        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00347-CR



                                    Robert Campos, Appellant

                                                  v.

                                   The State of Texas, Appellee


               FROM COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY,
          NO. 82580, HONORABLE LINDA ANN RODRIGUEZ, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The State charged defendant Robert Campos with the Class B misdemeanor of

driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04(a) (West 2003). Following the

trial court’s denial of Campos’s motion to suppress, Campos pleaded guilty. The court sentenced

him to 180 days’ confinement, probated for two years, and ordered him to pay a fine of $750. In

one point of error, Campos argues that the trial court erred by not suppressing evidence obtained

during his investigative detention and subsequent arrest because Campos was not in a public place

at the time of his arrest, and therefore the arresting officer lacked probable cause to arrest him for

DWI. We affirm the judgment of the trial court.


                                         BACKGROUND

               At approximately 3:15 a.m. on June 17, 2006, Campos was pulled over by Officer

Jason Dibble of the Kyle Police Department near the intersection of Old Highway 81 and Center
Street in Kyle, Hays County, Texas.1 Dibble testified that he saw Campos driving in the northbound

lane of Old Highway 81, an area designated as a construction zone by the Texas Department of

Transportation. The northbound side of Old Highway 81 was blocked off by a combination of traffic

cones, barrels, and large barricades. According to Dibble, the “barricades and cones weren’t solid,”

but instead were periodically set around the construction zone. Dibble testified that barricades

prevented direct entry to the northbound lane of Old Highway 81 from nearby side streets, but that

Campos could have entered the relevant area of the construction zone through the parking lot of a

tire shop.2 Dibble also testified that the purpose of the cones, barrels, and barricades was to restrict

access to the construction zone, and that there may also have been signs indicating that the zone was

a restricted area.

                 Campos testified that he was returning home from a friend’s house when he was

pulled over after turning onto Old Highway 81. The defense stipulated at the suppression hearing

that Campos had been drinking. When Dibble approached Campos’s car to speak with him, he

noticed that Campos’s speech was slurred, and detected the odor of alcohol. After Dibble asked

Campos to get out of the car, Dibble smelled the odor of alcohol on him, and observed that he was

unsteady on his feet and still slurring his speech. Dibble then performed field sobriety tests,

including the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg




        1
         The facts recited herein are from the testimony and exhibits admitted at the pretrial
suppression hearing.
        2
            Campos testified that he did not enter the construction zone via the parking lot.

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stand test. Based on the results of the field sobriety tests, Dibble arrested Campos for driving

while intoxicated.3

                In a pretrial motion, Campos moved to suppress all evidence and statements obtained

incident to, pursuant to, and as a result of the detention and arrest. The trial court denied the motion

to suppress, and this appeal followed.


                                    STANDARD OF REVIEW

                The appropriate standard of review for a suppression ruling is a bifurcated review,

giving almost total deference to the trial court’s findings of fact, but conducting a de novo review

of the court’s application of law to those facts. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.

App. 2002); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Carmouche v. State,

10 S.W.3d 323, 327 (Tex. Crim. App. 2000)); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim.

App. 1997). The denial of a motion to suppress should be upheld if the ruling is reasonably

supported by the record and correct on any theory of the law applicable to the case. Laney v. State,

117 S.W.3d 854, 857 (Tex. Crim. App. 2003). We review de novo “mixed questions of law and

fact” that do not turn on credibility and demeanor. Guzman, 955 S.W.2d at 89. Finally, in reviewing

a trial court’s ruling on a motion to suppress, we must view the evidence in the light most favorable

to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).




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         Campos does not challenge the results of the field sobriety tests or the manner in which
they were performed.

