OF ERROR NO. TWO
THE TRIAL COURT ERRED IN FAILING TO GRANT
THACKER'S MOTION TO SUPPRESS ORAL STATEMENTS
AS THEY WERE CUSTODIAL INTERROGATIONS THAT
VIOLATED THE LAW.
Thacker asserts that he was questioned while in custody without being first
warned of his rights and without voluntarily waiving those rights, and that any
evidence obtained as part of that questioning should not be used against him at
trial. See Miranda v. Arizona, 384 U.S. 436, 479 (1966); see also Tex. Code Crim.
Proc. Ann. Art. 38.22 . Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App.
1996).
A. Standard of Review
In reviewing a trial court's ruling on a Miranda-violation claim, an appellate
court conducts a bifurcated review: it affords almost total deference the trial
judge's rulings on questions of historical fact and on application of law to fact
questions that turn upon credibility and demeanor, and it reviews de novo the trial
court's rulings on application of law to fact questions that do not turn upon
credibility and demeanor. Ripkowski v. State, 61 S.W/3d 378, 381-52
(Tex.Crim.App. 2001) (citing Guzman v. State, 955 S.W.2d 85,89 (Tex.Crim.App.
1997)). The decision as to whether custodial questioning constitutes "interrogation"
21
under Miranda is a mixed question of law and fact, and appellate court's defer to
the trial court's fact findings that turn on an evaluation of credibility and demeanor.
See id. If credibility and demeanor are not necessary to the resolution of an issue,
whether a set of historical facts constitutes custodial interrogation under the Fifth
Amendment is subject to de novo review because that is an issue of law: it requires
application of legal principles to a specific set of facts. See id.; see also Riley v.
United States, 923 A.2d 868, 883-84 (D.C.App. 2007), cert. denied, 555 U.S. 830,
(2008) ("[W]e review de novo whether the defendant's rights were `scrupulously
honored' and whether the police conduct constituted `interrogation' because these
are questions of law.").
B. Custodial Interrogation
Being in custody is distinguishable from being held as part of a temporary
investigative detention. See Abernathy v. State, 963 S.W.2d 822, 824 n. 4
(Tex.App.-San Antonio 1998, pet. ref'd). An officer who lacks probable cause but
whose observations led to a reasonable suspicion that a particular person has
committed, is committing, or is about to commit a crime, may detain that person
briefly in order to investigate the circumstances that provoke the suspicion.
Berkemer v. McCarty, 468 U.S. 420, 439 (1984); see also Terry v. Ohio, 392 U.S.
at 30 (discussing an officer's restricted search when he reasonably concludes that
22
criminal activity may be afoot). The officer may ask a moderate number of
questions to determine the person's identity and to try to gather information to
confirm or dispel the officer's suspicions. McCarty, 468 U.S. at 439.
Like a temporary investigative detention, a traffic stop does not exert "upon
a detained person pressures that sufficiently impair his free exercise of his
privilege against self-incrimination to require that he be warned of his
constitutional rights." Id. at 437. This is for two reasons: Traffic stops tend to be
brief, so drivers expect to answer a few questions and be on their way shortly.
Also, traffic stops tend to be in public rather than at a station house, so drivers do
not feel completely at the mercy of the police. Id. at 437-39. Neither of these
circumstances existed in this case. After the care-taking investigation Thacker was
not released.
In this case it is important to observed that in determining whether an
individual was in custody the ultimate inquiry is simply whether there was a formal
arrest or restraint on freedom of movement to the degree associated with a formal
arrest. California v. Beheler, 463 U.S. 1121, 1125 (1983). The relevant question is
not the officer's subjective intent, but rather how a reasonable person in the
suspect's position would have understood the situation. McCarty, 463 U.S. at 442.
The “reasonable person" standard assumes an innocent person. Dowthitt, 931
23
S.W.2d at 254. The officer's subjective view that the individual under questioning
is a suspect, if undisclosed, is irrelevant to the question of whether an individual is
in custody for Miranda purposes. Stansbury v. California, 511 U.S. 318, 324
(1994).
