                                                                                    ACCEPTED
                                                                                03-15-00079-CR
                                                                                        6836382
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                           9/8/2015 11:32:44 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                    No. 03-15-00079-CR
__________________________________________________________
                                                     FILED IN
       IN THE COURT OF APPEALS FOR THE THIRD  3rd COURT   OF APPEALS
                                                  AUSTIN, TEXAS
                   DISTRICT OF TEXAS          9/8/2015 11:32:44 PM
__________________________________________________________
                                                JEFFREY D. KYLE
                                                      Clerk
                 DAVID KENT THACKER, Appellant

                                  v.

               THE STATE OF TEXAS, Appellee
__________________________________________________________

On Appeal from the 207th Judicial District Court of Comal County, Texas
                       Cause No. CR2013-096
           Honorable Jack Robison, District Judge Presiding
__________________________________________________________

                  BRIEF FOR THE STATE
__________________________________________________________

                                                          Jennifer Tharp
                                                Criminal District Attorney

                                                                        By
                                                        Joshua D. Presley
                                                          SBN: 24088254
                                               Assistant District Attorney
                                         150 N. Seguin Avenue, Suite #307
                                                           (830) 221-1300
                                                       Fax (830) 608-2008
                                              New Braunfels, Texas 78130
                                            E-mail: preslj@co.comal.tx.us
                                                    Attorney for the State


                  Oral Argument Is Requested


                                   i
                    Identity of Parties and Counsel

             Attorneys for the Appellant David Kent Thacker

AT TRIAL & ON APPEAL
Gerald C. Moton
Moton Law Office
PMB 248
San Antonio, TX 78216
Tel: (830) 221-1300
Fax: (830) 620-5599
Email: motongerald32@gmail.com


              Attorneys for the Appellee, The State of Texas

AT TRIAL
Daniel Palmitier
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: palmid@co.comal.tx.us

ON APPEAL
Joshua D. Presley - SBN# 24088254
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: preslj@co.comal.tx.us




                                    ii
                                            Table of Contents

Index of Authorities ............................................................................................ v

Statement of the Case.......................................................................................... 1

Statement of Facts............................................................................................... 2

Facts Learned During Tucker’s Initial Encounter with Appellant Gave Rise to
Reasonable Suspicion for an Investigatory Stop ............................................... 7

         Summary of the Argument........................................................................ 7

         A. Officer Tucker observed that Appellant’s vehicle was in violation of §
         545.302 of the Transportation Code ........................................................... 9
         B. Officer Tucker could have investigated Appellant’s car parked on the
         railroad tracks pursuant to the community caretaking function .................. 10
         C. Facts learned from Tucker’s and Flugrath’s observations of Appellant led
         to reasonable suspicion justifying an investigative detention ..................... 15
Miranda Warnings Are Not Required at the Outset of an Investigatory
Detention......................................................................................................... 19
         Summary of the Argument...................................................................... 19
         Argument................................................................................................ 20

The Evidence Was Legally Sufficient to Convict Appellant of Operating a
Motor Vehicle in a Public Place ...................................................................... 25

         Summary of the Argument...................................................................... 25
         Argument................................................................................................ 28

Appellant’s Sentence Did Not Violate the Constitutional Prohibition on Cruel
and Unusual Punishment ................................................................................ 37

         Summary of the Argument...................................................................... 37


                                                         iii
         Argument................................................................................................ 38
         Summary of Historical Developments in Eighth Amendment Caselaw ...... 40
Prayer............................................................................................................... 58

Certificate of Service ........................................................................................ 59

Certificate of Compliance.................................................................................. 59
Appendix.......................................................................................................... 60




                                                          iv
                                          Index of Authorities
                              Statutes, Rules & Secondary Sources

Tex. Pen. Code Ann. § 1.07(a)(40)
(West, Westlaw through 2015 R.S.) ................................................................... 34

Tex. Transp. Code Ann. § 545.302 (West, Westlaw through 2015 R.S.) ....... passim

Tex. R. App. P. 33.1(a) ..................................................................................... 10

Tex. R. App. P. 38.1(h) ..................................................................................... 10

Tex. R. Evid. 103(a)(1) ..................................................................................... 21



                                                      Cases

Abernathy v. State, 963 S.W.2d 822 (Tex.
App.—San Antonio 1998, pet. ref’d) ................................................................. 22

Balentine v. State, 71 S.W.3d 763 (Tex.
Crim. App. 2002) ................................................................................................ 8

Belcher v. State, 244 S.W.3d 531 (Tex.
App.—Fort Worth 2007, no pet.) ....................................................................... 18

Brown v. State, 649 S.W.2d 160 (Tex.
App.—Austin 1983, no pet.).............................................................................. 28

Cortez v. State, 08-02-00363-CR, 2004
WL 178587 (Tex. App.—El Paso Jan. 29,
2004, pet. ref’d) ................................................................................................ 27

Davidson v. State, 03-13-00708-CR, 2014
WL 3809813 (Tex. App.—Austin Aug. 1,
2014, no pet.) (not designated for
publication) ...........................................................................................39, 40, 57


                                                         v
Ewing v. California, 538 U.S. 11 (2003) ............................................................ 51

Fowler v. State, 65 S.W.3d 116 (Tex.
App.—Amarillo 2001, no pet.) .......................................................................... 36

Garcia v. State, 43 S.W.3d 527 (Tex.
Crim. App. 2001) .......................................................................................... 8, 14

Garza Gonzalez v. State, 783 S.W.2d
774 (Tex. App.—Corpus Christi 1990,
no pet.) ....................................................................................................... 21, 22

Gonzales v. State, 369 S.W.3d 851 (Tex.
Crim. App. 2012) ....................................................................................... passim

Graham v. West Virginia, 224 U.S. 616
(1912) ........................................................................................................ 40, 41

Hall v. State, AP-75,121, 2007
WL 1847314 (Tex. Crim. App. June 27,
2007).......................................................................................................... 16, 18

Harmelin v. Michigan, 501 U.S. 957
(U.S. 1991) ....................................................................................................... 50

Hearne v. State, 80 S.W.3d 677 (Tex.
App.—Houston [1st Dist.] 2002, no pet.) ........................................................... 31

Hernandez v. State, 599 S.W.2d 614 (Tex.
Crim. App. 1980) (op. on reh’g) ........................................................................ 21

Hernandez v. State, 107 S.W.3d 41 (Tex.
App.—San Antonio 2003, pet. ref’d) ................................................................. 22

Herrera v. State, 241 S.W.3d 520 (Tex.
Crim. App. 2007) .............................................................................................. 22




                                                          vi
Holloman v. State, 11-95-275-CR, 1995
WL 17212433 (Tex. App.—Eastland Dec.
21, 1995, pet. ref’d) (not designated for
publication) ...................................................................................................... 35

Hutto v. Davis, 454 U.S. 370 (U.S. 1982)........................................... 43-45, 49-50

Jackson v. Virginia, 443 U.S. 307 (1979) ..................................................... 26, 28

Jacobs v. State, 80 S.W.3d 631 (Tex.App.
—Tyler 2002; no pet.) ....................................................................................... 55

Jordan v. State, 2-05-364-CR, 2006 WL
2310531 (Tex. App.—Fort Worth Aug.
10, 2006, no pet.) .............................................................................................. 24

Kiffe v. State, 361 S.W.3d 104 (Tex. App.
—Houston [1st Dist.] 2011, pet. ref’d) ......................................................... 26, 27

Kirsch v. State, 357 S.W.3d 645 (Tex.
Crim. App. 2012) .............................................................................................. 29

Kuciemba v. State, 310 S.W.3d 460 (Tex.
Crim. App. 2010) .............................................................................................. 33

Margraves v. State, 34 S.W.3d 912 (Tex.
Crim. App. 2000) .............................................................................................. 28

McGruder v. Puckett, 954 F.2d 313 (5th
Cir. 1992) .................................................................................................... 52-54

Mitten v. State, 228 S.W.3d 693 (Tex.
App.—Corpus Christi 2005, pet. ref’d,
untimely filed) .................................................................................................. 23

Priego v. State, 457 S.W.3d 565 (Tex.
App.—Texarkana 2015), petition for
discretionary review refused (June 3,
2015)........................................................................................................... 29-32


                                                         vii
Pryor v. State, 03-13-00347-CR, 2015
WL 2066228 (Tex. App.—Austin May 1,
2015) (not designated for publication),
petition for discretionary review filed
(Aug. 6, 2015) .................................................................................................. 39

Rachal v. State, 917 S.W.2d 799 (Tex.
Crim. App. 1996) .............................................................................................. 17

Roberson v. State, 16 S.W.3d 156 (Tex.
App.—Austin 2000, pet. ref’d) .................................................................... 27, 28

Rockwell v. State, AP-76,737, 2013 WL
6529575 (Tex. Crim. App. Dec. 11, 2013)
(not designated for publication) ......................................................................... 27

Rubeck v. State, 61 S.W.3d 741 (Tex.
App.—Fort Worth 2001, no pet.) ......................................................................... 9

Rummel v. Estelle, 445 U.S. 263 (U.S.
1980)......................................................................................................... passim

Russeau v. State, 291 S.W.3d 426 (Tex.
Crim. App. 2009) .............................................................................................. 10

Shaub v. State, 99 S.W.3d 253 (Tex. App.
—Fort Worth 2003, no pet.) ........................................................................ 34, 35

Simmons v. State, 14-07-00301-CR, 2008
WL 2580380 (Tex. App.—Houston [14th
Dist.] July 1, 2008, no pet.) ............................................................................... 10

Smith v. State, 683 S.W.2d 393, 410 (Tex.
Crim. App. 1984) .............................................................................................. 10

Solem v. Helm, 463 U.S. 277 (U.S. 1983)...................................................... 46-49

State v. Duran, 396 S.W.3d 563 (Tex.
Crim. App. 2013) ........................................................................................ 16, 18


                                                        viii
State v. Gray, 158 S.W.3d 465 (Tex. Crim.
App. 2005) ......................................................................................................... 8

State v. Villarreal, PD-0306-14, 2014 WL
6734178 (Tex. Crim. App. Nov. 26, 2014),
reh’g granted (Feb. 25, 2015) ............................................................................ 24

State v. Waldrop, 7 S.W.3d 836 (Tex. App.
—Austin 1999, no pet.) ..................................................................................... 21

Tanner v. State, 228 S.W.3d 852 (Tex.
App.—Austin 2007, no pet.)....................................................................... passim

Terry v. Ohio, 392 U.S. 1 (1968) ....................................................................... 15

Trevino v. State, 07-04-0066-CR, 2005 WL
1404037 (Tex. App.—Amarillo June 15,
2005, pet. ref'd) (not designated for
publication) ...................................................................................................... 56

Tufele v. State, 130 S.W.3d 267 (Tex. App.
—Houston [14th Dist.] 2004, no pet.) ................................................................ 10

U.S. v. Arvizu, 534 U.S. 266, 273 (2002) ............................................................ 15

Wiede v. State, 214 S.W.3d 17 (Tex. Crim.
App. 2007) ......................................................................................................... 8

Wiegand v. State, 03-98-00303-CR, 1999
WL 546844, at *1 (Tex. App.—Austin
July 29, 1999, pet. ref’d) (not designated
for publication) ............................................................................................. 9, 18

Winfrey v. State, 393 S.W.3d 763 (Tex.
Crim. App. 2013), reh’g denied (Apr. 17,
2013)................................................................................................................ 26




                                                          ix
                              Statement of the Case
      Appellant was charged by indictment with Driving While Intoxicated with

Two or More Previous Convictions for the Same Type of Offense (I C.R. at 6).