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                                          DISCUSSION

               Campos argues that Dibble lacked probable cause to arrest him for DWI because

Campos was not in a “public place” at the time of the incident and subsequent arrest. Under the

Texas Penal Code, “A person commits an offense if the person is intoxicated while operating a

motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a) (West 2003). The Texas Penal

Code defines a “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, highways, and the common areas of schools,

hospitals, apartment houses, office buildings, transport facilities, and shops.” Id. § 1.07(a)(40)

(emphasis added). This listing of public places is not intended to be exclusive. See Woodruff

v. State, 899 S.W.2d 443, 445 (Tex. App.—Austin 1995, pet. ref’d) (“The definition of ‘public place’

is open ended, leaving to the courts the discretion to expand that definition where appropriate.” ).

               Campos does not deny that he was driving on Old Highway 81, a public road and

therefore an area specifically designated as a public place in the Texas Penal Code. See Tex. Penal

Code Ann. § 1.07(a)(40) (listing streets and highways as public places). Campos, however, argues

that because the northbound side of the road was blocked off by cones, barrels, and barriers, and

because (as Dibble admitted) the public was not supposed to enter the area, the construction zone

was no longer a public place.

               This argument contradicts both the plain language of the statute, which designates

streets and highways as public places, and Texas case law. Texas courts have held that even areas

that strictly limit public access may qualify as public places. When determining whether an area is

a public place, the relevant inquiry is whether the public or a substantial group of the public has

access to the place in question. Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App. 1994);


                                                 4
Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.—Fort Worth 2003, no pet.). The level of access does

not need to be complete or entirely unrestricted, provided members of the public could gain access

under the right set of circumstances.         See State v. Gerstenkorn, 239 S.W.3d 357, 359

(Tex. App.—San Antonio 2007, no pet.) (holding that gated community “with a security guard and

limited access” was public place); Woodruff, 899 S.W.2d at 445 (holding that street in Air Force base

was public place). Indeed, “[a]uthority exists for the proposition that ‘if the public has any access

to the place in question, it is public.’” Woodruff, 899 S.W.2d at 445-46 (quoting 6 Michael B.

Charlton, Texas Criminal Law § 1.6 (Texas Practice 1994) (emphasis added)).

               In Woodruff, the court held that an Air Force base qualifies as a public place, even

though security measures restricted general access to the base. 899 S.W.2d at 445. Though the base

was fenced in and entry denied to those without a connection to the base, “anyone could gain access”

by being “sponsored on” by someone on the base or by obtaining a visitor’s pass through the public

affairs office. Id. In concluding that the base was still a public place despite such restrictions, the

court reasoned that “the proper focus should be on the extent of actual access and not on the

formalities by which access is gained.” Id.

               Restrictions such as posted signs indicating that an area is closed or inaccessible do

not have the legal effect of denying the public access to that area. See Perry v. State, 991 S.W.2d

50, 52 (Tex. App.—Fort Worth 1998, pet. ref’d). In Perry, the court held that a person driving in

a public park past posted hours of operation was still in a public place. Id. at 51-52. The court

stated, “The fact that a park’s hours of operation are over and the public is not ‘supposed’ to use the

park is irrelevant to the determination of whether the place is one to which the public has access. The

relevant inquiry is whether the public can enter the premises.” Id. at 52.


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               In this case, the public clearly had actual access to the portion of Old Highway 81 that

had been designated as a construction zone. As they were placed only periodically, the cones,

barrels, and barriers did not completely restrict physical access to the zone. The zone was also

accessible from areas outside the roadway, such as the parking lot of the tire shop near the location

of Campos’s arrest. The presence of Campos in the construction zone—along with the presence of

other motorists, whose voices were heard at the start of the police recording of the arrest—further

indicates that the construction zone on Old Highway 81, in addition to being a “street” or “highway”

as listed in the statutory definition of “public place,” was an area accessible to a substantial

group of the public.

               Campos argues for suppression of evidence solely on the ground that he was not in

a public place at the time of his arrest for DWI. In light of our determination that Campos was in

a public place, we further conclude that his arrest was lawful, and therefore that the evidence

obtained was not the fruit of an illegal arrest. Accordingly, the trial court did not err in denying

Campos’s motion to suppress.

                                         CONCLUSION

               Because we find no reversible error, we affirm the judgment of the trial court.



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: September 25, 2009

Do Not Publish

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