Sanchez-Tapia, Hermilo ( 2015 )

PD-0554-15
PD-0554-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/12/2015 3:51:57 PM
Accepted 5/12/2015 4:36:39 PM
ABEL ACOSTA
No. 07-14-00203-CR CLERK
TO THE
COURT OF CRIMINAL APPEALS OF TEXAS
HERMILO SANCHEZ-TAPIA
Petitioner
V.
THE STATE OF TEXAS,
Respondent
PETITIONER'S REQUEST FOR DISCRETIONARY REVIEW
No. 07-14-00203-CR
IN THE COURT OF APPEALS FOR THE
SEVENTH JUDICIAL DISTRICT OF TEXAS,
AT AMARILLO, TEXAS
Joel Cook
State Bar No. 24044289
Law Offices of Wm. Everett Seymore
810 Main St.
Lubbock, TX 79401 May 12, 2015
Telephone: (806)747-3825
Fax: (806)747-3851
joel_cook@outlook.com
Counselfor Petitioner
Identity of parties and counsel
Counsel For The State:
At Trial—^Tom Brummett and Cara Brewer, Assistant District Attorneys,
904 Broadway, Lubbock, Texas 79401.
On Appeal—^Jeff Ford, Assistant Criminal District Attorney, P.O. Box
10536, Lubbock, Texas 79408.
Counsel For Appellant:
1. At Trial—Trial counsel for the defendant were Joel de la Garza and Robin
Matthews, 1703 Ave. K, Lubbock, TX 79401, (806) 763-0409.
On Appeal—^Joel Cook, 810 Main Street, Lubbock, Texas 79401.
TRIAL COURT JUDGE:
AT TRIAL- Honorable Judge Mark Hocker, County Court at Law Number
One, 904 Broadway, Lubbock, Texas 79401.
Table of Contents
IDENTITY OF THE PARTIES ii
INDEX OF AUTHORITIES iv
STATEMENT REGAPO^ING ORAL ARGUMENT 1
STATEMENT OF THE CASE 1
STATEMENT OF PROCEDURAL HISTORY 3
GROUNDS FOR REVIEW 3
1) The Court of Appeals erred in holding that the issue of whether a DWI
arrest occurred in a public place can never require a 38.23(a) instruction
because it is an essential element of the State's case in chief and does not
require an affirmative defensive instruction even when raised by the
evidence.
2) Blue is too narrow of a standard of review when determining if trial court
comments were fundamental error and the Court of Appeals erred by not
adopting a standard of review contemplating the synergistic effect of the
comments and the improper jury charge.
ARGUMENT IN SUPPORT OF GROUNDS FOR REVIEW 4
PRAYER FOR RELIEF 15
CERTIFICATE OF SERVICE 16
CERTIFICATE OF COMPLIANCE 17
APPENDIX (Opinion of the Court of Appeals)
iii
Index of Authorities
Cases Page(s)
Beggs V. State,
597 S.W.2d 375 (Tex.Cr.App.l980) 9
Blue V. State,
41 S.W.2d 129 (Tex. Crim. App. 2000) (en banc) (plurality op.) 13
Giesberg v. State,
984 S.W.2d 245 (Tex.Crim.App.1998) 11
Granger v. State,
2000 WL 798072 (Tex.App.-Dallas June 22, 2000) (opinion on remand) (not
designated for publication) 11
Hill, V. State,
765 S.W.2d 794 (Tex.Crim.App.1989) 8,9
Jackson v. State,
646 S.W.2d 225 (Tex.Cr.App.l983) 9
Lynch v. State,
643 S.W.2d 737 (Tex.Cr.App.l983) 9
Madden v. State,
242 S.W.3d 504 (Tex.Crim.App.2007) 12
Robinson v. State,
377 S.W.3d 712 (Tex.Crim.App.2012) 6
IV
SancheZ'Tapia v. State^
No. 07-14-00203-CR, 2015 WL 1119762 (Tex. App.- Amarillo 2015)
(mem. op., not designated for publication) 3,7,13
United States v. Fernandez,
496 F.2d 1294 (5th Cir.1974) 14,15
Walters v. State,
247 S.W.3d 204, 214 (Tex.Crim.App.2007) 11
No. 07-14-00203-CR
TO THE
COURT OF CRIMINAL APPEALS OF TEXAS
HERMILO SANCHEZ-TAPIA
Petitioner
V.
THE STATE OF TEXAS,
Respondent
PETITIONER'S REQUEST FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Petitioner, by and through his attorney of record, respectfully urges this
Court to grant discretionary review of the above named cause.
STATEMENT REGARDING ORAL ARGUMENT
Because this case presents novel issues this Court has not previously
addressed, oral arguments would be helpful.