The charge was enhanced from a third degree felony to habitual offender status

(id.). Although the trial court initially denied Appellant’s motion to suppress the

results of his warrantless blood draw, it later reconsidered and granted the motion

to suppress, apparently based solely on the holding in “The State of Texas v. David

Villareal, P.D. 0306-14” (id. at 146).

      Appellant plead not guilty and was subsequently convicted by a jury (I Supp.

C.R. at 4). After hearing evidence and argument, punishment was also assessed by

the jury at life imprisonment on January 28, 2015 (id.). Appellant timely filed his

notice of appeal.




                                         1
                                     Statement of Facts

       On the night of Saturday, September 14, 2012, Officer Jason Tucker

responded to a report of a vehicle on the railroad tracks (II R.R. at 9; IV R.R. at

55). 1 At the railroad’s dark and sparsely-populated intersection with FM 306,

Tucker observed a maroon Cadillac parked about 20 feet off the roadway and right

next to the tracks (II R.R. at 10; Defense Ex. 1 at 11:29:50 p.m.; State’s Ex. 2

11:29:50)). 2 Tucker realized that any passing train would have struck the Cadillac

(II R.R. at 10; IV R.R. at 57). Before he exited his patrol car, Tucker had police

dispatch contact the Union Pacific railroad company to have them stop all trains on

the track (VI R.R. at 6; IV R.R. at 59).

       As Tucker approached the vehicle, he saw that the vehicle was still running

(VI R.R. at 6; IV R.R. at 64). He shined his flashlight into the car and observed

Appellant, David Thacker, sitting in the driver’s seat (VI R.R. at 6; IV R.R. at 57).

Appellant was slumped over the center console and was sound asleep (VI R.R. at

6; IV R.R. at 57). Tucker made his way to the driver’s side of the car and

attempted to wake Appellant up (VI R.R. at 6; IV R.R. at 57). Tucker was


1
  For quick reference, the Statement of Facts includes parallel citations to the suppression
hearing first (II R.R., VI R.R. at 6-7, or Defense Ex. 1) followed by a citation to the trial itself
(IV R.R. or State’s Ex. 2) where the information appears in both records.
2
  All times listed in this brief refer to the integrated timestamps in the videos depicting the actual
hour, minute and second. Furthermore, the timestamp references to Defense Ex. 1 (entered into
evidence at the motion to suppress), and State’s Ex. 2 (entered into evidence at trial), will be the
same.


                                                  2
eventually able to wake the Appellant by shaking and yelling at him (VI R.R. at 6;

IV R.R. at 57). Appellant was disoriented and incoherent, and Tucker noticed a

strong odor of alcohol coming from the vehicle (II R.R. at 12; IV R.R. at 57-59,

62). When Tucker told Appellant to hop out of the car, Appellant said he would

drive (Defense Ex. 1 at 11:32:10; State’s Ex. 2 at 11:32:10).

      Tucker told Appellant to put his flip-flop on so he could get out of the car,

and Appellant struggled to get it on his foot (id.; IV R.R. at 58). When Appellant

finally exited the vehicle, he had to use the Cadillac’s door as a crutch, and

appeared to be “pretty unsteady on his feet” (II R.R. at 12; see also IV R.R. at 58).

Because Tucker was worried about their dangerous location, he immediately

escorted Appellant to his patrol car, holding Appellant’s arm to help him maintain

his balance (II R.R. at 12-13; VI R.R. at 6; IV R.R. at 58). Appellant stood by

Tucker’s patrol vehicle – leaning on the grill guard for support – while Tucker

returned to the Cadillac (II R.R. at 13; IV R.R. at 58-59). Tucker moved the

Cadillac a safe distance away from the tracks, had dispatch call Union Pacific to

inform them the line was now clear, and returned to the Appellant (VI R.R. at 6-7;

IV R.R. at 58-60 (omitting reference to the subsequent call to Union Pacific)).

      Appellant said he lived in Canyon Lake, Texas (Defense Ex. 1 at 11:37:40;

State’s Ex. 2 at 11:37:40). Tucker could smell a strong odor of alcohol coming

from Appellant (VI R.R. at 7; IV R.R. at 59 (metabolized alcohol)). Tucker also


                                         3
noticed that Appellant’s speech was slurred, and his eyes were bloodshot and

glassy (II R.R. at 14; IV R.R. at 62). Appellant said he had been with some friends,

and he was going to another friend’s house in Boerne (Defense Ex. 1 at 11:37:50,

11:39:10; State’s Ex. 2 at 11:37:50, 11:39:10). When Tucker asked Appellant

where he was, he believed he was in Boerne (Defense Ex. 1 at 11:38:10; State’s

Ex. 2 at 11:38:10). Appellant said he “may have made a mistake” (Defense Ex. 1 at

11:38:28; State’s Ex. 2 at 11:38:28). When Tucker asked “[h]ow much have you

had to drink, partner?” Appellant responded “[t]oo much” (Defense Ex. 1 at

11:40:24; State’s Ex. 2 at 11:40:24). Tucker pointed out that if a train had come by

Appellant probably would have been killed, and Appellant said he “didn’t want

that” (Defense Ex. 1 at 11:40:30; State’s Ex. 2 at 11:40:30).

      Appellant told Tucker that his mother could come pick him up, adding that

he knew he “messed up” (Defense Ex. 1 at 11:43:52; State’s Ex. 2 at 11:43:52).

Tucker explained that there would be an investigation, stating that “we’re far from

making a decision – [on] what we’re gonna do tonight” (Defense Ex. 1 at 11:43:52;

State’s Ex. 2 at 11:43:52). Appellant again stated “I know I messed up. I

apologize” (Defense Ex. 1 at 11:44:13; State’s Ex. 2 at 11:44:13). Tucker told

Appellant that Officer Flugrath would ask him some questions to figure out what

was going on (Defense Ex. 1 at 11:44:13; State’s Ex. 2 at 11:44:13).




                                          4
      Officer Flugrath arrived soon after Tucker (Defense Ex. 1 at 11:41:15;

State’s Ex. 2 at 11:41:15). Flugrath had extensive experience with Driving While

Intoxicated investigations (II R.R. at 39; VI R.R. at 9; IV R.R. at 85-86). When he

walked up to Tucker and Appellant, Flugrath observed that Appellant appeared to

be very disoriented (II R.R. at 35; IV R.R. at 88). After speaking with Tucker,

Flugrath asked Appellant to come over to his vehicle so he could continue the

interview (II R.R. at 35; IV R.R. at 90).

      Flugrath likewise observed Appellant’s glassy, bloodshot eyes and the

strong odor of alcohol coming from Appellant (II R.R. at 36-37; IV R.R. at 90).

Appellant said he had been visiting a friend in New Braunfels (VI R.R. at 10;

State’s Ex. 3-A at 11:47:03). Appellant said “I know I’m in trouble,” and “I’m the

worst” (State’s Ex. 3-A at 11:47:48). Appellant thought it was 11:30 p.m., and told

Flugrath he had left his friend’s house around 10:30 p.m. (State’s Ex. 3-A at

11:48:33; see also II R.R. at 37). Appellant told Flugrath that he had been alone in

the car and that he remembered driving over the tracks, but did not remember

parking next to them (II R.R. at 37; State’s Ex. 3-A at 11:49:10; IV R.R. at 92).

Appellant said “[a]pparently I made a mistake because if I was on a railroad track I

apologize” (State’s Ex. 3-A at 11:50:28; see also II R.R. at 39). When asked how

much he drank at his friend’s house, Appellant said “enough” (II R.R. at 37;

State’s Ex. 3-A at 11:50:55).


                                            5
      Flugrath performed the Horizontal Gaze Nystagmus test on Appellant,

observing all six clues out of a possible six (II R.R. at 38; IV R.R. at 100). When

the officer tried to have Appellant perform the walk-and-turn, Appellant said he

could not do anything heel-to-toe (II R.R. at 39; IV R.R. at 102). When asked to

perform the one-legged stand, Appellant refused, saying he was used to carrying

200-pound weights on his shoulders and could not balance without them (II R.R. at

39; State’s Ex. 3-A at 11:58:50). Flugrath then asked Appellant to recite the

alphabet; Appellant recited “A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, M, M,

L, M, N, O, P. Then he paused for a minute. Q, R, S, T, U, V, W, Y, X. Then he

paused again, and then Y, Z” (II R.R. at 40; see also IV R.R. at 106). Appellant

then said he could not perform the Romberg test because he was once in a rollover

accident and could not tilt his head back (II R.R. at 40; State’s Ex. 3-A at

12:00:50). Appellant then offered his hands behind his back so Flugrath could

handcuff him (State’s Ex. 3-A at 12:01:00).

