ACCEPTED 03-14-00334-CR 7575570 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/28/2015 11:36:08 AM JEFFREY D. KYLE No. 03-14-00334-CR CLERK
FILED IN In the Third Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS Austin, Texas 10/28/2015 11:36:08 AM JEFFREY D. KYLE Clerk
TERAN PENNICK, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court-at-Law Number Six, Travis County, Texas Trial Cause No. C-1-CR-13-200027
STATE’S BRIEF
DAVID A. ESCAMILLA TRAVIS COUNTY ATTORNEY
GISELLE HORTON ASSISTANT TRAVIS COUNTY ATTORNEY State Bar Number 10018000 Post Office Box 1748 Austin, Texas 78767 Telephone: (512)854-9415 TCAppellate@traviscountytx.gov
October 28, 2015 ATTORNEYS FOR THE STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE STATE’S ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT
Reply Point One: If the point is preserved and presents anything for review, the volunteered statements were admissible.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Pennick’s contentions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The standard of review and general legal principles. . . . . . . . . . . . . . . 8
The trial objection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Pennick failed to preserve error for review. . . . . . . . . . . . . . . . . . . . . . 10
If Pennick preserved error, his first point presents nothing for review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Furthermore, Pennick’s statements, whatever they were, were admissible against him at trial because they were volunteered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
i Reply Point Two: The evidence is legally sufficient to sustain the judgment of conviction for driving while intoxicated. . . . . . . . . . . . . 13
Pennick’s first legal-sufficiency question: Was the evidence legally insufficient because the testimony regarding his intoxication when he drove off to shoot fireworks was somewhat conflicting?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Pennick’s second legal-sufficiency question: Was the ditch in which the highly intoxicated Pennick was found a public place?. . . 15
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ii INDEX OF AUTHORITIES
Constitutional Page U.S. CONST. Amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Statutes TEX. CODE CRIM. P. art. 38.21 (West 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 TEX. CODE CRIM. P. art. 38.22 § 5 (West Supp. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 TEX. PENAL CODE § 1.07(a)(40) (West Supp. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 TEX. PENAL CODE § 49.04(a) (West Supp. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Rules TEX. R. APP. P. 33.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 TEX. R. APP. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 TEX. R. EVID. 101(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Cases Alvarado v. State, 912 S.W.2d 199 (Tex. Crim. App. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Kindle v. State, No. 05-01-01818-CR, 2003 Tex. App. LEXIS 9774 (Tex. App.—Dallas Nov. 18, 2003, no pet.) (mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . . . . 17 Kirtley v. State, 585 S.W.2d 724 (Tex. Crim. App 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 iii Kotaska v. State, No. 03-01-00438-CR, 2002 Tex. App. LEXIS 2549 (Tex. App.—Austin April 11, 2002, no pet.) (not designated for publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Lape v. State, 893 S.W.2d 949 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). . . . . . . . . . . . . . . . 12 Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on rehearing). . . . . . . . . . . . . . . . . . . . . . . . 8 Murray v. State, 457 S.W.3d 446 (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Perry v. State, 991 S.W.2d 50 (Tex. App.—Fort Worth 1998, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . 17 Rhode Island v. Innis, 446 U.S. 291 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Sanchez-Tapia v. State, No. 07-14-00203-CR, 2015 Tex. App. LEXIS 2273 (Tex. App.—Amarillo March 10, 2015, pet. ref’d) (mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . . . . 16 Torres v. State, 979 S.W.2d 668 (Tex. App.—San Antonio 1998, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 11 Woodruff v. State, 899 S.W.2d 443 (Tex. App.—Austin 1995, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iv STATEMENT OF THE CASE
This is a defense appeal from a jury conviction for an enhanced
1 misdemeanor DWI offense, alleged to have been committed on January 1,
2 2013. CR 11, 42. On May 7, 2014, the trial court assessed punishment and
sentenced Pennick to one year’s confinement in the Travis County Jail and
a $4,000 fine, but suspended imposition of this sentence and placed
Pennick on community supervision for two years. CR 57–60 (judgment
nunc pro tunc). Pennick gave written notice of appeal on May 19, 2014.
