REVISED
UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_________________
No. 96-50890 (Summary Calendar) _________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO COLLAZO,
Defendant-Appellant.
Appeal from the United States District Court For the Western District of Texas
July 9, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Orlando Collazo appeals his conviction on one count of
operating a motor vehicle while intoxicated in violation of Texas
Penal Code § 49.04 as incorporated into federal law by the
Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. We affirm.
I
Collazo, a civilian, was stopped for an identification check
at Gate One on Kelly Air Force Base (“Kelly AFB”). Having observed Collazo’s erratic driving, the gate sentry sought to
obtain Collazo’s driver’s license and proof of insurance. When
Collazo rolled down the window of his pickup truck, the sentry
immediately detected the strong smell of alcohol. After some
difficulty, Collazo produced his driver’s license but he was
unable to show evidence of insurance. Collazo was very
inarticulate, and mumbled responses to the sentry’s questions.
Suspecting that Collazo was intoxicated, the sentry demanded
that Collazo surrender his truck keys. The sentry, together with
a couple of other airmen, then ordered Collazo out of the vehicle
and subjected him to a battery of field sobriety tests. After
Collazo failed the tests, he was taken into custody and charged
under the ACA with being “intoxicated while driving or operating
a motor vehicle in a public place” in violation of § 49.04 of the
Texas Penal Code.
The ACA subjects persons on federal lands to prosecution in
federal court for violations of criminal statutes of the state in
which the federal lands are located. The ACA has two main
purposes. First, it fills gaps in the federal criminal code that
governs federal enclaves. United States v. Sharpnack, 355 U.S.
286, 289, 78 S. Ct. 291, 293, 2 L. Ed. 2d 282 (1958). Second, it
conforms the laws regulating a federal enclave to those of the
state in which the enclave is located. Id. at 290-91, 78 S. Ct.
at 294-95. In relevant part, the ACA provides that a person is
-2- subject to federal prosecution under state laws if he or she
“within or upon any [federal land] is guilty of any act or
omission which, although not made punishable by any act of
Congress, would be punishable if committed or omitted within the
jurisdiction of the State . . . .” 18 U.S.C. § 13(a). The ACA
specifically states that it incorporates state penal law
pertaining to “operating a motor vehicle under the influence of a
drug or alcohol . . . .” Id. at § 13(b)(1).
After a bench trial, the district court found that Collazo
was driving while intoxicated on a road in Kelly AFB, a federal
enclave, and thus he was guilty as charged. The district court
then sentenced Collazo to three months’ imprisonment, and ordered
him to pay a one hundred dollar fine and a ten dollar special
assessment.
II
Collazo argues that the district court erred in finding him
guilty because the government did not establish at trial that he
was in a “public place” while driving drunk, as required by
§ 49.04.
In considering an appeal from a criminal conviction in a
bench trial, we will affirm a verdict of guilty if there is any
substantial evidence to support it and if the evidence is
sufficient to justify the trial judge, as trier of fact, in
concluding beyond a reasonable doubt that the defendant was
3 guilty. United States v. Davis, 993 F.2d 62, 66 (5th Cir. 1993).
It is not our task to weigh the evidence or determine the
credibility of witnesses. United States v. Jennings, 726 F.2d
189, 190 (5th Cir. 1984). We must view all evidence in the light
most favorable to the government and defer to all reasonable
inferences drawn by the trial court. United States v.
Richardson, 848 F.2d 509, 511 (5th Cir. 1988). Our review is the
same whether the evidence is direct or circumstantial. United
States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995), cert. denied,
__ U.S. __, 116 S. Ct. 1582, 134 L. Ed. 2d 679 (1996).
Prosecution under the ACA does not enforce state law but
rather federal law assimilating state law. United States v.
Brown, 608 F.2d 551, 553 (5th Cir. 1979). Thus, a state court’s
interpretation of an assimilated state law is merely persuasive
authority. United States v. Kiliz, 694 F.2d 628, 629 (9th Cir.
1982).
The sentry who stopped Collazo testified that he saw Collazo
driving on the three-lane road that led to Gate One and that
Collazo was arrested on General Hudnell Drive where it passes
through Gate One. Photographic evidence in the record supports
this testimony and clearly indicates that Collazo was driving on
a street. A street is defined as “an urban way or thoroughfare”
and “includes all urban ways which can be and are generally used
for travel . . . .” BLACK’S LAW DICTIONARY 1274 (6th ed. 1990).