      Flugrath read Appellant his DIC-24 warning and Appellant refused to give a

voluntary sample of his blood (II R.R. at 41-42; State’s Ex. 3-A at 12:05:30,

12:09:55). After Appellant’s arrest, Tucker performed an inventory search of the

vehicle and located an open container of Calypso Spiced Rum – ¼ of it missing –

in the passenger floorboard of the Cadillac (II R.R. at 15; IV R.R. at 63). Officer

Tucker observed that “[a]s drunk as he is, he had to be drinking something else,


                                        6
cause there wasn’t enough missing out of that bottle to be that drunk” (Defense Ex.

1. at 12:12:24; State’s Ex. 2 at 12:12:24). At trial, both Flugrath and Tucker

testified that based on their training and experience, Appellant was too intoxicated

to drive that night (IV R.R. at 77, 106-07; see also II R.R. at 40-41).



  Facts Learned During Tucker’s Initial Encounter with Appellant
    Gave Rise to Reasonable Suspicion for an Investigatory Stop
                             Summary of the Argument

      Although Appellant complains that his arrest was made without a warrant, at

the time of his arrest, officers had developed probable cause to believe he had been

Driving While Intoxicated. Officer Tucker’s initial encounter with Appellant was

not a “stop” – though Tucker would have been justified in “stopping” Appellant for

an apparent violation of the Transportation Code or pursuant to the community

caretaking function. Facts learned during Tucker’s encounter – communicated to

Officer Flugrath – gave rise to reasonable suspicion to investigate Appellant for

Driving While Intoxicated, and the subsequent investigative detention gave rise to

probable cause for the arrest.


                      Motion to Suppress Standard of Review

      When reviewing a trial court’s decision on a motion to suppress, appellate

courts will give almost total deference to the trial court’s determination of

                                          7
historical facts, but review de novo its application of the law to the facts. Tanner v.

State, 228 S.W.3d 852, 856 (Tex. App.—Austin 2007, no pet.) (citing Maxwell v.

State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002)). However, appellate courts

should also give almost total deference to a trial court’s application of the law to

fact questions that turn on credibility and demeanor. Garcia v. State, 43 S.W.3d

527, 530 (Tex. Crim. App. 2001) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997)).

      Where trial courts do not make explicit findings of fact, the appellate court

will review the evidence in a light most favorable to the trial court’s ruling and

assume it made implicit findings of fact supported by the record. Wiede v. State,

214 S.W.3d 17, 25 (Tex. Crim. App. 2007); Balentine v. State, 71 S.W.3d 763, 768

(Tex. Crim. App. 2002) (citing Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.

Crim. App. 2000)) (internal citations omitted). “[C]ourts afford the prevailing party

‘the strongest legitimate view of the evidence and all reasonable inferences that

may be drawn from that evidence.” Gonzales v. State, 369 S.W.3d 851, 854 (Tex.

Crim. App. 2012). Courts must sustain the trial court’s ruling if it is reasonably

supported by the record and is correct on any theory of law applicable to the case.

State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005) (citing State v. Ross,

32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000)).




                                          8
A.    Officer Tucker observed that Appellant’s vehicle was in violation of §
      545.302 of the Transportation Code.

      Section 545.302 of the Transportation Code prohibits stopping, standing, or

parking in certain areas. Tex. Transp. Code Ann. § 545.302 (West, Westlaw

through 2015 R.S.). It states that “[a]n operator may not stop, stand, or park a

vehicle: … on a railroad track ….” Id. § 545.302(a)(8); see also id. § 545.302

(c)(1) (prohibiting parking “within 50 feet of the nearest rail of a railroad

crossing”).

      At the suppression hearing, Tucker testified that while he did not know the

specific provision, “the way [Appellant] was parked … is a violation of the Traffic

Code of some sort” (II R.R. at 18; id. at 10 (Appellant was parked only 20 feet off

the roadway and right next to the track)). Because Appellant was parked in

violation of § 545.302, even if the encounter can be considered a “stop” (see infra),

Tucker had at least reasonable suspicion that Appellant had committed a traffic

offense. From his subsequent observation of Appellant, Tucker learned additional

facts leading to reasonable suspicion to investigate for Driving While Intoxicated.

See Rubeck v. State, 61 S.W.3d 741, 745 (Tex. App.—Fort Worth 2001, no pet.)

(“Once a police officer makes a bona fide stop for a traffic offense, he may also

investigate any other offense that he reasonably suspects has been committed.”);

Wiegand v. State, 03-98-00303-CR, 1999 WL 546844, at *1 (Tex. App.—Austin

July 29, 1999, pet. ref’d) (not designated for publication) (where officer initially
                                         9
stopped appellant for traffic violation, appellant’s manner of speech and the odor

of alcohol on his breath gave rise to reasonable suspicion to investigate for DWI).

As discussed infra, Tucker communicated these facts to Flugrath, and Appellant’s

contention that Flugrath lacked reasonable suspicion for the investigative detention

therefore lacks merit.



B.    Officer Tucker could have investigated Appellant’s car parked on the
      railroad tracks pursuant to the community caretaking function.

      Although Appellant recites some of the standard of review for community

caretaking stops, he does not apparently challenge Tucker’s ability to rely on the

community caretaking function in the instant case. See Brief for Appellant at 12,

17-20. The lack of any specific argument or citations to the record regarding the

caretaking function should preclude review of that issue. See Tex. R. App. P.

33.1(a), 38.1(h), (i); Smith v. State, 683 S.W.2d 393, 410 (Tex. Crim. App. 1984)

(holding that nothing was preserved for appellate review when appellant did not

cite authority and did not present argument on issue); Russeau v. State, 291 S.W.3d

426, 437 (Tex. Crim. App. 2009) (appellant failed to point out in record where he

made argument to the trial court); Tufele v. State, 130 S.W.3d 267, 270-71 (Tex.

App.—Houston [14th Dist.] 2004, no pet.). However, out of an abundance of

caution, the State will address it.



                                        10
                   Community Caretaking Standard of Review

      “‘As a part of his duty to ‘serve and protect,’ a police officer may stop and

assist an individual whom a reasonable person, given the totality of the

circumstances, would believe is in need of help.’” Gonzales v. State, 369 S.W.3d

851, 854 (Tex. Crim. App. 2012) (emphasis in original). In evaluating a

community-caretaking stop, courts will determine whether the officer was

primarily motivated by the community-caretaking purpose and whether the

officer’s belief that the individual needed help was reasonable. Id. at 854-55. To

determine the reasonableness of the officer’s belief, the Court of Criminal Appeals

proposed a non-exclusive list of factors to consider:

      (1) the nature and level of the distress exhibited by the individual; (2)
      the location of the individual; (3) whether or not the individual was
      alone and/or had access to assistance independent of that offered by
      the officer; and (4) to what extent the individual—if not assisted—
      presented a danger to himself or others.

Id. at 855. The first factor is generally accorded the greatest weight but is not

always dispositive. Id. The unique facts of each case determine the result, and

different factors may be inapplicable or have varying weights in a given case. Id.

      In Gonzales, the officer observed the defendant’s vehicle pull off the road

just before 1:00 a.m. in an area with few business and little traffic. Id. at 853.

When the officer decided to see if the driver needed assistance, he activated his

traffic lights and began to pull onto the shoulder behind the defendant’s vehicle. Id.


                                         11
The defendant began to drive away, but quickly stopped. Id. When the officer

approached to ask the defendant if he was okay, he noticed a strong odor of alcohol

coming from the vehicle, and that the defendant’s eyes were bloodshot and his

speech was slurred. Id. The officer then began a driving-while-intoxicated

investigation. Id.

      The Court of Criminal Appeals observed that it would not second-guess the

trial court’s determination that the officer was primarily motivated by his public -

safety role. Id. at 855. The Court deferred to the trial court’s determination of that

issue because it was highly dependent on credibility and demeanor. Id. The Court

then evaluated the reasonableness of the officer’s belief that the defendant needed

help. First, it was reasonable based on the officer’s observations and inferences to

believe the defendant was experiencing some form of distress. Id. at 856. Second,

the location compounded the defendant’s distress, in that the events took place in a

lightly populated area on the way out of town, with minimal traffic at that late

hour. Id. Third, the defendant’s location also limited his access to assistance. Id.

The Court afforded little weight to the fourth factor – whether the unassisted

defendant was a danger to himself or others – because of its awkward fit with the

facts of that case. Id. at 856-57. The Court found that the officer’s belief that the

defendant needed help was reasonable under the totality of the circumstances. Id.

at 857.


                                         12
                                      Analysis

        Appellant appears to concede that Officer Tucker’s initial check on

Appellant was justified by the community caretaking exception. See Brief for

Appellant at 19 (Appellant only contests Officer Flugrath’s investigation).

Furthermore, at the outset it is important to note that Appellant was not “seized”

when Tucker first came to investigate and determine why he was parked on the

tracks because Appellant was unconscious in his car (II R.R. at 10-12). See Crain

v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010) (whereas an investigative

detention occurs “when a person yields to the police officer’s show of authority

under a reasonable belief that he is not free to leave,” a consensual encounter is not

a seizure). Though Appellant’s encounter with Tucker was not truly a “seizure”

until sometime after Tucker learned of information warranting reasonable

suspicion to conduct an investigative detention, even if it was a community

caretaking “stop,” it would have been justified on the extraordinary facts of the

case.

        There was ample support in the record for the trial court to determine that

Tucker was primarily motivated by the community-caretaking function. See

Statement of Facts at 2-6; II R.R. at 10 (Tucker testified that Appellant’s car was

close enough to the active railroad tracks that any train would have collided with

it); id. at 12-13 (“Knowing that we had a danger involved,” Tucker did not


                                         13
immediately ask questions, instead escorting Appellant to safety). Because the trial

court’s implied finding on this issue is highly dependent on credibility and

demeanor, the Court should defer to the trial court’s finding in the State’s favor.

See Garcia, 43 S.W.3d at 530; see also Gonzales, 369 S.W.3d at 855.

      When evaluating the reasonableness of the officer’s belief that the defendant

needed help, just as in Gonzales, the Appellant was located in a lightly-populated

area at a late hour with relatively little traffic. See Defense Ex. 1 at 11:29:50 p.m.

