Kunkel v. State

46 S.W.3d 328, 2001 WL 224780
CourtCourt of Appeals of Texas
DecidedMay 3, 2001
Docket14-98-01236-CR
StatusPublished
Cited by13 cases

This text of 46 S.W.3d 328 (Kunkel v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kunkel v. State, 46 S.W.3d 328, 2001 WL 224780 (Tex. Ct. App. 2001).

Opinions

MAJORITY OPINION

CANNON, Justice.

Pamela Sue Kunkel was charged with the misdemeanor offense of driving while intoxicated. After the trial court denied her motion to suppress, Kunkel entered a plea of no contest. The trial court found her guilty and assessed punishment at one year in the Harris County Jail, probated for two years, and a $400 fine. On appeal, Kunkel contends that the trial court erred in denying the motion to suppress because the evidence at issue was the fruit of an unlawful citizen’s arrest. We affirm.

Background

At the suppression hearing, Douglas Pittman testified that he was working as a wrecker driver at approximately 2:15 a.m. on May 22, 1998, when he observed a vehicle driven by Pamela Kunkel. He stated that he saw the left two wheels of the car drive onto the center median as she was getting into a left turn lane. She stopped at the red light and, when the light turned green, she made a left turn without a signal. Pittman stated that there were approximately ten other cars at the intersection at that time.

After completing the turn, the vehicle bumped the left curb with its tires. Pittman followed and observed Kunkel’s car repeatedly bump the left curb before moving to the right hand lane and bumping the right curb. He estimated that she crossed the centerline of the road about 20 times in a quarter mile. After the turn, Pittman used his phone to call the police and report Kunkel’s erratic driving. At this time, there were no other vehicles traveling in the same direction as Kunkel and Pittman.

Kunkel then slowed to about two miles per hour before turning right onto another street. She drove down the center of this street for another quarter of a mile before turning into the entrance of a complex of town homes. Pittman pulled his wrecker in behind her, blocking her car between the wrecker and the entrance gate. As she attempted to insert her key card into the reader, he exited his vehicle and took the card from her hand. When she tried to exit the vehicle, he moved in front of the car door so that she could not have gotten out without pushing him aside. He told her to remain seated and that HPD officers would arrive soon. Police officers arrived on the scene within three minutes and eventually took Kunkel into custody.

Kunkel also testified at the suppression hearing. She acknowledged a certain amount of erratic driving that night but claimed that she had dropped a lit cigarette and was trying to find it before it did damage to her car. She said that she drove down the middle of the road to her town home because the street is sunken and cracked in places.

[330]*330She also testified that Pittman pulled in behind her when she was trying to put her key card into the reader for the entrance gate. According to her, Pittman grabbed her hand and pulled the card out of it. She said he screamed, “Citizen’s arrest. You’re not going anywhere,” and he blocked her exit from the vehicle. She further stated that when she attempted to move to the passenger side to exit, Pittman started around the vehicle so she just stayed on the driver’s side.

The court also heard testimony from two HPD officers on the scene. Sergeant Timothy Kubiak and Officer T.J. Allen both testified that it appeared to them when they first arrived that Pittman was preventing Kunkel from exiting her vehicle. Kubiak further testified that each of the moving violations observed by Pittman was no more than a class C misdemeanor.

At the conclusion of the hearing, the trial court denied the motion to suppress. Kunkel then plead no contest to the charges, and the trial court found her guilty and assessed punishment at one year incarceration, probated for two years, and a $400 fine.

Analysis

Appellant contends that the trial court erred in denying the motion to suppress because the evidence was the fruit of an unlawful citizen’s arrest. This issue presents a mixed question of law and fact that does not turn on an evaluation of the credibility and demeanor of the witnesses. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We will, therefore, utilize a de novo standard of review. See id.; Loserth v. State, 963 S.W.2d 770, 773 (Tex.Crim.App.1998).

Article 14.01 of the Texas Code of Criminal Procedure authorizes a private citizen to effect an arrest when a felony or breach of the peace is committed in his presence or within his view.1 Neither side directly contends on appeal that Pittman did not arrest Kunkel. Indeed, ample evidence was introduced at the hearing to support this implied part of the court’s ruling. An arrest is complete when a person’s liberty of movement is restricted or restrained. Hoag v. State, 728 S.W.2d 375, 379 (Tex.Crim.App.1987). See also McGuire v. State, 847 S.W.2d 684, 686 (Tex.App.—Houston [1st Dist .] 1993, no pet.)(citizen’s arrest case). It is undisputed that Pittman parked his wrecker behind Kunkel’s car, trapping it between the entrance gate to the town home complex and the wrecker. He then took her key card out of her hand before she managed to open the gate, and he positioned himself such that she could not exit the vehicle without pushing him out of the way. Kunkel even testified that Pittman started around the vehicle to prevent her from exiting on the passenger side. There was certainly sufficient evidence on which the court could have found that Pittman arrested Kunkel. Furthermore, there has been no allegation that Kunkel committed a felony.

We therefore turn to the question of whether, when the law is applied to the facts, the conduct that Pittman observed amounted to a breach of the peace. See Tex.Code CRIM. Proc. Ann. art. 14.01(a); Guzman, 955 S.W.2d at 89. The generally accepted explanation of what constitutes a “breach of the peace” is contained in [331]*331Woods v. State, 152 Tex.Crim. 338, 213 S.W.2d 685 (1948), which states in part:

Actual or threatened violence is an essential element of a breach of the peace. Either one is sufficient to constitute the offense. Accordingly, where means which cause disquiet and disorder, and which threaten danger and disaster to the community, are used, it amounts to a breach of the peace, although no actual personal violence is employed.

Id., 213 S.W.2d at 687. In other words, a threat of violence to the community is sufficient to constitute a breach of the peace. See id.; Turner v. State, 901 S.W.2d 767, 770-71 (Tex.App.—Houston [14th Dist.] 1995, pet. ref'd).

What constitutes a breach of the peace is to be determined on a case-by-case basis, looking to the facts and circumstances surrounding the act. Turner, 901 S.W.2d at 770. Several courts have found circumstances wherein conduct suggesting that a motorist was driving while intoxicated could be classified as a breach of the peace. See Romo v. State, 577 S.W.2d 251 (Tex.Crim.App.1979); McEathron v. State,

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Kunkel v. State
46 S.W.3d 328 (Court of Appeals of Texas, 2001)

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