The traffic stop in this case was not an investigative detention based on a
reasonable suspicion that a crime was being committed. Specifically, no one, law
enforcement or otherwise, had observed Thacker speeding, weaving between lanes
without signaling, or otherwise engage in activity that might be associated with a
traffic offense. The questioning and field sobriety tests occurred at a private
railway easement in the middle of the night. Thacker would have felt completely
at the mercy of the police and would not have expected to be able to proceed along
his way if he passed the field sobriety tests. Because Thacker was in custody when
he made the oral statements, the statements were improperly admitted against him
at trial.
POINT OF ERROR NO. THREE
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
CONVICT THACKER OF “OPERATING” A MOTOR
VEHICLE
Thacker asserts that the evidence is legally insufficient to prove he
committed the offense of driving while intoxicated. In particular, he asserts that
there is no evidence that he was “operating” a motor vehicle while intoxicated.
24
When reviewing the sufficiency of the evidence to support a conviction, this
Court consider all of the evidence in the light most favorable to the verdict to
determine whether, based on the evidence and reasonable inferences therefrom,
any rational fact-finder could have found the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319(1979);
Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013); see Brooks v.
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). It is not necessary that the
evidence directly proves the defendant's guilt; circumstantial evidence is as
probative as direct evidence in establishing the guilt of the actor, and
circumstantial evidence alone can be sufficient to establish guilt. Carrizales v.
State, 414 S.W. 3d 737, 742 (Tex. Crim. App. 2013); Hooper v. State, 214 S.W.
3D 9, 13 (Tex. Crim. App. 2007).
Restated the issue on appeal is not whether this Court believes the State's
evidence or believes that Thacker's evidence outweighs the State's evidence.
Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may
not be overturned unless it is irrational or unsupported by proof beyond a
reasonable doubt. Matson v. State, 819 S.W.2d. 830, 846 (Tex. Crim. App.1991).
The trier of fact "is the sole judge of the credibility of the witnesses and of the
strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.
25
1999). The trier of fact may choose to believe or disbelieve any portion of the
witnesses' testimony. Sharp v. State, 707 S.W2d 611, 614 (Tex. Crim. App. 1986).
When faced with conflicting evidence, this Court presumes the trier of fact
resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d
43,47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt, this Court
will affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
T h e State convicted Thacker of driving while intoxicated under section
49.04 of the Texas Penal Code. Thus, it was obligated to have shown, beyond
reasonable doubt, that Thacker was “intoxicated while operating a motor vehicle in
a public place.” TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2013).
One is intoxicated when he lacks the normal use of his mental or physical
faculties by reason of the introduction of alcohol, among other substances, into his
body or when having a blood alcohol concentration of 0.08 or more. Id. § 49.01(2).
And, though the statute does not define the term “operate,” our Court of Criminal
Appeals has held that a person operates a vehicle when the totality of the
circumstances demonstrate that he “took action to affect the functioning of his
vehicle in a manner that would enable the vehicle’s use.” Kirsch v. State, 357
S.W.3d 645, 650-51 (Tex. Crim. App. 2012); Denton v. State, 911 S.W.2d 388,
26
389 (Tex. Crim. App. 1995), quoting Barton v. State, 882 S.W.2d 456 (Tex. App.
—Dallas 1994, no pet.). In other words, the circumstances must illustrate that the
“defendant exerted personal effort upon his vehicle for its intended purpose.”
Denton v. State, 911 S.W.2d at 389, quoting Barton v. State, supra. Thacker
contends that the State failed to prove he was operating the vehicle as
contemplated by the statute.
The record illustrates that Officer Tucker found Thacker alone, slumped
over, asleep in the seat of his car in the middle of the night of September 14,
2012. (TR. Vol. 4, 55) The vehicle was parked on a private railroad easement,
along Union Pacific railroad tracks. Id. The vehicle was at least 20 to 25 feet
from a public roadway. Id. So far from the highway that Officer Tucker at first
had difficulty even finding the vehicle.(TR. Vol. 4, 56). While its motor was
running, its transmission was not engaged; that is, it was in park. (TR. Vol. 4, 68).
No signs of containers holding alcoholic substances were found around the vehicle
until after Thacker had been arrested for driving while intoxicated. (TR. Vol. 4,
71). How long Thacker and his vehicle were at the locale went unmentioned, as did
the time at which he arrived there.
Whether Thacker began ingesting alcoholic substances at a locale prior to
arriving at the private railroad easement went undeveloped, as did whether
27
Thacker had ingested intoxicating substances while parked.