Over and above Gonzales, however, Tucker (and the private citizen who called the

police) could infer distress from the fact that Appellant was parked on an active

railroad track. See id.; II R.R. at 12-13. This potentially deadly location

compounded Appellant’s distress exponentially more than the mere “isolation” of

the defendant in Gonzales. Compare with 369 S.W.3d at 856. Furthermore, while

in both cases there was little chance of independent assistance, in Appellant’s case,

Tucker was aware of the fact that a private citizen had called the police to handle

the issue. See II R.R. at 9, 18. This fact further established that – likely due to the

inherent danger of the situation – there would be no intervention independent of

the police. Finally, while in Gonzales the final factor was largely inapplicable, in

Appellant’s case, there was a clear danger that if left parked on the active track,

Appellant was at serious risk of losing his life, not to mention a potential threat for

bystanders, train passengers, or derailment. See 369 S.W.3d at 856-57. Every


                                          14
single factor in the instant case is far more compelling than the circumstances

found sufficient in Gonzales, and the Court should find that any community-

caretaking stop of Appellant was likewise reasonable based on the totality of the

circumstances. See 369 S.W.3d at 857.


C.    Facts learned from Tucker’s and Flugrath’s observations of Appellant
      led to reasonable suspicion justifying an investigative detention.

                    Reasonable Suspicion Standard of Review

      The Supreme Court has noted that “[t]here is ‘no ready test for determining

reasonableness other than by balancing the need to search [or seize] against the

invasion which the search [or seizure] entails.’” Terry v. Ohio, 392 U.S. 1, 21

(1968) (quoting Camara v. Municipal Court, 387 U.S. 523, 534-37 (1967)). The

reasonableness of a temporary detention must be considered in view of the totality

of the circumstances and the cumulative information available at the inception of

the encounter. Tanner v. State, 228 S.W.3d 852, 855 (Tex. App.—Austin 2007, no

pet.); U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (overruled in part on other grounds

by Davis v. Washington, 547 U.S. 813 (2006)). Courts must not isolate each fact

and decide whether each one independently is consistent with innocent activity.

Arvizu, 534 U.S. at 274.

      Reviewing courts will factor in an officer’s training and experience when

evaluating whether he had reasonable suspicion to justify an investigative


                                        15
detention. Id. at 276. The reviewing court will consider all information available to

the officer at the time of the stop, including that obtained from his own

observations or relayed to him by other members of law enforcement. Hall v. State,

AP-75,121, 2007 WL 1847314, at *3 (Tex. Crim. App. June 27, 2007) (citing

Jackson v. State, 745 S.W.2d 4, 11-17 (Tex. Crim. App. 1988)). Additionally,

under the “collective knowledge” doctrine, the cumulative information available to

several cooperating officers may be considered. State v. Duran, 396 S.W.3d 563,

574 n.12 (Tex. Crim. App. 2013) (“[T]he detaining officer need not be personally

aware of every fact that objectively supports a reasonable suspicion to detain;

rather, ‘the cumulative information known to the cooperating officers at the time of

the stop is to be considered in determining whether reasonable suspicion exists.’”)

(quoting Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)).

      Reasonable suspicion that criminal activity may be afoot must be based upon

commonsense judgments and inferences about human behavior. Tanner, 228

S.W.3d at 855. Courts require only a “minimal level of objective justification” on

the part of the officer. Id. (citing U.S. v. Sokolow, 490 U.S. 1, 7 (1989)). An

officer’s determination of the likelihood of criminal activity need not rise to the

level required for probable cause, and it falls considerably short of satisfying a

preponderance of the evidence standard. Tanner, 228 S.W.3d at 856 (citing Arvizu,

534 U.S. at 274).


                                         16
                                             Analysis

       Appellant apparently asserts that when Officer Flugrath arrived on the scene,

he lacked information necessary to form reasonable suspicion to justify

Appellant’s investigative detention for DWI. Brief for Appellant at 19. However,

Flugrath had ample information from his own observations and from Tucker to

justify the temporary investigative detention.

       Officer Tucker had been a police officer for around 12 years at the time of

the offense (II R.R. at 9; IV R.R. at 52).3 As detailed in the statement of facts,

supra (at 2-7), Officer Tucker initially came upon Appellant passed out in his

running car, which was parked on an active railroad track (VI R.R. at 6). When

Tucker finally managed to wake him, Appellant was disoriented, was very

unsteady on his feet, had bloodshot and glassy eyes, slurred his speech, and had a

strong odor of alcohol coming from his person (id. at 6-7). Officer Flugrath arrived

while Tucker was still speaking with Appellant, less than 10 minutes after

Appellant woke up (Defense Ex. 1 at 11:31:22; id. at 11:41:15). 4

3
  The State went into the officers’ training and experience in greater detail at trial. See Rachal v.
State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (“Where the State raises the issue at trial
either without objection or with subsequent participation in the inquiry by the defense, the
defendant has made an election to re-open the evidence, and consideration of the relevant trial
testimony is appropriate in our review”).
4
   One court of appeals found a 27- minute delay while merely waiting for another officer
reasonable:
        Legitimate law enforcement purposes include a delay to permit the arrival of a
        DWI enforcement officer so that the supervisory officer initiating the stop can
        return to duty, a delay for the arrival of a video camera so that the DWI
        investigation and the field sobriety tests can be taped in accordance with
                                                17
       Officer Flugrath had been employed as a patrol officer since 1995 (II R.R. at

39) and testified that he had probably conducted over a thousand DWI stops in his

career (IV R.R. at 85-86). Flugrath discussed the situation with Tucker – including

the fact that Appellant was parked on the tracks – before Flugrath set up his patrol

car and camera for sobriety testing (II R.R. at 35, 37; see also VI R.R. at 10

(Flugrath states in his report he spoke with Tucker and verified certain facts about

the incident). The trial court could reasonably infer that Tucker relayed his other

observations to Flugrath. See Gonzales, 369 S.W.3d at 854. Because Flugrath

could rely on the information Tucker gave him – along with his own personal

observations that Appellant was looking down and was very disoriented (II R.R. at

35), smelled strongly of alcohol and had bloodshot and glassy eyes (id. at 36-38) –

Flugrath had reasonable suspicion sufficient to justify his investigative detention

and sobriety testing. See Hall, 2007 WL 1847314, at *3; Duran, 396 S.W.3d at 574

n.12; Wiegand, 1999 WL 546844, at *1.

       Based on the forgoing facts, an officer as experienced with DWI’s as

Flugrath could reasonably infer there was a substantial chance Appellant – who

was sleeping while parked on the railroad track – had been driving while

intoxicated. See also The Evidence Was Legally Sufficient, infra (at 25). The


       department procedures, and a delay for the arrival of a rookie officer who needs
       training.
Belcher v. State, 244 S.W.3d 531, 540-41 (Tex. App.—Fort Worth 2007, no pet.).


                                             18
Court should give due weight to the trial court’s implied finding that Officers

Tucker and Flugrath were credible and that their inferences were reasonable. See

Tanner, 228 S.W.3d at 857; Gonzales, 369 S.W.3d at 854. When Flugrath took

over the investigation, if he had not further investigated the situation – with all the

cumulative evidence available to him at that point – it would have been poor police

work. See Tanner, 228 S.W.3d at 859 (quoting Terry v. Ohio, 392 U.S. 1, 21

(1968)). The record supports the trial court’s conclusion that Flugrath had

reasonable suspicion that Appellant had been driving while intoxicated, based on

commonsense inferences about human behavior in the context of the totality of

information available to him.



          Miranda Warnings Are Not Required at the Outset of an
                     Investigatory Detention

                             Summary of the Argument

      Appellant argues that because Officer Tucker believed he would undertake a

DWI investigation, he should have immediately given Miranda warnings.

However, even if Appellant had adequately preserved his point of error, Miranda

warnings are not required for investigative detentions. Furthermore, in Appellant’s

case, even if all of Appellant’s testimonial statements had been suppressed, the

remaining overwhelming evidence would still have led to his conviction.


                                          19
                                          Argument

       In Appellant’s second point of error, he complains that trial court erred in

failing to grant his broad motion to suppress “all written and oral statements made

by Defendant to any law enforcement officers or others in connection with this

case, and any testimony by the San Antonio Police Department or any other law

enforcement officers or others concerning any such statements.” I C.R. at 46; see

also Brief for Appellant at 21. Appellant claims that officers never observed a

traffic offense, and the fact that questioning occurred at night on the side of the

road meant Appellant was interrogated during a custodial interrogation. Brief for

Appellant at 24. Specifically, Appellant asserts that Tucker’s belief that there

would be a DWI investigation at the time he removed Appellant from his car

means that Tucker should have read the Miranda warnings before he proceeded

any further. Id. at 12.

       First, Appellant’s overbroad motion to suppress “all … statements made by

Defendant to any law enforcement officers or others” (I C.R. at 46) is not specific

as to the objectionable statements Appellant wished to suppress, nor did Appellant

identify for the trial court (or this Court) 5 any particular statement he wished to


5
 See Tex. R. App. P. 33.1(a), 38.1(h), (i); Smith v. State, 683 S.W.2d 393, 410 (Tex. Crim. App.
1984) (holding that nothing was preserved for appellate review when appellant did not cite
authority and did not present argument on issue); Russeau v. State, 291 S.W.3d 426, 437 (Tex.
Crim. App. 2009) (appellant failed to point out in record where he made argument to the trial
court); Tufele v. State, 130 S.W.3d 267, 270-71 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

                                              20
suppress. See Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. 1980)

(op. on reh’g) (observing that even if that appellant’s “objection sufficiently stated

grounds for the objection, it did not identify what was objected to.”); see also Tex.

R. Evid. 103(a)(1) (requiring a specific objection). Because at least some of

Appellant’s statements were admissible (e.g., statements made while the Tucker

was trying to get Appellant and his Cadillac safely off the tracks), Appellant’s

failure to point out for the trial court which statement was inadmissible – based on

what particular ground – waived error. See Garza Gonzalez v. State, 783 S.W.2d

774, 778 (Tex. App.—Corpus Christi 1990, no pet.) (observing the appellant failed

to adequately raise his complaint in the trial court, noting that “the necessity of

presenting a specific objection with supporting grounds is particularly important in

a case such as this one where the accused made more than one statement”); see

also II R.R. at 53-55 (where Appellant did not point out specific statements or

grounds to support suppression of those statements).