STATEMENT OF THE CASE
Petitioner was convicted of Driving While Intoxicated. The detention and
arrest took place in the parking lot of the RV park where Petitioner resided. At
trial, he contended that the State could not prove the essential element of "public
place" because the area of his detention and arrest did not occur in an area open to
a substantial portion of the public. Testimony from the respective witnesses
revealed a conflict in historical fact regarding the presence and visibility of fences
and no trespassing signs around the property in question. The witnesses for the
State and Defense disagreed generally as to whether the property was open to a
substantial portion of the public, and specifically as to whether the area was
fenced-in or if there were no trespassing signs posted on the property. This fact
dispute came to a point when the defense questioned the State's witness regarding
the application of the criminal trespass statute to the area of the arrest. The
questioning was intended to elicit from the State's witnesses how fences and no-
trespassing sings give notice of the "private nature" of property, and how that
relates to the ultimate question of whether an area is open to a substantial portion
of the public. The State objected to relevance, and in sustaining the objection, the
trial court made a comment that could be interpreted by a reasonable juror as the
trial court's adoption of the State's argument that the disputed area was open to a
substantial portion of the public. No objection was made to the trial court's
comments.
Because the physical character of the area in terms of its public or private
nature was a disputed historical fact, and that the resolution of that fact was
material to the admissibility of any evidence of the DWI, the Petitioner argued he
was entitled to a 38.23(a) instruction. The first issue of this petition challenges the
trial court's denial of the requested charge. The denial of the instruction coupled
with the trial court's comment on the weight of the evidence regarding the public
or private nature of the property form the basis of the second issue. Petitioner
believes that combination of the judge's comments and the lack of proper
instruction equates to fundamental error and should be reviewable even though no
objection was lodged at trial.
STATEMENT OF PROCEDURAL HISTORY
On March 10, 2015 the Court of Appeals affirmed the trial court.'
Appellant's motion for reconsideration en banc was denied on April 8, 2015. The
petitioner's PDR is due on May 8, 2015.
GROUNDS FOR REVIEW
1) The Court of Appeals erred in holding that the issue of whether a DWI
arrest occurred in a public place does not require a 38.23(a) instruction
because it is an essential element of the State's case in chief and does not
require an affirmative defensive instruction.
2) Blue is too narrow of a standard of review when determining if trial court
comments were fundamental error and the Court of Appeals erred by not
^Sanchez-Tapia v. State, No. 07-14-00203-CR, 2015 WL 1119762, at *1 (Tex. App.- Amarillo
2015) (mem. op., not designated for publication).
3
adopting a standard of review contemplating the synergistic effect of the
comments and the improper jury charge.
ARGUMENT
Ground one: The Court ofAvveals decision resurrects the ''State's case rule"
The site of Petitioner's arrest was the key issue of the trial. The area where
the detention and eventual arrest took place was on, or part of a mobile home
park,^ Witnesses for the State testified that the area was a "public place" and that
during their investigation they did not notice any fences or no-trespassing signs
that would have indicated to them that the area was anything but "public."^ The
investigator for the defense testified to the presence of fences and a no-trespassing
sign surrounding the park."^ Additionally, after going to the park to take pictures,
he offered his subjective belief that the mobile home park was not open to a
substantial portion of the public.^ The relevant part of the conflicting testimony is
included below:
STATE: And where was that accident? OFFICER GOSWICK: 7516 1-27.
STATE: Is that in Lubbock, Texas?
OFFICER GOSWICK: Yes.
STATE: And is that a public place?
OFFICER GOSWICK: Yes.
2RR.III.41.
^RR.III.26, 30-31.
^RR.IV.120.
^RR.IV.123.
STATE: Okay. Are there any fences or gates or anything that would restrict the
public from being able to go into this area?
OFFICER GOSWICK: No.^
STATE: And, Officer Goswick, just for the record, is this mobile home park and
the business, are they a public place?
OFFICER GOSWICK: Yes, ma'am.'
DEFENSE: When did you return back out to the park?
KUHLANDER: This morning.
DEFENSE: Did you gain permission to enter by the owner before you traveled
back out there?
KUHLANDER: Not this morning, no.^
DEFENSE: Okay. Now, regarding Defense's Exhibit 13 and 14, can you hold up
Defense Exhibit 13 to the jury?
KUHLANDER: Okay.
DEFENSE: Describe the contents of that image?
KUHLANDER: It is a "No Trespassing" sign on a fence there at Applegate.
DEFENSE: Applegate Mobile Home Park?
KUHLANDER: Yes.'
Summarizing the above testimony. Officer Goswick testified that there were no
fences, gates or "anything that would restrict the public from being able to go into
this area." The defense investigator, testifying to the contrary, stated there were
fences and a no trespassing sign at the scene. The State argues that the dispute
regarding the presence of fences or no-trespassing signs is not really a dispute. In
its brief, the State took the position that "[djespite much argument at trial over the
^ RR.II.26-28.
^ RR.IIL30.
^RR.IV.130.
^RR.IV.120.
issue of a public place, there was no actual disagreement over the historical facts of
the location."
We believe that this testimony presents a clear disagreement. It is our
position that this testimony raises a factual dispute as to the physical nature of the
property as previously contemplated by this Court in Robinson, and that such a
dispute requires a 38.23(a) instruction.