There is no evidence of the vehicle’s transmission being engaged, as in
Dornbusch v. State, 262 S.W.3d 432 (Tex. App.—Fort Worth 2008, no pet.).3
Although Thacker had driven the car, as in Reynolds v. State, 744 S.W.2d 156
(Tex. App.—Amarillo 1987, pet. ref’d) there is no record that he had consumed
intoxicating substances prior to driving or that he was legally intoxicated while
driving4. Nor was the vehicle running while actually on the roadway, as in Barton
v. State, supra and Pope v. State, 802 S.W.2d 418 (Tex. App.—Austin 1991, no
pet.) and Hernandez v. State, 773 S.W.2d 761 (Tex. App.—San Antonio 1989, no
pet.). Nor was the vehicle found running in a moving lane of traffic, as in Hearne
v. State, 80 S.W.3d 677 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Nor is
there evidence that Thacker attempted to manipulate the vehicle’s controls, like the
steering wheel, gear lever, brakes, or accelerator, as in Barton v. State, supra, or
Hernandez v. State, supra. Each of those prosecutions may have involved someone
finding someone awake or asleep behind a steering wheel of an idling car, yet,
each had more indicia allowing a fact finder to reasonably infer that the accused
took action to affect the functioning of his vehicle in a manner that would enable
3 Indeed, that the car was in gear was the determinative factor according to the justice who
concurred in Dornbusch v. State, 262 S.W.3d 432, 438-39 (Tex. App.—Fort Worth 2008, no
pet.) (concurring).
4 Although Thacker had consumed alcohol the evidence was insufficient to determine when
and where he consumed alcohol at levels to be legally intoxicated under the DWI law.
28
the vehicle’s use or that the defendant exerted personal effort upon his vehicle for
its intended purpose. Here, however, Thacker was simply found asleep in a running
vehicle while parked off the roadway and totally on a private railway easement.
In this case there is no direct or circumstantial evidence appears of record
enabling a reasonable fact finder to infer that Thacker operated his vehicle while
intoxicated.
POINT OF ERROR NO. FOUR
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
CONVICT T H A C K E R O F O P E R A T I N G A M O T O R
VEHICLE IN A “PUBLIC PLACE”.
Thacker asserts that the evidence is legally insufficient to prove he
committed the offense of driving while intoxicated because there is no
evidence that he was operating a motor vehicle in a “public place” while
intoxicated.
A public place is defined as "any place to which the public or a substantial
group of the public has access." Tex. Pen. Code Ann. § 1.07(a)(40). The remaining
portion of section 1.07(a)(40) contains a nonexclusive list of illustrative examples,
including "but not limited to, streets, highways, and the common areas of schools,
hospitals, apartment houses, office buildings, transport facilities, and shops." In
determining whether a place is public, the relevant inquiry is whether the public
has access to it. Shaub v. State, 99 S.W.3d 253,256 (Tex.App.-Fort Worth 2003,
29
no pet.); Loera v. State, 14 S.W.3d 464, 467 (Tex.App.-Dallas 2000, no pet.);
State v. Nailor, 949 S.W.2d 357 (Tex.App.-San Antonio 1997, no pet.). When
proof is sufficient courts have held that parking lots that are plainly open to the
public or a substantial group of the public are public places. See e.g. Holloman v.
State, No. 11-95-275-CR, 1995 WL 17212433 (Tex.App.—Eastland 1995) (not
designated for publication).
The parking lot was a common area for the complex. The manager of
the complex testified that the entire complex was surrounded by a metal
fence, that the complex had between 200 and 300 residents, and that the
parking lot was a common area for the complex. When a resident moved
into the complex, the resident received a “gate card” which would
“electronically trigger the gate
Also see e.g., In re W.T.O., No. 03-01-00630-CV,2002 Tex. App. LEXIS 8214, at
*7 (Austin Nov. 21, 2002, no pet. h.) (mem. op.) (apartment house parking lot);
Nailor, 949 S.W.2d at 359 (hotel parking garage even though people must pay to
enter); Kapuscinski v. State, 878 S.W.2d 248, 250 (Tex.App.-San Antonio 1994,
pet. ref'd) (mall parking lot); Thibaut v. State, 782 S.W.2d 307, 309 , (Tex.App.-
Eastland 1989, no pet.) (parking lot of condominium complex).