      Second, as discussed supra (at *9-10), Tucker observed that Appellant was

parked in violation of Texas Transportation Code § 545.302. The mere fact that the

investigatory detention occurred on the side of the road at night (Brief for

Appellant at 24) does not transform the situation into a custodial interrogation. See

State v. Waldrop, 7 S.W.3d 836, 839 (Tex. App.—Austin 1999, no pet.)

(statements made during an investigatory detention on the roadside after midnight


                                         21
were not part of a custodial interrogation). Appellant failed to adequately explain

to the trial court how any of his statements were made during a “custodial

interrogation.” See Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007)

(“At trial, the defendant bears the initial burden of proving that a statement was the

product of ‘custodial interrogation’”).

      Furthermore, Appellant’s complaint on appeal that Tucker’s belief there

would be a DWI investigation somehow necessitated a Miranda warning (Brief for

Appellant at 12, 24) was not presented to the trial court (II R.R. at 53-55). See

Garza Gonzales, 783 S.W.2d at 778 (because the appellant’s complaint in the trial

court did not comport with that raised on appeal, “nothing is preserved for

review”). Notably, even if such a complaint had been adequately presented to the

trial court, the trial court would not have erred in rejecting it. See Hernandez v.

State, 107 S.W.3d 41, 48 (Tex. App.—San Antonio 2003, pet. ref’d) (investigatory

detentions do not require Miranda warnings); Abernathy v. State, 963 S.W.2d 822,

824 (Tex. App.—San Antonio 1998, pet. ref’d) (observing the Supreme Court had

held that a “motorist was not in custody for purposes of Miranda even though the

traffic officer ‘apparently decided as soon as [the motorist] stepped out of his car

that [the motorist] would be taken into custody and charged with a traffic

offense’”); Simmons v. State, 14-07-00301-CR, 2008 WL 2580380, at *3 (Tex.

App.—Houston [14th Dist.] July 1, 2008, no pet.) (not designated for publication)


                                          22
(“the right to Miranda warnings is not triggered during an investigative

detention”).

      Finally, even if Appellant had preserved his issues and the trial court had

erred in admitting one of Appellant’s multiple statements, in light of the other

overwhelming evidence of Appellant’s guilt, any error would have had no – or

only slight – influence on the verdict, and would be harmless. See Mitten v. State,

228 S.W.3d 693, 696 (Tex. App.—Corpus Christi 2005, pet. ref’d, untimely filed).

As discussed in the Statement of Facts, supra, Appellant was discovered slumped

over his center console, sleeping, while parked on an active railroad track. When

Tucker finally managed to wake him up, Appellant was sluggish, disoriented and

incoherent (see, e.g., IV R.R. at 57). Officers noticed the strong odor of

metabolized alcohol coming from Appellant (IV R.R. at 59, 90-91). Appellant

struggled to put his flip-flop on (State’s Ex. 2 at 11:32:10; IV R.R. at 58). He had

obvious problems with his balance, having to use vehicles as a crutch and needing

the officer’s assistance to walk (IV R.R. at 58). Appellant slurred his speech, and

his eyes were bloodshot and glassy (id. at 62).

      Furthermore, Appellant failed or refused to perform several sobriety tests,

often giving outlandish explanations for his refusals. Statement of Facts, supra (at

6-7). Such tests do not implicate Miranda:

      The court of criminal appeals has held that sobriety tests yield
      physical evidence of a suspect’s mental and physical faculties, and
                                         23
       thus, the results are not testimonial evidence that implicates Miranda.
       Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997) (holding
       that field sobriety tests do not violate the privilege against self-
       incrimination). Specifically, the court of criminal appeals has
       reasoned that field sobriety tests are not testimonial because their
       results do not create “an express or implied assertion of fact or belief.”
       Id.

Jordan v. State, 2-05-364-CR, 2006 WL 2310531, at *2 (Tex. App.—Fort Worth

Aug. 10, 2006, no pet.). Jordan also observed that no statute requires warnings

prior to the administration of field sobriety tests. Id. at *3 (citing Martin v. State,

97 S.W.3d 718, 720 (Tex. App.—Waco 2003, pet. ref’d). Appellant also refused to

give a voluntary sample of his blood (State’s Ex. 3-A at 12:05:30, 12:09:55). 6

Officers found a container of rum missing ¼ of its contents in the vehicle, an

amount which Tucker observed was insufficient to render Appellant as drunk as he

was (State’s Ex. 2 at 12:12:24). Flugrath – who estimated he had conducted over

1,000 DWI investigations (IV R.R. at 85-86) – testified that in his opinion


6
   The trial court erred in suppressing warrantless blood-draw evidence based on The State of
Texas vs. David Villareal; this will be particularly evident if the Court of Criminal Appeals
determines on rehearing that the blood draw statute at issue is constitutional (I C.R. at 146, citing
P.D. 0306-14; see also Order Suppressing, attached). State v. Villarreal, PD-0306-14, 2014 WL
6734178, at *1 (Tex. Crim. App. Nov. 26, 2014), reh’g granted (Feb. 25, 2015). The State
therefore appeals the following cross point: the trial court erred in ruling that suppression was
mandated based on Villareal, 2014 WL 6734178. See Tex. Crim. Proc. Code Ann. § art. 44.01(c)
(West, Westlaw through 2015 Sess.) (“the state is entitled to appeal a ruling on a question of law
if the defendant is convicted and appeals the judgment”); see also II R.R. at 60 (where the trial
court would have denied suppression of the blood draw before it subsequently granted
suppression based solely on the Villareal case). In the event the Court finds the trial court did err
in this respect, the blood-draw evidence Appellant fought to suppress would be one more factor
contributing to the already overwhelming evidence of Appellant’s guilt.



                                                24
Appellant had been so intoxicated that he had lost the normal use of his mental

faculties when Appellant drove and parked his vehicle on the tracks (id. at 107

(State: “Do you have an opinion as to whether or not he lost [the normal use of his

mental faculties]?”…. Flugrath: “I don’t believe a normal person would park their

car that close to a railroad track without any type of vehicle difficulty….”).

      Though Appellant fails to specify which testimonial statements should have

been suppressed, even absent any of his testimonial statements, in light of the

overwhelming evidence of Appellant’s guilt, the jury’s verdict would have been

the same. For all of the foregoing reasons, the Court should reject Appellant’s

second point of error.



    The Evidence Was Legally Sufficient to Convict Appellant of
           Operating a Motor Vehicle in a Public Place

                             Summary of the Argument

      In points of error three through five, Appellant claims the evidence was

legally insufficient to show that he operated a motor vehicle in a public place

without the normal use of his faculties. However, the overwhelming evidence –

and reasonable inferences from that evidence – easily allowed the jury to conclude

that Appellant was guilty of Driving While Intoxicated. Because it cannot be said




                                          25
that no reasonable jury would have convicted Appellant based on the evidence at

trial, the Court should affirm Appellant’s conviction.


                         Legal Sufficiency Standard of Review

       After the decision of the Court of Criminal Appeals in Brooks v. State, Texas

appellate courts review legal and factual sufficiency challenges in criminal cases

using the same legal sufficiency standard of review. Kiffe v. State, 361 S.W.3d 104,

107 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Ervin v. State, 331

S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)). Evidence is only

insufficient if, when considering all the evidence in the light most favorable to the

verdict, “no rational factfinder could have found each essential element of the

charged offense beyond a reasonable doubt.” Id.7 (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)).

       When reviewing the legal sufficiency of the evidence, a reviewing court

“considers all evidence in the record of the trial, whether it was admissible or

inadmissible.” Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013),

reh’g denied (Apr. 17, 2013). Courts will treat direct and circumstantial evidence

equally. Kiffe, 361 S.W.3d at 108. “[D]irect evidence of a fact, standing alone and

7
  When viewing the evidence in the light most favorable to the verdict, evidence can be
insufficient in two circumstances: when the record contains “no evidence, or merely a
‘modicum’ of evidence, probative of an element of the offense” or when “the evidence
conclusively establishes a reasonable doubt.” Id. The evidence may also be insufficient when the
acts alleged do not constitute the offense charged. Id. at 108.
                                              26
if believed by the jury, is always… sufficient to prove that fact.” Cortez v. State,

08-02-00363-CR, 2004 WL 178587, at *3 (Tex. App.—El Paso Jan. 29, 2004, pet.

ref’d) (citing Goodman v. State, 66 S.W.3d 283, 286 (Tex. Crim. App. 2001)).

Furthermore, “[c]ircumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Rockwell v. State, AP-76,737, 2013 WL 6529575, at

*1 (Tex. Crim. App. Dec. 11, 2013) (not designated for publication) (citing Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)), cert. denied, 134 S. Ct. 2724

(2014).

      Legal sufficiency review “gives full play to the responsibility of the trier of

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.

Each fact in isolation need not establish the guilt of the accused. Roberson v. State,

16 S.W.3d 156, 164 (Tex. App.—Austin 2000, pet. ref’d). Reviewing courts will

determine whether the necessary inferences are reasonable based on the “combined

and cumulative force of the evidence when viewed in the light most favorable to

the verdict.” Kiffe, 361 S.W.3d at 108. Appellate courts will presume that the

factfinder “resolved any conflicting inferences in favor of the verdict” and defer to

that resolution. Id. The reviewing courts will also defer to “the factfinder’s

evaluation of the credibility and the weight of the evidence.” Id. The factfinder is


                                         27
entitled to accept some testimony and reject other testimony, in whole or in part.

Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), abrogated on

other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009); see also

Roberson, 16 S.W.3d at 164 (factfinder may accept or reject any or all evidence

presented by either party).

      Ultimately, the reviewing court is not to determine “whether it believes that

the evidence at the trial established guilt beyond a reasonable doubt,” but whether

“after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson, 443 U.S. at 318-19 (emphasis in original).

Accordingly, “the verdict will be sustained if there is any evidence which, if

believed, shows the guilt of the accused.” Brown v. State, 649 S.W.2d 160, 163

(Tex. App.—Austin 1983, no pet.).



                                    Argument

      Appellant contends there was legally insufficient evidence to show

Appellant operated a motor vehicle in a public place while intoxicated. Although

Appellant breaks his argument up into three separate points of error, because the

cumulative evidence to support each element is largely duplicative, the State will




                                        28
answer points of error three through five in the same section to avoid excessive

repetition.