This Court has previously held that the physical nature and characteristics of
an arrest or detention site can form the substance of a disputed fact issue. In
Robinson^ the potential factual dispute concerned how two roads merged together.
And while the Court ultimately found that no fact issue was raised, it did note that
nature of the physical characteristics of the road could have been a fact issue had
the evidence been slightly different. In Robinson, the State Prosecuting Authority
("SPA") conceded in its brief to this Court that the "material facts" of the case
were the configuration of the meeting of the roads, but that no evidence was put
10
forth putting the physical appearance of the roadway in dispute. This Court
agreed and held that: "There was certainly disagreement among the parties as to
whether a driver is legally required to signal at this confluence of the
State's Br. at 10.
" Robinson v. State, 377 S.W.Sd 712, 722 (Tex.Crim.App.2012).
/i/. at 718.
roadways..."" However, that the "...parties did not offer conflicting testimony
before the jury with regard to the physical character of the roadway, viz: that Ninth
Street 'continues' onto Margaret Drive."
The facts of this case raise the type of situation contemplated in Robinson—
a factual dispute as to the physical character of an arrest site. Much like the
physical character of the merging roads in Robinson, the presence or absence of
fences and no-trespassing signs in relation to the public or private nature of the
property is a fact issue. However, the Court of Appeals adopted the State's
position that an affirmative 38.23(a) instruction is redundant since it is already
included in the jury charge as an element of the State's case.
"The State contends that the factual dispute about where the DWI
occurred, and the arrest resulted, goes to the 'public place' element of
the offense. Therefore, the State posits that the issue of a 'public
place' was an issue for the jury in determining whether the State met
its burden of proof in its case-in-chief, not in determining the
reasonable suspicion for the initial stop. We agree with the State."
This holding conflicts with this Court's prior rulings in regards to statutory
defensive instructions that are duplicative of an element of the State's case in chief
Id. at 720.
Sanchez-Tapia, 2015 WL 111976, at *7-8.
7
This Court has previously held that statutory defensive instructions, if raised
by the evidence, are required to be submitted to the jury. This is so regardless of
whether they are an essential element of the case, or only seek to negate an
essential element of the offense. Hill v. State explored whether an affirmative
defensive instruction was warranted for a mistake of fact defense that the State
argued only sought to negate an essential element of the State's case.'^ In Hill, the
defendant was charged with commercially dispensing a controlled substance
without a valid medical purpose.'^ The doctor had prescribed Ritalin to an
undercover agent posing as a patient. The defendant took the stand during the
guilt/innocence phase of trial and testified that according to the symptoms reported
by the undercover agent, and the tests he ran on her, he believed he was prescribing
the drug for a valid medical purpose.'^ He requested the mistake of fact defense,
which was denied by the trial court.The State had argued on appeal, and the
intermediate reviewing court agreed, that the instruction was unnecessary because
it was merely an affirmative submission of a defensive issue, which denied the
existence of an essential element of the State's case. This Court granted review
and uhimately disagreed with the State's position.
765 S.W.2d 794, 795 (Tex.Crim.App.1989).
" Hill, 765 S.W.2d at 795.
"/rf.
Id. 3X196.
The Hill court found the defendant was entitled to an affirmative submission
of the mistake of fact defense even though it only sought to negate an essential
element of the case, and—equally important for purposes of this case—even
though the court's charge had adequately addressed the defendant's mental state in
the jury charge:
"It is true that the court's charge to the jury included the phrase
'when said James Lee Hill did not then and there believe that
Marisela Lopez was suffering from said medical condition...,'
but nowhere within the charge is there an affirmative
submission of the defense of mistake of fact."^'
This was not the first time this Court has rejected the "State's case rule" in relation
to affirmative defense issues.
In Hill, the CCA cited to several cases in support of their position that
statutory, affirmative defense instructions are mandatory—regardless of whether
they only negate an essential element of the State's case. Hill, and the cases cited
in support, dealt specifically with the statutory defense of mistake of fact, which is
listed in chapter eight of the penal code, but it is only a slight extension of the
CCA's reasoning, and certainly seems that they would have intended, for the
holding to cover any statutory defensive issues contained in either the Penal Code
Id. at 797.
See Beggs v. State, 597 S.W.2d 375 (Tex.Cr.App.l980); Lynch v. State, 643 S.W.2d 737
(Tex.Cr.App.l983);yac^o« v. State, 646 S.W.2d 225 (Tex.Cr.App.l983).
9
or the Code of Criminal Procedure. The fact that their decision in Hill would not
extend to chapter nine (justification) defenses or the multiple defensive issues
found in the Code of Criminal Procedure (insanity, statute of limitations, lesser
included offenses and prior convictions, among others) is counter-intuitive. This is
especially so when considering that the State's argument would foreclose a
defendant from an affirmative instruction on an insanity defense simply because
the defendant's mental intent was also an essential element of the State's case. Hill
stands for the position that any statutory defensive issue, raised by the evidence, is
entitled to an affirmative defensive instruction regardless of whether it is an
essential element of the State's case in chief.