However these parking lot cases are distinguishable because here the record is
devoid of testimony that would reasonably support a finding that the private
railroad easement away from the roadway was plainly open to the public.
Second “access" is commonly defined as "an opportunity or ability to
30
enter, approach, pass to and from, or communicate with." Black's Law Dictionary
13 (7th ed. 1999). Generally, the front yard of a residence and areas leading to the
porch are all locations to which the public might have access. See Loera, 14
S.W.3d at 469 . It has further been recognized "that anyone, be it law enforcement
officer or common citizen, has the right to approach an appellant's front door."
Cornealius v. State, 900 S.W.2d 731, 734 (Tex.Crim.App. 1995). However the
record is devoid that anyone had a similar right to be upon the private railroad
easement when Thacker was initially located.
Third, this case is similar to Commander v. State, 748 S.W.2d 270 (Tex.
App.-Houston [14th Dist.] 1988, no writ), in which an officer saw the defendant
leaning against a van in a private driveway. 748 S.W.2d at 272. The defendant's
eyes were glassy, he smelled of alcohol, and he seemed unsteady. Id. The
Commander court held that "under the limited circumstances presented" the officer
did not have sufficient probable cause to arrest the defendant for public
intoxication. Id.
Moreover this case is in contrast to State v. Nailor, 949 S.W.2d 357, 359
(Tex.App.-San Antonio 1997, no pet.). The issue in Nailor was determining
whether a place was "public" by asking whether the public could enter the
premises. Nailor had been arrested for driving while intoxicated in a Holiday Inn
31
parking lot that was open to the public 24 hours a day. The evidence also showed
that Holiday Inn advertised and rented monthly parking permits and in fact,
solicited the public to use the lot. Thus, Nailor and similar cases should not be
controlling and extended to the facts presented here.
This case is closer to Fowler v. State, 65 S.W.3d 116 (Tex.App.—Amarillo
2001, no pet.) (Unpaved driveway of a rural residence located approximately 1/4
mile from a country road in an isolated and secluded part of county was not a
“public place.” ). As in Fowler although it is reasonable to infer that Thacker
traveled on a public road to arrive where he was parked along the private railway
easement, see Loera v. State, 14 S.W.3d at 468, the State did not attempt to
establish when Thacker entered the railway easement or his state of intoxication
at that time he had been on the highway.
POINT OF ERROR NO. FIVE
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
CONVICT THACKER OF OPERATING A MOTOR
VEHICLE WITHOUT NORMAL USE OF FACILITIES.
`
In Texas every person who drinks alcoholic beverages will not automatically
become intoxicated under our driving while intoxicated (DWI) statute Tex. Pen.
Code Ann. § 49.04 Findlay v. State, 9 S.W.3d 397, 400 (Tex.App.-Houston [14th
Dist.] 1999). The purpose of the statute is to protect the safety of those traveling
on the roads by prohibiting intoxicated persons from driving a vehicle. Id In
32
contrast the DUI statute, by contrast, was enacted as part of a “zero tolerance”
standard for minors driving under the influence of alcohol in an effort to prevent
the loss of federal highway funding. Senate Criminal Justice Comm., Bill
Analysis, Tex. S.B. 35, 75 th Leg., R.S. (1997). Further, the statute was enacted
to “create a separate offense for driving under the influence of alcohol.” Id. The
DUI statute itself provides that DUI is not a lesser included offense of DWI. Tex.
Alco. Bev.Code Ann. § 106.041(g) (Vernon Supp.1998).
Assuming arguendo that the evidence supports a finding that Thacker was
intoxicated at the time of Officer Tucker's and/or Officer Flugrath's encounter
with him, neither this evidence nor any evidence introduced at trial constitutes
independent evidence of (1) how recently the vehicle was driven or (2) how much
time elapsed between when Thacker had driven and his discovery along side the
railway by Officer Tucker. See Stoutner v. State, 36 S.W.3D 716, 721 (Tex.App.-
Houston [1st Dist.]2001, pet. ref'd); Weaver v. State,721 S.W.2d 495, 498
(Tex.App.-Houston [1st Dist.] 1986, pet. ref'd). As stated in Scillitani v. State,
297 S.W.3d 498 (Tex.App.-Houston [14th Dist.] 2009) “If law enforcement
officers do not observe an accused operating a motor vehicle, evidence that the
accused was intoxicated when law enforcement officers arrived on the scene,
alone, does not establish that the accused was intoxicated at the prohibited time —
33
while the accused was operating a motor vehicle in a public place. See Stoutner,
36 S.W.3d at 721; Weaver, 721 S.W.2d 495, 498. Absent evidence in the record
establishing the time of the accident or of the accused's driving in a public place,
the evidence is legally insufficient to show that the accused drove while he was
intoxicated.”