      Appellant points out that officers did not personally see Appellant driving on

a public road while he was intoxicated. Brief for Appellant at 27. Notably, Tucker

did observe him turn the vehicle off after he woke Appellant (IV R.R. at 64).

Regardless, the fact that an officer may not have personally observed every

element of the offense does not render the evidence legally insufficient. See

Rockwell, 2013 WL 6529575, at *1 (“circumstantial evidence alone can be

sufficient to establish guilt”); Kirsch v. State, 357 S.W.3d 645, 650-51 (Tex. Crim.

App. 2012) (the Court of Criminal Appeals has concluded that “a person ‘operates’

a vehicle when ‘the totality of the circumstances [] demonstrate that the defendant

took action to affect the functioning of his vehicle in a manner that would enable

the vehicle’s use”).

      In Priego v. State, the appellant testified that after she obtained two whiskey

bottles from another person, she drove to the parking lot of C W Ford Rentals near

a dumpster. 457 S.W.3d 565, 567 (Tex. App.—Texarkana 2015), petition for

discretionary review refused (June 3, 2015). The appellant claimed she consumed

one bottle while the truck was in the parking lot, threw it in the dumpster, and

began drinking from the second bottle until she lost consciousness. Id.




                                        29
      A manager of the rental company noticed the appellant’s truck in the

otherwise empty parking lot. Id. When he approached and knocked on her window,

the appellant was unresponsive. Id. When no one could wake the appellant, she

was eventually transported to a hospital where her blood was drawn. Id. at 568. No

field sobriety tests were administered. Id. n.3. The manager “never saw [the

appellant] actually drive the truck, which was parked straight in the parking lot.”

Id. at 568.

      After the appellant’s conviction, she contested the legal sufficiency of the

evidence that she had operated her vehicle while intoxicated. Id. at 569. She

contended that “she did not consume any alcohol before she parked her truck in the

parking lot of C W Ford Rentals and that there is no direct or circumstant ial

evidence which would enable a reasonable fact-finder to determine otherwise.” Id.

      Among other facts, the court of appeals observed that there was no evidence

in the record suggesting anyone else had operated the appellant’s vehicle. Id. at

570. The appellant’s car had been parked in the lot for around an hour when the

officer was first dispatched to the scene. Id. A partially consumed whiskey bottle

was found on the truck’s floorboard, and the appellant smelled strongly of alcohol.

Id. Although the gear selector was in “park,” the engine was running and the

appellant was still wearing her seatbelt. Id. Despite the fact that there was no direct

evidence that the appellant “became intoxicated prior to or during the time she was


                                          30
driving the truck, the jury could reasonably infer that she was operating her truck

while intoxicated.” Id. Considering the evidence in the light most favorable to the

verdict, the court of appeals found the evidence legally sufficient. Id. at 571.

       In Appellant’s case, there was extensive evidence that Appellant was highly

intoxicated while operating his vehicle in a public place. Statement of facts, supra

(at 2-7). While in Priego there was no evidence anyone else had operated the

appellant’s vehicle, in the instant case Appellant admitted that no one else was in

the vehicle with him and that he was driving (IV R.R. at 92). At 11:48:33 p.m.,

Appellant stated it was “about 11:30 now,” and that he had driven from his friend’s

house around “10:30” – around one hour earlier, just as in Priego (State’s Ex. 3-A

at 11:48:33; see also State’s Ex. 2 at 11:29:50 (Tucker arrives at the scene)).

Further mirroring Priego, a partially consumed liquor bottle was found in

Appellant’s floorboard (IV R.R. at 63). Appellant’s gear selector was in “park,” the

engine was running, and Appellant was sitting in the driver’s seat and slumped

over the center console, sound asleep. 8 Compare with Priego, 457 S.W.3d at 570.

8
  Appellant contrasts the particular facts constituting legally sufficient evidence in other cases
with the facts in his case. Brief for Appellant at 28 (e.g. “There is no evidence of the vehicle’s
transmission being engaged, as in Dornbusch v. State”); but see Priego, 457 S.W.3d at 570
(gearshift in “park”); Hearne v. State, 80 S.W.3d 677, 679 (Tex. App.—Houston [1st Dist.]
2002, no pet.) (gearshift in “park”). In any event, Appellant conflates sufficiency with necessity
– although a given fact may help constitute legally sufficient evidence in one case, it is not
thereafter required to be proved in every subsequent case. Cf. Tanner, 228 S.W.3d at 858 (citing
Ornelas v. U.S., 517 U.S. 690, 698 (1996) (warning that in the context of reasonable suspicion
determinations, courts should avoid comparing the individual facts in one case to the treatment
of similar facts in other cases).


                                               31
      Additionally, whereas the appellant in Priego never underwent field sobriety

tests, video of Appellant’s various attempts and refusals to complete such tests

were in evidence before the jury. See Statement of Facts, supra (e.g., State’s Ex. 3-

A at 11:58:50 (Appellant refused to perform one-legged stand because he could not

balance without 200-pound weights on his shoulders)). While the appellant in

Priego claimed that she only drank in the parking lot – and further argued there

was nothing in evidence to the contrary – Appellant admitted to drinking at his

friend’s house before driving to the railroad track (State’s Ex. 3-A at 11:50:55

(when asked how much he had to drink there, Appellant replied “enough”)).

Furthermore, in addition to his slurred speech and demeanor, jurors could watch

Appellant’s various apologies and admissions of culpability. Statement of Facts,

supra (e.g., State’s Ex. 2 at 11:40:24 (Appellant said he’d had “[t]oo much” to

drink); id. at 11:44:13 (“I know I messed up. I apologize.”); State’s Ex. 3-A at

11:47:48 (“I know I’m in trouble” and “I’m the worst”)). This evidence – over and

above that found sufficient by the Texarkana court of appeals – must also be

considered in light of the most profound circumstance elevating Appellant’s case

over Priego: whereas Priego parked her vehicle “straight in [a] parking lot,”

Appellant parked his Cadillac on an active railroad track.

      The jury could reasonably infer that when Appellant drove to and parked his

Cadillac on the active railroad track, he had lost the normal use of his mental


                                         32
faculties. Cf. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010)

(“Being intoxicated at the scene of a traffic accident in which the actor was a driver

is some circumstantial evidence that the actor’s intoxication caused the accident,

and the inference of causation is even stronger when the accident is a one-car

collision with an inanimate object”). Parking in such circumstances could lead to

two inferences – either the Appellant had lost the normal use of his mental

faculties when he drove and parked there, or he was suicidal. See II R.R. at 55

(where Appellant tried to argue during the pretrial motion to suppress that it may

have been a suicide attempt). However, when Officer Tucker pointed out that if a

train had come, Appellant probably would have been killed, Appellant stated “I

didn’t want that” (State’s Ex. 2 at 11:40:20). See also State’s Ex. 3-A (“Apparently

I made a mistake because if I was on a railroad track I apologize.”).

      Accordingly, given the totality of the evidence at trial, the jury made what

was the only reasonable inference: that Appellant – by virtue of his intoxication –

had lost the normal use of his mental faculties when he drove and parked his

Cadillac on the train tracks before passing out. When viewing the combined and

cumulative force of the evidence in the light most favorable to the prosecution, it

cannot be said that the factfinder’s inferences were not reasonable.

      Appellant also contends the evidence was legally insufficient to prove he

operated his vehicle in a “public place;” he claims the allegedly “private” railroad


                                         33
easement does not qualify. Brief for Appellant at 30. However, as mentioned

supra, the jury could reasonably infer that Appellant operated his vehicle in

another public place: he drove on the public road from which he reached the

railway easement. As the State observed during the hearing on the motion to

suppress, “unless [Appellant] has some magic trick, he had to drive to that spot. So

he was on public roadways to get there” (II R.R. at 56).

      Moreover, even if the evidence only showed Appellant had driven on the

“private railway easement,” several of Appellant’s cited cases demonstrate this

falls under the “public place” definition. Appellant cites Shaub v. State, observing

that “[i]n determining whether a place is public, the relevant inquiry is whether the

public has access to it.” Brief for Appellant at 29 (citing 99 S.W.3d 253, 256 (Tex.

App.—Fort Worth 2003, no pet.). The public has access to several locations which

are privately owned; this fact is readily apparent in the Penal Code’s definition of

“public place.”

      As defined in the Penal Code, a “public place” means “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. Pen.

Code Ann. § 1.07(a)(40) (West, Westlaw through 2015 R.S.) (emphasis added).

The emphasized examples are privately owned, yet nevertheless classified as


                                         34
“public places.” Indeed, in Appellant’s cited case Shaub v. State, the “public place”

at issue appears to have been a privately leased marina. See 99 S.W.3d at 255.

Appellant cites several similar cases involving privately owned areas – some of

which involved restricted access – which were nevertheless classified as “public

places.” Appellant observes several such fact patterns on page 30 of his brief; he

explicitly notes of one of them that:

      The manager of the complex testified that the entire complex was
      surrounded by a metal fence, that the complex had between 200 and
      300 residents, and that the parking lot was a common area for the
      complex. When a resident moved into the complex, the resident
      received a “gate card” which would electronically trigger the gate.

Brief for Appellant at 30 (citing Holloman v. State, 11-95-275-CR, 1995 WL

17212433, at *1 (Tex. App.—Eastland Dec. 21, 1995, pet. ref’d) (not designated

for publication) (the court found said location to be a “public place” for purposes

of § 49.04 of the Texas Penal Code)).

      Appellant nevertheless tries to distinguish his case, asserting that the record

is “devoid of testimony that would reasonably support a finding that the private

railway easement away from the roadway was plainly open to the public.” Id.

Appellant’s assertion is flatly incorrect. First, State’s Exhibit 2 clearly shows

Appellant’s vehicle located around 20 feet off the public roadway (State’s Ex. 2 at

11:29:50). The jury could see for itself that there were no fences or other

obstructions; Appellant had merely pulled of the road a few steps behind his


                                         35
vehicle. Id.9 Second, there was explicit testimony at trial that the railroad was a

“public place:”

       State:         “Is … the railroad a public place?”

       Tucker:        “Yes ma’am, it is.”

(IV R.R. at 60).

The State belabored the point a short while later:

       State:         “…it was your judgment call, your opinion, that this private
                      Union Pacific property was a public place. …. Union Pacific
                      easement was a public place?”