The lack of proper instruction is harmful even if the jury implicitly ruled
against the defendant by finding him guilty. In HilU the court found harm even
though the jury found that the defendant had the requisite mental state. Likewise,
in Granger v. State, the opinion noted the State's "...plausible argument that
appellant was not harmed by the trial court's error because the mistake of fact
defense was subsumed within the mental state element of the primary offense
alleged in the jury charge" but found the error harmful nonetheless."
Furthermore, the court noted "...an appellant still suffers some harm by the trial
court's failure to apply the law of mistake of fact to the facts of the appellant's
Granger v. State, 2000 WL 798072 *at 1 (Tex.App.-Dallas June 22, 2000) (opinion on
remand) (not designated for publication).
10
case."^"^ The court also attached special significance to the fact that the requested
instruction was the defendant's only defense in the case:
"Here, mistake of fact with respect to whether there was a person
in the car was appellant's primary defense; he was entitled to have
the jury rule upon that defense and was harmed in not having the
requested instruction submitted to the jury to guide it in its
determination of guilt.""
Here, the "public place" issue was defendant's only hope of acquittal. The
issue was raised in front of the jury, was a statutory defensive issue, and the
requested jury instruction could have resulted in an acquittal z/the jury believed the
evidence supported it. Accordingly, the instructions should have been given, and
the fact that the requested instruction was also an element of the State's case in
chief does not eliminate the trial court's duty to properly instruct the jury on the
subject of statutory defensive issues as mandated by Hill. This comports with this
Court's contrasting views on statutory and non-statutory defensive issues—^with
the latter not receiving any protection on appellate review.
"Mat2.
See Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App.1998) (alibi defense not entitled to
affirmative instruction as it is not a statutorily enumerated defense); Walters v. State, 247 S.W.3d
204, 214 (Tex.Crim.App.2007) ("Normally, if the instruction is not derived from the code, it is
not "applicable law.").
11
Here, there was a disputed issue of material fact that was raised in front of
the jury, and there was a scintilla of evidence offered in support of the requested
charge. Once the requirements of Madden were met, a 38.23(a) instruction is
necessary." The Court of Appeals decision that an affirmative instruction was
redundant because the public place issue was addressed by the charge as an
element of the State's case in chief conflicts with this Court's prior holdings. The
holding in Hill only relates to the mistake of fact defense, but this case presents an
opportunity for this Court to determine if the holding in Hill extends to 38.23(a)
instructions and if the facts of this case are of the type contemplated in Robinson.
We ask this Court to grant review to resolve these questions.
Ground two: The Court ofAppeals erred by not considerins the svnersistic effect
ofthe iudse's comments with the lack ofproper 38,23(a) instruction.
During trial the defense was questioning a witness regarding the relation
between the Texas criminal trespass statute and the fences and no-trespassing sign
at the RV park. The State objected and in sustaining the objection, the Court made
a comment on the evidence:
See Madden v. State, 242 S.W.3d 504, 510 (Tex. Grim. App. 2007) (Three factors in
determining if a 38,23(a) instruction is needed: (1) the evidence heard by the jury must raise an
issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) the contested
factual issue must be material to the lawfulness of the challenged conduct in obtaining the
evidence).
12
DEFENSE: Your Honor, the public versus private place issue is definitely a very
relevant issue. In this case it was brought up by the State as well. And criminal
trespass has overlapping elements of that offense.
THE COURT: The issue is not public or private property. It is a public place. And
the jury will be instructed in the Court's Charge that a public place means any place
to which the public or substantial group of public has access. That is different from
the criminal trespass statute. So until you lay an affirmative defense predicate, I'm
going to sustain the objection.
DEFENSE: I'll pass the witness, Judge."
The Court of Appeals found the judge's comments in front of the jury were
not fundamental error and did not rise to the level of Blue." Blue should not be
the bar for determining if improper comments by the judge rise to the level of
fundamental error when there is also an improper jury charge issue related to the
comments. The true impact of the comments is only shown in relation with the lack
of proper jury instruction that directly relates to the improper comments.
Specifically, because the instruction and improper comments are related and
combine to create a "collective error," the Court should look at the cumulative
effect of the issues in relation to the overall soundness of the verdict. Simply put,
the judge's comment that the area "is a public place" in combination with the
charge error discussed above combines in such a way as to create fundamental
error.
RR.IV.64-65 (emphasis added).
Sanchez-Tapia, 2015 WL 1119762 at *12; See Blue v. State, 41 S.W.2d 129,131-32 (Tex.
Crim. App. 2000) (en banc) (plurality op.).
13
The 5" Circuits decision in United States v. Fernandez supports this type of
review." In Fernandez, the court analyzed whether a failure to instruct the jury
on the presumption of innocence was fundamental error." The court initially
noted that they were leaning towards a finding that the omission was harmless
error on its own, but because of comments made by the prosecutor during closing
arguments that related to the missing instruction, they decided the proper scope of
review was to consider the combined affect of the comments and the missing
'XO
instruction. The court noted:
"[w]ith the presumption of innocence charge not requested and
its omission not objected to, we would be sorely tempted here
to hold that plain error under Rule 52(b), F.R.Crim.P. is not
made out, but for one aspect of the trial below which we find so
critical as to mandate reversal for new trial.""