POINT OF ERROR NO. SIX
THACKER'S LIFE SENTENCE WAS
CRUEL AND UNUSAL PUNISHMENT.
The jury convicted Thacker of the felony offense of driving while
intoxicated, subsequent offense. Thacker's punishment was enhanced by two prior
felony convictions for the offense of driving while intoxicated and he was assessed
life sentence. Thacker asserts that the sentence of life imprisonment is "grossly
disproportionate" to the offense that he committed and thus constitutes cruel and
unusual punishment. Thacker preserved error on this point by making a timely,
specific objection to the trial court. See U.S. Const. amend. VIII; Graham v.
Florida, 560 U.S. 48, 59-60 (2010); see also Ewing v. California, 538 U.S. 11
(2003); Harmelin v.Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277
(1983); Rummel v.Estelle, 445 U.S. 263 (1980). A sentence of life imprisonment
or of similar length has been found not grossly disproportionate to a felony
offense that is committed by a habitual offender, even when the felony is not
34
inherently violent in nature. See, e.g., Rummel, 445 U.S. at 284-85 (holding that
sentence of life imprisonment for offense of obtaining $120.75 by false pretenses
not excessive); Winchester v. State, 246 S.W.3d 386, 390-91 (Tex. App.-Amarillo
2008, pet. ref'd) (holding that consecutive life sentences for the offenses of
retaliation and failure to appear were not grossly disproportionate because of
defendant's criminal history); Vrba v. State, 69 S.W. 3d 713, 716, 724-725 (Tex.
App.-Waco 2002, no pet.) (holding that 60-year sentence for DWI conviction was
not grossly disproportionate and did not violate defendant's Eighth Amendment
rights because of defendant's prior criminal history). Nevertheless even though
contrary to the unpublished opinion in Davidson v. State, 03-13-00708-CR
(Tex.App.-Austin 8-1-2014) the issue is raised instantly for purposes of further
review. A sentence is grossly disproportionate to a crime only when an objective
comparison of the gravity of the offense against the severity of the sentence reveals
the sentence to be extreme. Harris v. State, 204 S.W.3d 19, 29 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref'd); Hicks v. State, 15 S.W.3d 626, 632 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref'd). Also see generally, Nunn v. State,
14-14-00704-CR (Tex.App.-Houston [14th Dist.] 4-9-2015) (unpublished). The
life sentence in this case plainly meets this test.
35
PRAYER
For the reasons stated in this brief, Thacker asks the court to reverse the trial
court’s order of adjudication and disposition.
Respectfully submitted,
Gerald C. Moton
11765 West Avenue, PMB 248
San Antonio, TX 78216
Tel: (210) 410-8153;Fax: (210) 568-4389
motongerald32@gmail.com
By: /s/Gerald C. Moton
Gerald C. Moton, TX SBN. 14596350
ATTORNEY FOR RESPONDENT
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing
Jennifer Anne Tharp for Appellee, Criminal District Attorney of Comal County,
Texas, 150 N. Seguin Avenue, Suite 307, New Braunfels, Texas 78130-5122 by
electronic delivery on this 17th day of April, 2015.
BY:/s/Gerald C. Moton
GERALD C. MOTON
STATE BAR NO.:14596350
37
CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the typeface requirements
of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface
no smaller than 14-point for text and 12-point for footnotes. Relying on the word
count function in the word processing software used to produce this document, I
further certify that this document also complies with the word-count limitations of
Tex. R. App. P. 9.4(i), if applicable, because it contains 7285 words, excluding
any parts exempted by Tex. R. App. P. 9.4(i)(1).
BY:/s/Gerald C. Moton
GERALD C. MOTON
STATE BAR NO.:14596350
38