       Tucker:        “Yes.”


(id. at 70). The State actually had Officer Tucker explain that private property

could be a public place (id. at 74-76 (Tucker: “If you can walk there without any

barriers or no trespassing signs, it’s usually a public place” State: “So is that

railroad track off FM 306 considered a public place?” Tucker: “Yes, ma’am, it

is.”)). For all the foregoing reasons, the Court should find the evidence was legally

sufficient to support the jury’s finding that Appellant operated his vehicle in a

public place while he was intoxicated. Because it cannot be said that no rational
9
  Appellant’s comparison to Fowler – where the appellant was on a gated (albeit open) unpaved
private residence’s driveway ¼ mile from a country road – is therefore inapposite. Fowler v.
State, 65 S.W.3d 116, 117 (Tex. App.—Amarillo 2001, no pet.). The only testimony in Fowler
that the road was a “public place” was struck from the record. Id. at 119. Additionally, unlike
Fowler, in the instant case Appellant stated on video that he had left his friend’s house around
10:30 p.m. after drinking, and that he remembered driving over the railroad crossing. Statement
of Facts, supra.



                                              36
trier of fact could have found Appellant guilty – particularly in light of the

combined and cumulative force of the overwhelming evidence in this case – the

Court should defer to the jury’s determination and affirm the judgment of the trial

court. See Jackson, 443 U.S. at 318-19.



Appellant’s Sentence Did Not Violate the Constitutional P rohibition
                on Cruel and Unusual Punishment
                            Summary of the Argument

      Appellant argues his life sentence was grossly disproportional and

constitutes cruel and unusual punishment. However, in light of the fact that several

other cases – which Appellant acknowledges in his brief – have upheld such

sentences in similar circumstances, and because Appellant presents no novel

arguments or compelling reasons for the Court to ignore such precedents, his final

point of error should likewise be rejected.


                                Facts at Punishment

      As the State showed in the punishment phase of Appellant’s trial, Appellant

had an extensive, serious and potentially deadly problem with alcohol. Appellant’s

sister testified on his behalf at the punishment phase (V R.R. at 50). On cross -

examination, she admitted Appellant completely lacked self-discipline (id. at 54).

She acknowledged he had a “severe” alcohol problem (id.). She recognized the

                                          37
severity of his problem despite the fact that she was not aware the instant case was

his sixth DWI conviction (id.). Appellant’s sister further acknowledged that the

State’s repeated attempts to rehabilitate her brother had failed (id. at 55). She did

not seem to be aware of the fact that he was on parole when he picked up his fifth

DWI (id. at 56). She did recognize that Appellant’s “supportive” family had never

been enough to keep Appellant from re-offending (id. at 56-57). Appellant’s sister

apparently had not been told that he was parked on a train track for his latest DWI;

when confronted with that information, she clearly had additional reservations

about Appellant (id. at 58). Appellant’s sister further acknowledged that Appellant

had endangered his own life and the life of others on each of the six occasions for

which he was convicted of driving while intoxicated (id. at 59). Ultimately,

although she wished to help her brother, Appellant’s sister had to admit that when

her oldest daughter turned 16, she would want her to be safe from people like

Appellant (id. at 59-60).

                                     Argument

      Appellant acknowledges that his final point of error – that his sentence is

grossly disproportionate and constitutes cruel and unusual punishment – has been

rejected by the Third Court of Appeals and other courts. Brief for Appellant at 34-

35. In Davidson v. State, the Court expressly observed that a sentence of life

imprisonment in the context of cases such as Appellant’s is not disproportionate.


                                         38
See 03-13-00708-CR, 2014 WL 3809813, at *1 (Tex. App.—Austin Aug. 1, 2014,

no pet.) (not designated for publication). In Davidson, the Court observed that

“[b]ased on [the appellant’s] repeated commission of the offense of driving while

intoxicated, a dangerous offense that placed her life and the lives of others in

jeopardy, we could not conclude that a sentence of life imprisonment was grossly

disproportionate to the offense so as to constitute cruel and unusual punishment.”

Id. The Court further noted that “[i]t is well established that a sentence of life

imprisonment or of similar length is not grossly disproportionate to a felony

offense that is committed by a habitual offender, even when the felony is not

inherently violent in nature.” Id. (citing Rummel v. Estelle, 445 U.S. 263, 284-85

(1980)); see also Pryor v. State, 03-13-00347-CR, 2015 WL 2066228, at *5 (Tex.

App.—Austin May 1, 2015) (not designated for publication), petition for

discretionary review filed (Aug. 6, 2015) (where the Court noted under the

“certainty of punishment” factor of its harmless error analysis that – given that

appellant’s history of DWI’s – the jury would have assessed the maximum

sentence in any event).

      Appellant provides no new argument to support his point of error beyond his

bare assertion that a life sentence is grossly disproportionate. Brief for Appellant at

35; see also supra (at 21 n.5). In light of the above, including Appellant’s repeated

violations, his endangerment of himself and others, and caselaw Appellant


                                          39
acknowledges in his brief (Brief for Appellant at 34-35), any further historical

analysis should be unnecessary. See Davidson, 2014 WL 3809813. However, in the

event it interests the Court, the remainder of the instant brief – adapted from a

colleague’s – will trace some of the developments in caselaw related to the Eighth

Amendment. Otherwise, for the foregoing reasons, Appellant’s conviction should

be, in all things, affirmed.



 Appellant’s Sentence Is Consistent With Historical Developments in Eighth
                          Amendment Case Law.

                       United States Supreme Court Precedent

      The United States Supreme Court has decided several cases determining

whether the length of a non-capital prison sentence is properly subject to review in

the context of the Eighth Amendment. Those cases cover both sentences that were

assessed for a single offense as well as those assessed as part of a habitual offender

statute. The Supreme Court itself has indicated that its decisions have been far

from clear. While somewhat lengthy, the following summary will set out the facts

and holdings of the Supreme Court’s cases and provide additional support for the

determination that Appellant’s sentence does not violate the Eighth Amendment.

      In Graham v. West Virginia, 224 U.S. 616 (1912), the facts reflected that, in

1898, the defendant had been convicted of stealing a horse valued at $50. Three

years later, in 1901, he had been convicted of entering a stable in order to steal a
                                         40
horse valued at $100. Finally, in 1907, the defendant was convicted of stealing a

horse valued at $75 and various tack and accessories valued at $85.             Upon

conviction for that last crime, the defendant was sentenced to a term of life

imprisonment as mandated by West Virginia’s recidivist statute.

       On appeal, the defendant claimed that cruel and unusual punishment had

been inflicted upon him. In response, the United States Supreme Court noted,

“The propriety of inflicting severer punishment upon old offenders has long been

recognized in this country and in England. They are not punished the second time

for the earlier offense, but the repetition of criminal conduct aggravates their guilt

and justifies heavier penalties when they are again convicted.” Graham v. West

Virginia, 224 U.S. 616 at 623. Without any discussion of factors such as the

severity of the offense or the possibility of parole, the Supreme Court concluded

that it could not be maintained that cruel and unusual punishment had been

inflicted. Id. at 631.

       In Rummel v. Estelle, 445 U.S. 263 (U.S. 1980), the defendant had been

charged in 1964 with fraudulent use of a credit card to obtain $80 worth of goods

or services, a felony punishable by imprisonment for not less than two nor more

than ten years. The defendant pled guilty and was sentenced to three years’

confinement. In 1969, the defendant was charged with passing a forged check in

the amount of $28.36, a felony punishable by imprisonment for not less than two


                                         41
nor more than five years. The defendant also pled guilty to that offense and was

sentenced to four years’ imprisonment. Finally, in 1973, the defendant was charged

with obtaining $120.75 by false pretenses, a felony punishable by confinement for

not less than two nor more than ten years. However, the defendant was prosecuted

under Texas’ repeat offender statute and his two prior convictions were alleged in

the indictment. A jury convicted the defendant of felony theft and also found the

allegations that he had been convicted of two prior felonies were true. As a result,

the trial court imposed a life sentence upon the defendant as mandated by law.

On appeal, the defendant argued that a sentence of life imprisonment was “grossly

disproportionate” to the three felonies that formed the predicate for his sentence

and, therefore, his sentence violated the Eighth Amendment’s ban on cruel and

unusual punishments. Eventually, the defendant’s case reached the United States

Supreme Court on certiorari. Rummel v. Estelle, 445 U.S. 263 at 265. Addressing

the defendant’s claim that the absence of violence in his crimes should militate

against the imposition of such a severe sentence, the United States Supreme Court

rejected that proposition by stating, “But the presence or absence of violence does

not always affect the strength of society’s interest in deterring a particular crime or

in punishing a particular criminal.” Id. at 275.      The Court also found that the

interest of the State of Texas in the case was not simply the punishment of the

unlawful acquisition of another person’s property. The Court recognized that there


                                          42
was an additional interest, expressed in all recidivist statutes, in dealing more

harshly with those who, by repeated criminal acts, have shown that they are simply

incapable living as law-abiding citizens. Id. at 276. The Supreme Court also noted

that Texas had a relatively liberal policy of granting “good time” credits to its

prisoners, a policy that had historically allowed a prisoner serving a life sentence to

become eligible for parole in as little as 12 years. In light of such policies, the

Court recognized that a proper assessment of Texas’ treatment of the defendant

could hardly ignore the possibility that he would not actually be imprisoned for the

rest of his life. Id. at 280. Finally, the Court noted that, even if the sentence

imposed on the defendant was the most severe sentence found in any of the states,

such fact would not necessarily make the defendant’s sentence grossly

disproportionate to his offenses. Id. at 282. The Court also clearly recognized that

the Texas Legislature was entitled to make its own judgments on what sentences

should be imposed for different crimes. Id. at 284. The Supreme Court then held

that the mandatory life sentence imposed upon the defendant did not constitute

cruel and unusual punishment under the Eighth Amendment.

      In Hutto v. Davis, 454 U.S. 370 (U.S. 1982), officers had tape-recorded a

transaction in which the defendant had sold marijuana and other controlled

substances to a police informant. Several days later, on October 26, 1973, law

enforcement officers raided the defendant’s home and seized approximately nine


                                          43
ounces of marijuana and assorted drug paraphernalia.          The defendant was

convicted in a Virginia state court for possession with intent to distribute and

distribution of marijuana. The jury imposed a prison term of 20 years and a fine of

$10,000 on each of the two counts and the prison terms were ordered to run

consecutively. Id. at 370-371.