That aspect of the trial they were referring to were the prosecutor's
statements during trial which directly touched on the defendant's presumption of
innocence. The closing argument basically used the defendant's prior convictions
496 F.2d 1294 (5th Cir.1974) (prosecutor's argument that sought to impose a "presumption of
guilt," together with failure of charge to instruct on the presumption of innocence, was plain
error).
Fernandez, 496 F.2d at 1296.
32
Mat 1299.
''Id.
14
to prove that he committed the instant offense.^"^ The court pointed out that the
individual errors of not having the presumption of innocence instruction and the
prosecutors closing arguments, by themselves, were not reversible error; however,
the synergistic effect of the two did create issues with the overall reliability of the
guilty verdict:
"But our doubts are resolved when we consider the prejudicial
effect of the failure to charge on the presumption of innocence
in combination with the prejudicial prosecutorial argument
indulged in any [sic] largely uncorrected below. The synergistic
effect of the combination is fatal to the vitality of this
conviction under the circumstances of this case.""
Here, there were improper statements and a lack of proper instruction, a
situation directly analogous to the Fernandez facts. The judge's comment that the
area "was a public place" coupled with the lack of the 38.23(a) instruction involve
around the same issue and so the error from each should be looked at collectively.
We ask the Court to grant review to determine if the reasoning in Fernandez
should be adopted by this Court.
Prayer
at 1299-1302.
35Matl303.
15
WHEREFORE, We ask this Court to grant this Petition for Discretionary
Review, set the case for submission, and after submission find that charge error
occurred, or that the trial court's comments were fundamental error that vitiated the
Appellant's presumption of innocence. In either case, that the guilty verdict be
reversed, and the case remanded to the trial court for a new trial.
Respectfully submitted,
LAW OFFICES OF
WM. EVERETT SEYMORE, P.C.
Joel Cook
State Bar No. 24044289
joel_cook@outlook.com
810 Main Street
Lubbock, Texas 79401
Telephone: (806) 747-3825
Facsimile: (806) 747-3851
/s/ Joel Cook
JOEL COOK
Attorney for Appellant
Certificate of Service
I certify that on May 8, 2015, a true, correct, and complete copy of this
Appellant's Brief was delivered via e-mail to counsel for the State.
16
/s/ Joel Cook
JOEL COOK
Certificate of Compliance
This is to certify that this document is in compliance with the word limit set
in Rule 9.4.(i)(2)(B) as determined by Rule 9.4.(i)(2) and is hereby acknowledged
in this Certificate in accordance with the Texas Rules of Appellate Procedure
9.4.(i)(3). This document contains 2,904 words.
/s/ Joel Cook
JOEL COOK
17
APPENDIX
Coatt of
^ebeittl^ 29ts(trtct of tSCexasi at limariQo
No. 07-14-00203-CR
HERMILO SANCHE2>TAPIA, APPELLANT
V.
THE STATE OFTEXAS, APPELLEE
On Appeal from the Comity Court at Law No. 1
Lubbock County, Texas
Trial Court No. 2013-47"94, Honorable Mark Hocker, Presiding
March 10» 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE,Dr.
Appellant, Hermilo Sanchez-Tapia, was convicted of driving while intoxicated^
(DWI) and sentenced to 270 days confinement in the Lubbock County Jail. Appellant
has perfected his appeal and, through two issues, contends that the judgment of the
trial court should be reversed. Appellant's first contention is that the trial court erred in
overruling appellants issue for an article 38.23 jury instruction regarding the public or
^SeeTex. Penal Code Ann. § 49.04(a) (West Supp. 2014).
private nature ofthe location ofthe arrest.^ Appellant's second issue contends that the
trial court commented on the evidence during a discussion in front of the jury. We
disagree and will affirm.
Factual and Procedural Background
Appellant Is not contesting the sufficiency of the evidence to support the jury's
verdict. Therefore, we limit our discussion of the evidence to the issues presented on
appeal.
Appellant was arrested on August 7, 2013, for DWI. The events leading up to his
arrest centered on a reported accident in the parking adjacent to a business owned by
Manuel Fernandez. Fernandez owns and operates a business, Manuel's Appliances, at
7516 Interstate 27 in Lubbock, Texas. Fernandez's business is adjacent to Applegate
RV Park.^ After receiving notice that his truck had been struck by another truck,
Fernandez reported the accident by a 911 call to the Lubbock Police Department.
Officer Rayland Goswick responded to the call. Based upon his observations of
the scene of the accident and the fact that Fernandez had appellant stay at the scene,
Goswick was able to identify appellant as the driver of the truck that struck Fernandez's
truck. Goswick proceeded to investigate appellant's actions only to learn that appellant
did not speak English. Goswick then requested a Spanish-speaking officer be detailed
to assist.