4 Under Texas law, a street is per se a “public place” for purposes
of § 49.04, and proof of driving on a street is sufficient to
meet the “public place” element of § 49.04. See TEX. PENAL CODE
ANN. § 1.07(a)(40) (defining “public place” as “any place to
which the public or a substantial group of the public has access
and includes, but is not limited to, streets [and] highways”);
King v. State, 732 S.W.2d 796, 803 (Tex. App. 1987, writ ref’d)
(holding that the Texas legislature has declared that streets and
highways, among other locations, are “public places” per se).
While a defendant might argue that a street in a restricted area
of a military base is not a public place, Collazo cannot
seriously make that contention here. He was convicted of driving
while intoxicated on a portion of a street on Kelly AFB which led
up to a checkpoint permitting entry to the main part of the base.
The photographic evidence indicates that any member of the public
can drive up to Gate One without passing through a guarded gate.
One photo, for instance, reveals a public bus in a line of
traffic waiting to enter the base. Another photo shows that Gate
One is adorned with a large “Welcome Kelly AFB” sign. Indeed,
Collazo’s very presence at Gate One suggests that the section of
General Hudnell Drive he was on was a “public place.” Collazo is
a civilian who would not be allowed to enter a restricted area of
a military base without special permission.
While the government did not specifically point out to the
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REVISED
UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_________________
No. 96-50890 (Summary Calendar) _________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO COLLAZO,
Defendant-Appellant.
Appeal from the United States District Court For the Western District of Texas
July 9, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Orlando Collazo appeals his conviction on one count of
operating a motor vehicle while intoxicated in violation of Texas
Penal Code § 49.04 as incorporated into federal law by the
Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. We affirm.
I
Collazo, a civilian, was stopped for an identification check
at Gate One on Kelly Air Force Base (“Kelly AFB”). Having observed Collazo’s erratic driving, the gate sentry sought to
obtain Collazo’s driver’s license and proof of insurance. When
Collazo rolled down the window of his pickup truck, the sentry
immediately detected the strong smell of alcohol. After some
difficulty, Collazo produced his driver’s license but he was
unable to show evidence of insurance. Collazo was very
inarticulate, and mumbled responses to the sentry’s questions.
Suspecting that Collazo was intoxicated, the sentry demanded
that Collazo surrender his truck keys. The sentry, together with
a couple of other airmen, then ordered Collazo out of the vehicle
and subjected him to a battery of field sobriety tests. After
Collazo failed the tests, he was taken into custody and charged
under the ACA with being “intoxicated while driving or operating
a motor vehicle in a public place” in violation of § 49.04 of the
Texas Penal Code.
The ACA subjects persons on federal lands to prosecution in
federal court for violations of criminal statutes of the state in
which the federal lands are located. The ACA has two main
purposes. First, it fills gaps in the federal criminal code that
governs federal enclaves. United States v. Sharpnack, 355 U.S.
286, 289, 78 S. Ct. 291, 293, 2 L. Ed. 2d 282 (1958). Second, it
conforms the laws regulating a federal enclave to those of the
state in which the enclave is located. Id. at 290-91, 78 S. Ct.
at 294-95. In relevant part, the ACA provides that a person is
-2- subject to federal prosecution under state laws if he or she
“within or upon any [federal land] is guilty of any act or
omission which, although not made punishable by any act of
Congress, would be punishable if committed or omitted within the
jurisdiction of the State . . . .” 18 U.S.C. § 13(a). The ACA
specifically states that it incorporates state penal law
pertaining to “operating a motor vehicle under the influence of a
drug or alcohol . . . .” Id. at § 13(b)(1).
After a bench trial, the district court found that Collazo
was driving while intoxicated on a road in Kelly AFB, a federal
enclave, and thus he was guilty as charged. The district court
then sentenced Collazo to three months’ imprisonment, and ordered
him to pay a one hundred dollar fine and a ten dollar special
assessment.
II
Collazo argues that the district court erred in finding him
guilty because the government did not establish at trial that he
was in a “public place” while driving drunk, as required by
§ 49.04.
In considering an appeal from a criminal conviction in a
bench trial, we will affirm a verdict of guilty if there is any
substantial evidence to support it and if the evidence is
sufficient to justify the trial judge, as trier of fact, in
concluding beyond a reasonable doubt that the defendant was
3 guilty. United States v. Davis, 993 F.2d 62, 66 (5th Cir. 1993).