CR 51.
ISSUES PRESENTED
Issue One: State’s Exhibit #4 is a recording taken from the arresting
officer’s dashboard video camera. The trial court admitted the entire
exhibit over the defense relevancy objection. Does Rule 403 require the
1 ?A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” TEX. PENAL CODE § 49.04(a) (West Supp. 2014). 2 The information’s enhancement paragraph alleged, and the jury found, that Pennick had a blood-alcohol concentration of 0.15 or more at the time the analysis was performed. CR 11, 42. 1 court to exclude Pennick’s numerous ?derogatory and inflammatory”
statements about and to the arresting officer contained in State’s Exhibit
#4?
Issue Two: When police arrived, the intoxicated Pennick was in the
driver’s seat of a car, engine running and wheels spinning, trying to
extricate it from a muddy drainage ditch at the side of the road. Is the
evidence legally insufficient to sustain the judgment because (1) the
testimony regarding Pennick’s intoxication when he actually drove on a
public roadway is conflicting; or because (2) the ditch in which he was
found—operating a car and indisputably intoxicated—was not a public
place?
BACKGROUND
Teran Pennick and his girlfriend, Shaunna Johnson, arrived at a New
Year’s Eve party at around five o’clock p.m. 3 RR 26. Johnson’s niece,
Chassie Nuckols, was there, too. 3 RR 27. Pennick drank beer and
margaritas during most of his time at the party. 3 RR 27.
2 They all left about six hours later, around 11:00 p.m. 3 RR 27. Pennick
dropped Johnson off at Nuckols’ house, then drove Johnson’s car to go
shoot off fireworks with friends. 3 RR 30; 4 RR 28. When Pennick did not
return before midnight, Johnson and Nuckols set out to find him. 3 RR 31;
4 RR 16.
They found him behind the wheel of Johnson’s car, engine running
and tires spinning in the mud in a drainage ditch next to the road. 3 RR 31,
59; 4 RR 16. Johnson and Pennick began to argue heatedly. 4 RR 17. About
twenty minutes after midnight, Johnson called the police, who arrived six
minutes later. 3 RR 55.
When Travis County Sheriff’s Deputy Orts got there, Pennick was
?ranting and raving; screaming; walking around; [he] didn’t seem to be
oriented to what was going on.” 3 RR 60. When the deputy asked Pennick
to come talk to her, he cursed her. 3 RR 61. He approached Orts in an
aggressive manner, body forward and arms bowed. 3 RR 61. ?He was
coming at me with a look that I felt he was about to assault me.” 3 RR 61.
3 He also had his hand in his waistband—?always a hazard”—as though he
were concealing a weapon. 3 RR 61.
Orts told Pennick to back away and get on the ground. She warned
him at least twice that he could be tased if he did not. 3 RR 62. When
Pennick continued to advance on her, she feared for her safety and tased
him from a range of ten to twelve feet. 3 RR 62. She tased him a second
time when he still would not comply with her commands. 3 RR 62.
Afterwards, Pennick’s emotional state was much as before: extreme anger
and aggression. But now, extreme vulgarity and acrimonious name-calling
directed at Orts were tempered with apologies and brief, occasional bouts
of crying. 3 RR 66; see, e.g., 6 RR State’s Exhibit #4 @ 32:52–34:30,
41:51–42:18, 1:15:15–1:15:45. Pennick told the deputy several times that he
had been driving, and that he was the one who had driven the car into the
ditch. 3 RR 111; 6 RR State’s Exhibit #4 @ 38:50, 39:40, 1:09:35. Pennick also
admitted that he had been drinking that night. 3 RR 79; 6 RR State’s Exhibit
#4 @ 1:09:35.
4 After Pennick refused to provide a breath or blood sample, Orts
secured a warrant to draw a blood sample. 3 RR 67–68. His blood was
drawn while he was in a restraint chair, at 3:59 a.m. on January 1,
2013—about three and a half hours after police first encountered him. 3 RR
122. Analysis showed a blood-alcohol content of 0.157. 3 RR 154.
SUMMARY OF THE STATE’S ARGUMENT
Summary of Reply Point One: Pennick’s first point is waived for two
reasons. First, he failed to preserve the point for review because his trial
relevancy objection to certain statements in State’s Exhibit #4 fails to
comport with his Rule 403 contention on appeal.
