David Wayne Salcedo v. State ( 2012 )

MEMORANDUM OPINION
No. 04-11-00232-CR
No. 04-11-00233-CR
David Wayne SALCEDO,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 2, Bexar County, Texas
Trial Court Nos. 948668, 948669
Honorable Jason Wolff, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: January 11, 2012
AFFIRMED
A jury found appellant guilty of resisting arrest and driving while intoxicated-open
container. The jury assessed punishment at no jail time with a $4,000 fine and 180 days’
confinement with a $2,000 fine, respectively. In a single issue on appeal, appellant asserts his
trial counsel rendered ineffective assistance of counsel. We disagree and affirm.
04-11-00232-CR & 04-11-00233-CR
BACKGROUND 1
At around 5:00 p.m. on a December afternoon, San Antonio Police Department patrol
officer E. Wade received a call for service at a mobile home park regarding an individual driving
recklessly throughout the park. When Wade first arrived at the mobile home park, he contacted
the individual who made the complaint. Based on this conversation, Wade began to look for a
pickup truck. Wade said he saw the truck “coming at me at a high rate of speed, sliding around a
corner.” Wade identified appellant as the driver. Wade activated his overhead lights, and
appellant stopped. Wade said he noted a “very strong” odor of alcohol on appellant’s breath as
soon as he got to the window of the truck. Wade also saw an open twenty-four ounce can of beer
between the two seats. The can was cool to the touch and about half empty. Wade noticed
appellant’s speech was slurred when he asked appellant if he had been drinking, to which
appellant responded, “It doesn’t matter, I’m on private property, you can’t arrest me for DWI.”
Wade said appellant refused to step out of his truck when asked, and because he thought
appellant was attempting to drive away, Wade reached into the truck and grabbed the gear shift.
Appellant reached up with his arm and pinned Wade’s arm against the steering column. Wade
sprayed him with pepper spray. Wade then turned off the truck engine and removed the keys.
Wade said appellant continued to resist even after he was pulled from the truck. Another person
nearby helped get appellant onto the ground so that Wade could handcuff him. Wade said he
placed appellant under arrest for suspicion of driving while intoxicated when appellant first
refused to step out of the truck. Appellant refused to take the field sobriety test, insisting he was
on private property and could not be arrested for driving while intoxicated. Once downtown at
the police station, appellant refused to provide a breath sample.
1
Although the arresting officer’s version of the events leading to appellant’s arrest differs from appellant’s version,
the following is taken from the officer’s testimony because the differences are not relevant to the issue on appeal.
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Wade described the area in which appellant had been driving inside the mobile home
park as very dense with several children running around. Wade testified the mobile home park
was a public place and not private property. But, he said he could not issue appellant a speeding
ticket because he did not know how fast appellant was driving and appellant was on a private
road. The following testimony is from Wade’s cross-examination:
Q. And you never issued him a traffic citation, did you?
A. I couldn’t issue a traffic citation in there.
Q. So based on that, was that the probable cause you used to arrest him?
A. No.
ANALYSIS
On appeal, appellant contends the above statement is an admission by Wade that he
lacked reasonable suspicion to detain appellant. Appellant asserts that although Wade observed
reckless driving at the scene, the scene was private property and neither speeding nor reckless
driving could support an arrest. Appellant concludes that because Wade lacked reasonable
suspicion that a crime had been or would be committed, the necessary predicate for an
investigative detention was missing. Therefore, appellant contends that because Wade did not
notice appellant’s alleged intoxicated condition until after he improperly detained appellant, his
Fourth Amendment rights were violated. Appellant asserts his trial counsel was ineffective
because he did not object to this Fourth Amendment violation. In reviewing the record for
ineffective assistance of counsel, we begin with the strong presumption that the trial counsel’s
actions “fell within the wide range of reasonable and professional assistance.” Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002). A defendant may rebut the presumption by
demonstrating on the record that counsel’s performance was not based on sound strategy. See
Ramirez v. State, 987 S.W.2d 938, 945 (Tex. App.—Austin 1999, no pet.). We will reverse a
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conviction if “the record demonstrates that no plausible purpose was served” by the challenged
acts or omissions. Id.
The Fourth Amendment authorizes a brief investigatory detention based on reasonable
articulable suspicion in order to determine identity, briefly investigate, and/or maintain the status
quo. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968). An officer’s temporary detention is lawful if
based on reasonable suspicion that an individual is violating the law. Ford v. State, 158 S.W.3d
488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific,
articulable facts that when combined with rational inferences from those facts, would lead him to
reasonably conclude that a particular person actually is, has been, or soon will be engaged in
criminal activity. Id.
Ordinarily, a violation of a traffic law committed in view of a police officer is sufficient
authority for a traffic stop and temporary detention. See Lemmons v. State, 133 S.W.3d 751, 756
(Tex. App.—Fort Worth 2004, pet. ref’d). The premise of appellant’s argument on appeal rests
on his contention that speeding or reckless driving on private property is not a traffic violation.
Appellant contends the mobile home park was private property; therefore, a police officer could
not detain or arrest him for such driving. We disagree. “A person commits an offense if the
person drives a vehicle in willful or wanton disregard for the safety of persons or property.”
TEX. TRANSP. CODE ANN. § 545.401(a) (West 2011). Section 545.401 applies to “a highway or
other public place.” Id. § 545.401(c)(2). The Texas Penal Code broadly defines “public place”
to mean “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 ANN.
§ 1.07(a)(40) (West 2011). This definition is cast in broad, open-ended language and allows
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courts the discretion to expand its parameters where appropriate. State v. Gerstenkorn, 239
S.W.3d 357, 358-59 (Tex. App.—San Antonio 2007, no pet.). “The relevant inquiry is whether
the public has access to the place.” Id. at 359 (because anyone could enter gated community that
had a security guard and limited access, community was a public place); see also Woodruff v.
State, 899 S.W.2d 443, 445 (Tex. App.—Austin 1995, pet. ref’d) (holding air force base to be a
public place even though the access gates were guarded twenty-four hours a day and the base
“wasn’t open just for any vehicle to come on base”; however, “given the right set of
circumstances,” anyone could gain access).
Here, Wade described the area in which appellant had been driving as very dense with
several children running around. Appellant’s mother testified 500 to 600 people lived in the
community. It was undisputed that the public had unrestricted access to the mobile home park.
Therefore, we conclude the park was within the Penal Code’s definition of “public place.” As a
result, Wade witnessed a violation of a traffic law; therefore, he had the authority to detain
appellant. For this reason, even if appellant’s contentions on appeal are true—that trial counsel
was ignorant of Fourth Amendment law—any trial objection based on the grounds advanced by
appellant on appeal would have failed. Therefore, appellant has not established his “counsel’s
representation fell below the objective standard of professional norms.” Bone, 77 S.W.3d at 833.
CONCLUSION
We overrule appellant’s issue on appeal and affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
Do not publish
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