^SeeTex. Code Crim. Proc.Ann. art. 38.23 (West 2005).
^Later In thetrial, thesite was referred toas theApplegate Mobile Home Pari(. From the record,
they appear to be the same site.
Officer Micliael Sandovai tlien responded to tlie caii for assistance and tool< over
the primary responsibility of the ensuing investigation. Sandovai observed signs of
intoxication while interviewing appellant. As a result, Sandovai requested appellant take
standardized field sobriety tests. After concluding these tests, Sandovai determined
appellant was intoxicated and requested that appellant take a blood test. In so doing,
Sandovai attempted to read the DIC-24 statutory warning to appellant in Spanish.
Sandovai was unable to conclude the reading of the DIC-24 in Spanish and called for
assistance. Sandovai transported appellant to University Medical Center (UMC)
emergency room to obtain a sample of his blood.
Sergeant Juan Muniz, Sandoval's supervisor, met Sandovai and appellant at
UMC and proceeded to read the DIC-24 to appellant in Spanish. Appellant
subsequently consented to the taking of a specimen of his blood to test for the presence
of alcohol. The blood was drawn and the sample was submitted to the DPS laboratory
for testing. Appellant does not contest the validity of the blood draw or the results of the
testing. The testing ultimately showed appellant's blood alcohol level to be .207.
During the testimony of the investigating officers, the State consistently elicited
testimony that the place of the accident was a public place. Appellant's position
seemed to be that the location of the accident, and, thus, where he was operating a
motor vehicle, was on private property. This dispute over the facts came to a point
during the testimony of Muniz. After the State concluded its direct examination of
Muniz, appellant attempted to cross-examine Muniz with the aid of the Texas Penal
Code section on criminal trespass. The State objected to this procedure on the grounds
of relevance. Appellant submitted that the relevance was because "they have brought
up the issue of whether or not the trailer pari< is a private place. And In order to show
that it is a public- - or private place, the crime of criminal trespass Is highly relevant."
The trial court sustained the relevance objection and, in so doing, made the
following statement:
The Issue is not public or private property. It Is a public place. And the
jury will be instructed in the Court's Charge that a public place means any
place to which the public or substantial group of public has access. That
is different from the criminal trespass statute. So until you lay an
affirmative defense predicate, I'm going to sustain the objection.
The above quoted statement by the trial court is the basis of appellant's second
contention, that such was a comment on the evidence.
After the State had rested its case-in-chief, appellant called Todd Kurlander as a
witness. Kurlander Is a private investigator who was assigned to assist appellant's trial
counsel In the defense of the charge pending against appellant. Pursuant to his
assignment, Kurlander took a series of photographs at the scene of the arrest. One of
the photographs contains an image that contained a "No Trespassing" sign. According
to the testimony, this sign was on a fence at the Applegate Mobile Home Park. Further,
Kurlander testified that, before he started taking photos of the scene, he felt it necessary
to obtain permission from the owner.
After both sides had rested and closed the presentation of evidence, the trial
court conducted a hearing on the proposed Court's Charge. At that hearing, appellant
requested an article 38.23 jury instruction. The thrust of the requested charge was to
allow the jury to determine whether appellant had been driving or operating a motor
vehicle In a public place. The trial court denied the requested jury instruction. This is
the basis of appellant's first contention.
The jury convicted appellant of DWi and this appeal followed. Through two
issues, appellant contends that the trial court erred In denying the requested jury
instruction and comnfiented on the evidence. Disagreeing with appellant's contentions,
we will affirm.
Jury Instruction
Prior to addressing the requested jury instruction issue, it will be helpful for us to
set forth the elements of a charge of DWI. Section 49.04(a) of the Texas Penal Code
sets forth the elements necessary to convict appellant of DWI. They are as follows:
(1) appellant
(2) was intoxicated
(3) while operating a motor vehicle
(4) in a public place.
See Tex. Penal CodeAnn. § 49.04(a).''
Appellant's first issue contends that the trial court committed reversible error
when it refused to submit a jury instruction pursuant to article 38.23 of the Texas Code
of Criminal Procedure.® The issue before the Court involves appellant's trial strategy
*Further reference to the Texas Penal Code will be by reference to "section or"§
^Further reference tothe Texas Code of Criminal Procedure will beby reference to"article
or "art.
that the arrest occurred on private property. In connection with that proposition, trial
counsel requested that the following jury instruction be given to the jury:
You are instructed that no evidence obtained by an officer or other person
in violation of any provision of the Constitution of laws in the State of
Texas, or of the Constitutional laws of the United States of America, shall
be admitted into evidence against the accused on trial of a criminal case.
An officer is committed to make a temporary investigation, investigative
detention of a motorist, if the offlcer has specific articulable facts, which
taken together with rational inferences from those facts leading to
conclude that a person detained actually is, at the time of detention,
driving and operating a motor vehicle in a public place, while not having
the use of his mental or physical faculties by reason of the introduction of
alcohol into his system.