Additionally, Pennick waived his first point because it presents
nothing for review. He complains of the trial court’s admitting ?a number
of derogatory and inflammatory statements aimed at and about the
arresting officer in this case[,]” but fails to apprise the Court of the specific
statements at issue or where in State’s Exhibit #4 they may be found.
Pennick therefore asks the Court not only to do his work for him but also
to do the impossible: to comb through the hundred of statements in the 5 exhibit and detect those that, in counsel’s estimation, are ?derogatory and
inflammatory.”
Even if Pennick had not waived the point, virtually all of his
statements on State’s Exhibit #4 were volunteered and hence admissible
under constitutional and statutory provisions.
Summary of Reply Point Two: Pennick’s two legal-sufficiency
arguments rely on (1) a defense-favorable view of one shred of conflicting
intoxication testimony, and (2) appellate counsel’s speculation that the
ditch in which he was found might have been private property. These
arguments misapply the standard of review. Viewing the evidence in the
light most favorable to the verdict, any rational trier could have found
beyond a reasonable doubt that (1) Pennick was intoxicated while
operating a motor vehicle (2) in a public place.
6 ARGUMENT
Reply Point One: If the point is preserved and presents anything for review, the volunteered statements were admissible.
Pennick’s contentions
Pennick contends that the trial court abused its discretion in
admitting, over his Rule 403 objection, certain undisclosed portions of
State’s Exhibit #4. He states:
The Appellant made a number of derogatory and inflammatory statements aimed at and about the arresting officer in this case. (R.R. III 73-78). These statements were made following the use of a taser by the officer on the Appellant. (R.R. III 56-64). These statements for the most part were not made in reaction to any questions by the arresting officer, but freely made by the Appellant.
Pennick’s Brief, p. 8. He speculates that the derogatory and inflammatory
statements ?very probably” negatively affected the jurors’ opinion of him.
Pennick’s Brief, pp. 7, 9. He reasons that the statements were inadmissible
because, with all the other intoxication evidence at the State’s disposal, the
statements were ?not particularly probative[.]” Pennick’s Brief, pp. 9–10.
7 The standard of review and general legal principles
Rulings on the admission of evidence are reviewed under the abuse-
of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1991) (op. on rehearing). Rule 403 sets out when, in its discretion, a
trial court may exclude relevant evidence for unfair prejudice, confusion,
or other reasons.
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.
TEX. R. EVID. 403.
When undertaking a Rule 403 analysis, a trial court must balance (1)
the inherent probative force of the proffered items of evidence along with
(2) the proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not
been equipped to evaluate the probative force of the evidence, and (6) the 8 likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted. Gigliobianco v.
State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
The trial objection
At trial, the defense objected to
the playing of the audio during this segment where he calls [the deputy] all kinds of names. I don’t think it is relevant to intoxication. . . . [The prosecutor wants] to introduce it, if I understand right, for signs of intoxication. We are saying it is just prejudicial to get the jury to hate him.
3 RR 74. The prosecutor responded that the admissions and the comments
were admissible to show intoxication, and were volunteered statements
made after arrest. ?Of course it is prejudicial, Your Honor. This is a DWI
case and we intend to show that the defendant was intoxicated.” 3 RR 75.
The prosecutor also argued that, because defense counsel had alluded in
opening statement to an unreasonable use of police force, State’s Exhibit #4
was the best evidence of Pennick’s demeanor when considering whether
the force used was reasonable. 3 RR 76. After the parties explained the
9 ?gist” of the statements and admissions, the trial court remarked that the
State had the stronger argument. 3 RR 78.
Pennick failed to preserve error for review.
Pennick did not invoke Rule 403 at trial, but instead objected to the
name-calling portion of State’s Exhibit #4 on relevancy grounds. Counsel’s
mere remark that the statements were prejudicial and that the State had
other intoxication evidence would not have put a trial court fairly on notice
that the statements’ probative value was substantially outweighed by a
danger of unfair prejudice, confusing the issues, misleading the jury,
undue delay, or needlessly presenting cumulative evidence. Kotaska v.