It is not our task to weigh the evidence or determine the
credibility of witnesses. United States v. Jennings, 726 F.2d
189, 190 (5th Cir. 1984). We must view all evidence in the light
most favorable to the government and defer to all reasonable
inferences drawn by the trial court. United States v.
Richardson, 848 F.2d 509, 511 (5th Cir. 1988). Our review is the
same whether the evidence is direct or circumstantial. United
States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995), cert. denied,
__ U.S. __, 116 S. Ct. 1582, 134 L. Ed. 2d 679 (1996).
Prosecution under the ACA does not enforce state law but
rather federal law assimilating state law. United States v.
Brown, 608 F.2d 551, 553 (5th Cir. 1979). Thus, a state court’s
interpretation of an assimilated state law is merely persuasive
authority. United States v. Kiliz, 694 F.2d 628, 629 (9th Cir.
1982).
The sentry who stopped Collazo testified that he saw Collazo
driving on the three-lane road that led to Gate One and that
Collazo was arrested on General Hudnell Drive where it passes
through Gate One. Photographic evidence in the record supports
this testimony and clearly indicates that Collazo was driving on
a street. A street is defined as “an urban way or thoroughfare”
and “includes all urban ways which can be and are generally used
for travel . . . .” BLACK’S LAW DICTIONARY 1274 (6th ed. 1990).
4 Under Texas law, a street is per se a “public place” for purposes
of § 49.04, and proof of driving on a street is sufficient to
meet the “public place” element of § 49.04. See TEX. PENAL CODE
ANN. § 1.07(a)(40) (defining “public place” as “any place to
which the public or a substantial group of the public has access
and includes, but is not limited to, streets [and] highways”);
King v. State, 732 S.W.2d 796, 803 (Tex. App. 1987, writ ref’d)
(holding that the Texas legislature has declared that streets and
highways, among other locations, are “public places” per se).
While a defendant might argue that a street in a restricted area
of a military base is not a public place, Collazo cannot
seriously make that contention here. He was convicted of driving
while intoxicated on a portion of a street on Kelly AFB which led
up to a checkpoint permitting entry to the main part of the base.
The photographic evidence indicates that any member of the public
can drive up to Gate One without passing through a guarded gate.
One photo, for instance, reveals a public bus in a line of
traffic waiting to enter the base. Another photo shows that Gate
One is adorned with a large “Welcome Kelly AFB” sign. Indeed,
Collazo’s very presence at Gate One suggests that the section of
General Hudnell Drive he was on was a “public place.” Collazo is
a civilian who would not be allowed to enter a restricted area of
a military base without special permission.
While the government did not specifically point out to the
5 district court that Collazo was driving in a public place, there
is ample evidence in the record indicating that Collazo was
driving on a portion of a street open to the public and, thus, in
a “public place” for purposes of § 49.04. See Tracey v. State,
350 S.W.2d 563, 563 (Tex. Crim. App. 1961) (holding that road
inside air force base was public place since at the time of the
defendant’s drunk driving, the road was open and traveled by the
public); Woodruff v. State, 899 S.W.2d 443, 445 (Tex. App. 1995,
writ ref’d) (ruling that “if the public has any access to the
place in question, it is a public place”), cert. denied, __ U.S.
__, 116 S. Ct. 945, 133 L. Ed. 2d 870 (1996); United States v.
Graef, 31 F.3d 362, 364 (6th Cir. 1994) (ruling that defendant
was driving in an area “open to the public” where he drove in an
unrestricted part of federal enclave before crashing through
security fence and ending up in restricted portion); see also
Nichols v. State, 49 S.W.2d 783, 784 (Tex. Crim. App. 1932)
(stating that “it would be intolerable to think that when
investigating the criminal liability of the drunken driver of an
automobile on a roadway, more or greater proof would be required
to establish the character of the road, than that it was or is
open for the use, or used by the public for traffic”); cf. United
States v. Hughes, 542 F.2d 246, 248 n.1 (5th Cir. 1976) (stating
that offense occurred on federal enclave and thus the court had
jurisdiction because “[t]he record is replete with evidence of
6 exactly where on Fort Rucker the offense occurred and the
district court could have taken judicial notice of the fact that
certain named streets and intersections are located on the
federal enclave”). Indeed, Collazo can muster no proof that he
was not in a public place. Thus, we find that the weight of the
evidence, viewed in a light most favorable to the government, is
sufficient to support the verdict.
Accordingly, we AFFIRM the judgment of the district court.