Now, bearing in mind, if you find from the evidence that on the occasion in
question, the accused, [appellant], was not driving or operating a motor
vehicle In a public place, or if you have a reasonable doubt thereof, you
will disregard the testimony of the officers concerning the detention of the
accused, the questioning of the accused, and any evidence obtained from
the accused including evidence relating to blood, and any conclusion
drawn as a result thereof. And you will not consider such evidence for any
purpose whatsoever.
Standard of review
A claim of error in the court's charge involves a two-step process. See Abnor v.
State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994) (en banc). First, we must determine
whether error occurred, and then, if en-or occurred, whether sufficient harm resulted
from the alleged error to require reversal. Id. at 731-32. Accordingly, our initial inquiry
is to determine if the trial court erred in denying the requested article 38.23(a)
instruction.
Analvsis
We begin by reviewing article 38.23(a). Article 38.23(a) provides the following:
No evidence obtained by an officer or other person in violation of any
provision of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal case.
The requirements to entitle appellant to an article 38.23(a) jury instruction are set
forth in Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). The Court
initially pointed out that "a defendant's right to the submission of jury instructions under
Article 38.23(a) is limited to disputed issues of fact that are material to his claim of a
constitutional or statutory violation that would render evidence inadmissible." Id. at 509-
10. The Court then set forth the three requirements appellant must meet to be entitled
to such an issue as follows: (1) the evidence heard by the jury must raise an issue of
fact; (2) the evidence on that fact must be affirmatively contested; and (3) the contested
factual issue must be material to the lawfulness of the challenged conduct in obtaining
the evidence. Id. It is the third element that bears scrutiny in the case before the Court.
Appellant's entire argument is centered around the factual issue of whether the
DWI occurred on private property. Appellant asserts that the DWI stop occurred in an
area that had posted "No Trespassing" signs. This, according to appellant, then raised
a factual Issue that required the requested article 38.23(a) Instruction.
The State contends that the factual dispute about where the DWI occurred, and
the arrest resulted, goes to the "public place" element of the offense. Therefore, the
State posits that the issue of a "public place" was an issue for the jury in determining
whether the State met Its burden of proof in its case-in-chief, not in determining the
reasonable suspicion for the initial stop.
We agree with the State. That article 38.23(a) is an exclusionary rule design to
protect a person charged with a criminal offense from illegally obtained evidence is
beyond dispute. See art. 38.23(a); Madden, 242 S.W.3d at 509-10. What goes unsaid
in appellant's brief is how the fact question at issue would result in the evidence being
Inadmissible. Appellant makes an argument that the conduct of the police violated the
criminal trespass statute. However, appellant has provided the Court with no citations
to cases holding that such a factual allegation, in this context, would result in the
evidence being held to be illegally obtained. Further, it is of note that appellant did not
file any pre-trial motions that contested the reasonable suspicion to detain appellant on
the basis of the now alleged criminal trespass issue.
As the factual issue was raised before the jury, the contested fact was whether
the event in question occurred in a "public place." This issue was thoroughly covered
by the Court's Charge to the jury. Therein, the trial court defined a "public place"
pursuant to the definition found in section 1.07(a)(40) of the Texas Penal Code.
§ 1.07(a)(40) (West Supp. 2014). Further, the charge properly defined the offense of
DWI pursuant to the Texas Penal Code. § 49,04(a). In its application paragraph, the
trial court instructed the jury as follows:
Now, after considering all the evidence before you and these instructions,
if you find from the evidence beyond a reasonable doubt that, on or about
the 7^"^ day of August, 2013, in Lubbock County, Texas the [appellant],
HERMILO SANCHEZ-TAPIA, while intoxicated, operated a motor vehicle
in a public place, as charged in the Infomnation, then you will find the
[appellant] "Guilty." Unless you so find beyond a reasonable doubt, or if
you have a reasonable doubt thereof, then you will find the [appellant]
"NOT GUILTY."
This charge gave full effect to appellant's contested factual issue, whether the offense
took place in a public or private place. As such, it meets the requirements for a Court's
Charge as set forth in the Code of Criminal Procedure. Art. 36.14. Additionally, this
charge sets forth the law applicable to the case. See Walters v. State, 247 S.W.3d 204,
208 (Tex. Crim. App. 2007).
Finally, the State cites the Court to Ackley v. State for the proposition that a
similar contention has been considered and rejected by one of our sister courts of
appeals. See Ackley v. State, No. 01-09-00476-CR, 2011 Tex. App. LEXIS 9294, at
*13-14 (Tex. App.—Houston [1®* Dist.] Nov. 23, 2011, no pet.) (mem. op., not
designated for publication). While the facts in Ackley are different in many respects
from the case before the Court, we find its arguments persuasive on the issue of
whether the private or public nature of the location of the arrest requires a 38.23(a) jury
instruction. The location at issue in Ackley was a public campground that required a fee
for use; the ultimate issue was whether the campground was a "public place." See Id. at
*13. The court In Ackley found that the alleged factual dispute, whether the
campground was a "public place" was not material to the question of reasonable
suspicion to stop the appellant. See Id. *13-14. We, likewise, find that the question of
public versus private place, as litigated in this case, is not material to the question of
reasonable suspicion to stop appellant. For the foregoing reasons, we overrule
appellant's first issue.