State, No. 03-01-00438-CR, 2002 Tex. App. LEXIS 2549, at *7 (Tex.
App.—Austin April 11, 2002, no pet.) (not designated for publication).
Because the contention on appeal does not comport with the trial objection,
nothing is preserved for review. TEX. R. APP. P. 33.1(a); Id.
10 If Pennick preserved error, his first point presents nothing
for review.
Pennick contends that ?the inflammatory statements” were
erroneously admitted. This gives the reader nothing to analyze under
Gigliobianco. Which of the hundreds of statements in State’s Exhibit #4 does
Pennick believe are ?inflammatory” and inadmissible? The reader must
simply guess at this.
Pennick is implicitly asking this Court to forsake its role as a neutral
arbiter and become an advocate for the defense by combing through the
exhibit and making specific arguments for him. But reviewing courts
decline to do this. Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App.
2000). The rules of appellate procedure require the appellant either to set
out the complained-of statements or to point to the place in State’s Exhibit
#4 where they may be found. TEX. R. APP. P. 38.1(i). Because Pennick has
not done so, his first point presents nothing for review and is waived. Id.;
Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995); Torres v. State,
11 979 S.W.2d 668, 671 (Tex. App.—San Antonio 1998, no pet.); Lape v. State,
893 S.W.2d 949, 953 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d).
Furthermore, Pennick’s statements, whatever they were, were
admissible against him at trial because they were volunteered.
Pennick admits that the statements ?for the most part were not
made in reaction to any questions by the arresting officer, but freely made
by the Appellant.” Pennick’s Brief, p. 8. Thus, even though we cannot tell
exactly which volunteered statements Pennick believes should have been
redacted from State’s Exhibit #4, a criminal defendant’s volunteered
statements are admissible against him at trial under the Constitution and
Texas statutes. U.S. CONST. Amend. V; TEX. CODE CRIM. P. arts. 38.21, 38.22
3 § 5 (West 2005 & Supp. 2014); Rhode Island v. Innis, 446 U.S. 291, 299 (1980).
3 A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.
TEX. CODE CRIM. P. art. 38.21. 12 The Constitution and statutes take precedence over the rules of evidence.
TEX. R. EVID. 101(c). The trial court therefore did not abuse its discretion in
admitting the statements.
Reply Point Two: The evidence is legally sufficient to sustain the judgment of conviction for driving while intoxicated.
Pennick’s second point of error contends that the evidence is legally
insufficient ?to show that probable cause existed that appellant operated a
motor vehicle in a public place while intoxicated.” Pennick’s Brief, p. 11.
The clerk’s record does not show that Pennick litigated probable cause
below or filed a motion to suppress the State’s evidence on grounds that
police lacked probable cause to arrest.
Nothing in this article precludes the admission of a statement made by the accused in open court at his trial, . . . or of a statement that is res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law.
TEX. CODE CRIM. P. art. 38.22 § 5.
13 Pennick’s first legal-sufficiency question: Was the evidence legally
insufficient because the testimony regarding his intoxication when he
drove off to shoot fireworks was somewhat conflicting?
Pennick makes two specific legal-sufficiency arguments. First, he
contends that he was ?clearly in a public place when he drove to [the]
location on New Katy Lane. What is not clearly shown is that [he] was
intoxicated during the time he was clearly operating a vehicle in a public
place[,]” because the evidence of intoxication was conflicting. Nuckols
testified that Pennick was intoxicated when he left to go shoot off
fireworks; Johnson implied that he was not intoxicated when she testified
that she never would have lent him her car if he had been. Pennick’s Brief,
pp. 13–14.
Viewing the evidence in the light most favorable to the verdict, any
rational trier could have found that Pennick was intoxicated when he
operated a motor vehicle in a public place. Nuckols testified that Pennick
was intoxicated when he left the New Year’s Eve party, and that his
girlfriend freely gave him the keys to her car even though he was drunk. 3 14 RR 41. The jury is presumed to have resolved all conflicts in favor of the
verdict, and the court defers to that determination. Jackson v. Virginia, 443
U.S. 307, 326 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App.
2012) (jury is the sole judge of credibility and weight to be attached to
witness testimony). Furthermore, the intoxilyzer expert estimated that
Pennick was somewhere in the .192 to .262 breath-alcohol content range
when he first came into contact with the police. 3 RR 158. The jury
therefore could have inferred that he was intoxicated about an hour and
twenty minutes before that, when he left the New Year’s Eve party. 3 RR
158. Pennick’s first contention under his legal-sufficiency point of error
fails to view the evidence in the light most favorable to the verdict, as the
standard of review requires. Jackson, 443 U.S. at 319; Murray v. State, 457
S.W.3d 446, 448 (Tex. Crim. App. 2015).
Pennick’s second legal-sufficiency question: Was the ditch in
which the highly intoxicated Pennick was found a public place?
Pennick also contends that the ditch in which police found him was
not a ?public place” because ?[t]he ditch is clearly on an individual’s 15 private property.” Pennick’s Brief, p. 14. The State does not understand
Pennick to contest the legal sufficiency of the ?operation” evidence.
A ?public place” is ?any place to which the public or a substantial
group of the public has access and includes, but is not limited, to streets,
highways, and the common areas of schools, hospitals, apartment houses,
office buildings, transport facilities, and shops.” TEX. PENAL CODE §
1.07(a)(40) (West Supp. 2014). If the public has any access to the place in
question, it is a public place within the meaning of the Penal Code.
Woodruff v. State, 899 S.W.2d 443, 445 (Tex. App.—Austin 1995, pet. ref’d).
Whether a place is public is a fact issue for the trier. Kirtley v. State, 585
S.W.2d 724, 276 (Tex. Crim. App 1979); Sanchez-Tapia v. State, No. 07-14-
00203-CR, 2015 Tex. App. LEXIS 2273, at *9 (Tex. App.—Amarillo March 10,
2015, pet. ref’d) (mem. op., not designated for publication).
Nothing shows that the ditch in which Pennick was found was
located on private property, as he now contends. And location on private
property would not preclude the ditch’s meeting the Penal Code’s
definition of public place because, as testimony and State’s Exhibit #4 16 show, any member of the public could readily access it, just as Pennick did.
See Woodruff, 899 S.W.2d at 445; Kindle v. State, No. 05-01-01818-CR, 2003
Tex. App. LEXIS 9774, at *9 (Tex. App.—Dallas Nov. 18, 2003, no pet.)
(mem. op., not designated for publication) (finding that the parking lot of a
privately owned hotel can be considered a ?public place” because the
public has access to it). Nuckols testified that the ditch was accessible
without needing to go through a gate. 3 RR 32, 47–48; see Perry v. State, 991
S.W.2d 50, 52 (Tex. App.—Fort Worth 1998, pet. ref’d) (finding that a park
that is closed at night is still ?public” when there is no gate barring entry).
Deputy Orts testified that the area where she found Pennick ?is accessible
by the public.” 3 RR 59. From this evidence, any rational trier could have
found that the ditch was a public place.
17 PRAYER
For these reasons, the Travis County Attorney, on behalf of the State
of Texas, asks this Court to overrule the points of error and affirm the
judgment of conviction for driving while intoxicated.
Respectfully submitted,
___________________________ Giselle Horton Assistant Travis County Attorney State Bar Number 10018000 Post Office Box 1748 Austin, Texas 78767 Telephone: (512) 854-9415 TCAppellate@traviscountytx.gov
ATTORNEYS FOR THE STATE OF TEXAS
18 CERTIFICATE OF COMPLIANCE
Relying on Corel WordPerfect’s word-count function, I certify that
this document complies with the word-count limitations of TEX. R. APP. P.
9.4. The document (counting all of its parts except for the appendices)
contains 3734 words.
___________________________ Giselle Horton
CERTIFICATE OF SERVICE
I certify that I have sent a complete and legible copy of this State's
Brief via electronic transmission, to Mr. Pennick’s attorney of record, Mr.
David W. Crawford, at dcrawford@crawfordcruz.com, on or before
October 29, 2015.
___________________________ Giselle Horton Assistant Travis County Attorney