Comment on the Evidence
Appellant's second issue contends that the trial court Impermissibly commented
on the evidence In front of the jury during a discussion of the State's relevance objection
to questions of Sergeant Muniz regarding tlie criminal trespass statute. We have
previously set forth the trial court's comment and refer the parties to that section of the
opinion. At the outset, we note that appellant did not object to the statement by the trial
court at the time It was made. Our law requires that In most Instances an objection or
motion notifying the trial court of any objection is required to preserve an issue of
appellate review. See Tex. R. App. P. 33.1(a)(1): Marin v. State, 851 S.W.2d 275, 278
(Tex. Crim. App. 1993) (en banc). There is a type of error that is an exception to the
presen/ation rule: where a trial court makes comments in front of the jury that are so
egregious that it amounts to fundamental en^or. See Tex. R. Evid. 103(d);® Unkart v.
State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013).
However, before we begin any type of analysis to determine whether an alleged
comment by the trial court that was not objected to was fundamental error, and, thusly,
did not have to be preserved for appellate review, we must decide whether the
statement made by the trial court was in fact a comment on the evidence.
Trial judges must refrain from making any remark or comment calculated to
convey to the jury his opinion of the case. See Brown v. State, 122 S.W.3d 794, 798
(Tex. Crim. App. 2003). Further, article 38.05 of the Texas Code of Criminal Procedure
provides;
In ruling on the admissibillty of evidence, the judge shall not discuss or
comment upon the weight of the same or its bearing in the case, but shall
simply decide whether or not it Is admissible; nor shall he, at any stage of
the proceeding previous to the return of the verdict, make any remark
calculated to convey to the jury his opinion of the case.
^Texas Rule ofEvidence 103(d) provides that "[iln a trial ofa criminal case, nothing In these rules
precludes taking notice of fundanfiental errors affecting substantial rights although they were not brought
to the attention of the court.*
10
Art. 38,05 (West 1979). Any remark or comment made by the trial judge is apt to be
seen by the jury as shedding some light on the views of the court to the proceedings
before him. See Brown, 122 S.W.3d at 798.
The comment in question is presented by appellant as a statement to the jury
about the trial court's determination that the place of arrest was a public place.
Appellant focuses in on this one statement; "It is a public place." When viewed alone,
the statement at issue certainly appears to be a comment on the evidence. However,
we cannot view the sentence by itself because it was part of the trial court's ruling on
the question of the relevance of the criminal trespass statute, in context, the statement
reads as follows: "The issue is not public or private property, it is a public place." When
placed In context, the pronoun "[ijt" refers to the subject of the proceeding sentence,
"[tjhe issue." We read the comment in its proper context as the trial court's clarification
of the relevant statutory element at issue in the case. Therefore, the trial court was not
making a comment on the evidence that was calculated to divulge his opinion about the
case to the jury. See Brown, 122 S.W.Sd at 798.
Even if we were to assume arguendo that the trial court's ruling on the objection
was a comment on the evidence, we would still be unable to grant appellant the relief he
asks for. As stated above, there was no objection to the trial court's ruling. Therefore,
the only way the statement is reversible is if it is fundamental error, such as, comments
that vitiated the appellant's presumption of innocence. See Blue v. State, 41 S.W.Sd
129,131-32 (Tex. Crim. App. 2000) (en banc) (plurality op.). The facts of the Blue case
are much more compelling than the facts of the case before the court. In Blue, the trial
11
court apologized to the jury for the delay by telling them that the defendant was still
trying to decide whether to take a plea bargain. See Id at 130. Further, the trial court
told the jury his personal preference was the defendant plead guilty. See id. Lastly, the
trial court informed the jury, "[VV]e were all trying to work toward that and save you time
and cost of time." See id. Ultimately, a plurality of the Court of Criminal Appeals held
that the actions of the trial court amounted to fundamental en-or and there need not be
an objection at trial to gain appellate review of the issue. See id. at 134. Yet, the
plurality opinion all agreed on the outcome with almost as many different reasons as
judges who participated in the decision. See Unl 400 S.W.3d at 99. In the final
analysis, the Court of Criminal Appeals has limited Blue to no precedential value and
deemed it only to have persuasive value. See Id. at 100-01.
We decline to apply Blue to the facts before us. The statement by the trial court
was not one that rose to the level of fundamental error, that is, it did not affect the
fundamental substantial rights of appellant. See Tex. R. Evid. 103(d); Jasper v. State,
61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Accordingly, the en-or had to be preserved
for appellate review. See Tex. R. App. P. 33.1(a)(1): Marin, 851 S.W.2d at 278.
Inasmuch as there was no objection at trial, nothing has been preserved for review.
See id. Appellant's second issue is overruled.
Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.
Mackey K. Hancock
Justice
Do not publish.
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