      The defendant filed a writ of habeas corpus asserting that a 40-year sentence

was so grossly disproportionate to the crime of possessing less than nine ounces of

marijuana that it constituted cruel and unusual punishment as proscribed by the

Eighth Amendment. The District Court relied primarily upon the four factors set

forth in Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973) to analyze the defendant’s

claim. Hutto v. Davis, 454 U.S. 370 at 371. Applying the first Hart factor to the

case, the District Court found “no element of violence and minimal, debatable

danger to the person.” On Hart's second factor, which called for an examination of

the purposes behind the criminal statute and the existence of less restrictive means

of effectuating those purposes, the District Court was inconclusive, but noted that

the amount of marijuana involved was less than nine ounces, implying that such

minimal possession could adequately be deterred with shorter prison sentences.

Applying the third Hart factor, the District Court found that defendant’s sentence

for possession with intent to distribute exceeded the maximum penalty available

for that offense in all but four States, and that his sentence for distribution


                                        44
exceeded the maximum penalty available for that offense in all but eight States.

Finally, under the fourth Hart factor, the District Court concluded that the

defendant’s sentence was disproportionate when compared to punishments

applicable to other offenses under Virginia law. Id. at 373. Based on that analysis,

the District Court granted the defendant’s writ. Id. at 371. The District Court’s

decision was subsequently upheld by the United States Court of Appeals for the

Fourth Circuit. Id. at 372.

      The United States Supreme Court granted certiorari and addressed the

application of the Hart factors by the lower courts. See Hutto v. Davis, 454 U.S.

370 (U.S. 1982). The Court specifically found that it had rejected each of the Hart

factors in its opinion in Rummel. Addressing the application of the first Hart

factor, the Supreme Court noted that, in Rummel, it had held that the presence or

absence of violence did not always affect the strength of society’s interest in

deterring a particular crime or in punishing a particular criminal. The Court then

found that the application of the second Hart factor had been implicitly rejected in

Rummel by its conclusion that the amount of money taken was not relevant,

because to have acknowledged that the State could have given the defendant a life

sentence for stealing some amount of money would have conceded that the lines to

be drawn were subjective and therefore properly determined by legislatures instead

of the courts. Addressing application of the third Hart factor, the Court noted that


                                        45
it had rejected such comparisons in Rummel when it found that, absent a

constitutionally imposed uniformity contrary to traditional notions of federalism,

some State would always bear the distinction of treating particular offenders more

severely than any other State. Finally, the Court found that it had rejected the

application of the fourth Hart factor in Rummel because other crimes implicated

other societal interests, making such a comparison inherently speculative. Id. at

373. After specifically disavowing the application of each of the Hart factors, the

Supreme Court stated, “Rummel stands for the proposition that federal courts

should be ‘[reluctant] to review legislatively mandated terms of imprisonment,’

and that ‘successful challenges to the proportionality of particular sentences’

should be ‘exceedingly rare.’” The Court also stated, “By affirming the District

Court decision after our decision in Rummel, the Court of Appeals sanctioned an

intrusion into the basic linedrawing process that is ‘properly within the province of

legislatures, not courts.’” In reversing the Fourth Circuit Court of Appeals, the

Supreme Court concluded with a stern warning that lower federal courts were

required to follow its precedent no matter how misguided the judges of those

courts thought it to be. Id. at 374.

      In Solem v. Helm, 463 U.S. 277 (U.S. 1983), the facts reflected that in 1964,

1966 and 1969, the defendant had been convicted of third-degree burglary. In

1972, he was convicted of obtaining money under false pretenses. In 1973, the


                                         46
defendant was convicted of grand larceny. And, in 1975, he was convicted of

third-offense driving while intoxicated. Thus, by 1975, the State of South Dakota

had convicted the defendant of six nonviolent felonies.         Then, in 1979, the

defendant was charged with uttering a “no account” check for $100.               The

defendant pled guilty and was sentenced to a term of life imprisonment under the

South Dakota repeat offender statute. Under South Dakota’s laws, a person

sentenced to life imprisonment was not eligible for parole. Id. at 279-282.

      The defendant subsequently filed for a writ of habeas corpus arguing that his

sentence constituted cruel and unusual punishment under the Eighth Amendment

and his case reached the United States Supreme Court on certiorari. Solem v. Helm,

463 U.S. 277 at 283-284. Addressing the defendant’s claim, the Supreme Court

held that, as a matter of principle, a criminal sentence must be proportionate to the

crime for which the defendant had been convicted. The Court recognized that

reviewing courts should grant substantial deference to the broad authority that

legislatures necessarily possess in determining the types and limits of punishments

for crimes, as well as to the discretion that trial courts possess in sentencing

convicted criminals. The Supreme Court also specifically indicated that it was not

adopting or implying approval of a general rule of appellate review of sentences.

The Court stated, “Absent specific authority, it is not the role of an appellate court

to substitute its judgment for that of the sentencing court as to the appropriateness


                                         47
of a particular sentence; rather, in applying the Eighth Amendment the appellate

court decides only whether the sentence under review is within constitutional

limits.” The Court added, “In view of the substantial deference that must be

accorded legislatures and sentencing courts, a reviewing court rarely will be

required to engage in extended analysis to determine that a sentence is not

constitutionally disproportionate.” Id. at 291.

      However, the Supreme Court then stated, “When sentences are reviewed

under the Eighth Amendment, courts should be guided by objective factors that our

cases have recognized.” Then, the Court instructed that courts should look to the

gravity of the offense and the harshness of the penalty. Addressing that factor, the

Court specifically found that nonviolent crimes were less serious than crimes

marked by violence or the threat of violence. As a second factor, the Court

indicated that it might be helpful to compare the sentences imposed on other

criminals in the same jurisdiction. The Court noted that it would be some

indication that the punishment at issue might be excessive if more serious crimes

were subject to the same or lesser penalties. Finally, the Court indicated that

courts might find it useful to compare the sentences imposed for commission of the

same crime in other jurisdictions. The Court summarized its holding by stating, “In

sum, a court’s proportionality analysis under the Eighth Amendment should be

guided by objective criteria, including (i) the gravity of the offense and the


                                         48
harshness of the penalty; (ii) the sentences imposed on other criminals in the same

jurisdiction; and (iii) the sentences imposed for commission of the same crime in

other jurisdictions.” Solem v. Helm, 463 U.S. 277 at 291-292.

      Applying the factors it had set out, the Supreme Court referred to the

defendant’s crime as “one of the most passive felonies a person could commit.”

The Court also found that the defendant’s prior offenses, although classified as

felonies, were all relatively minor, all were nonviolent, and none was a crime

against a person. Solem v. Helm, 463 U.S. 277 at 296. After reviewing all of the

factors, the Supreme Court concluded that the defendant’s sentence was

significantly disproportionate to his crime, and was therefore prohibited by the

Eighth Amendment. Id. at 303.

      It is notable that the three factors endorsed in by the Supreme Court in Solem

are the first, third and fourth factors of Hart test that the Court had so vehemently

disavowed in Hutto v. Davis as being contrary to the precedent established in

Rummel. Indeed, the Supreme Court chastised the Fourth Circuit’s application of

those factors after its decision in Rummel by stating that the Fourth Circuit could

be viewed as having ignored, consciously or unconsciously, the hierarchy of the

federal court system created by the constitution and Congress. Then, less than a

year later, the Court seems to have done the same thing that led to the Fourth

Circuit’s reprimand. However, despite the obvious inconsistency in its opinions,


                                         49
the Court did not overrule Hutto v. Davis and specifically refused to overrule

Rummel. Solem v. Helm, 463 U.S. 277 at 303.

       In Harmelin v. Michigan, 501 U.S. 957 (U.S. 1991), the defendant was

convicted of possessing 672 grams of cocaine and sentenced to a mandatory term

of life in prison without possibility of parole. The defendant appealed, claiming

that his sentence constituted cruel and unusual punishment in violation of the

Eighth Amendment. His case eventually reached the United States Supreme Court

on certiorari. Id. at 961.

       Addressing the defendant’s claim, the United States Supreme Court issued

numerous opinions. In an opinion joined by the Chief Justice, Justice Scalia found

that the defendant’s sentence could not be considered unconstitutionally

disproportional because the Eighth Amendment contained no proportionality

guarantee. Justice Scalia also determined that Solem was wrongly decided and

completely rejected its analysis. Harmelin v. Michigan, 501 U.S. 957 at 962-994.

Justice Kennedy was joined by Justices O’Connor and Souter in his opinion.

Contrary to Justice Scalia’s opinion, Justice Kennedy found that the Eighth

Amendment does forbid sentences that are “grossly disproportionate.” Id. at 997.

However, he specifically wrote, “The Eighth Amendment does not require strict

proportionality between crime and sentence. Rather, it forbids only extreme

sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1001. Justice


                                       50
Kennedy specifically held that the second and third factors from Solem, the

sentences imposed on other criminals in the same jurisdiction and the sentences

imposed for commission of the same crime in other jurisdictions, should only be

considered in the rare case when a threshold comparison of the crime committed

and the sentence imposed led to an inference that the sentence was grossly

disproportionate. He then weighed the defendant’s crime of possession of over

650 grams of cocaine against his punishment of life in prison without parole and

concluded that the defendant’s sentence was not grossly disproportionate to the

underlying crime. Consequently, Justice Kennedy found it unnecessary to proceed

to the additional steps of the Solem analysis. Id. at 1005.        Finally, the four

remaining justices in Harmelin dissented and issued three separate opinions.

However, all of the dissenting justices did agree with Justice White, who argued

for the continued application of the full three-pronged Solem test. Id. at 1008-1009.

      In Ewing v. California, 538 U.S. 11 (2003), one of the more recent Supreme

Court cases addressing proportionality in non-capital sentencing, the Court held the

California three strikes law was constitutional and concluded that a sentence of

twenty-five years to life for felony grand theft did not violate the Eighth

Amendment. In deciding the case, the Supreme Court employed the threshold

analysis provided by Justice Kennedy in Harmelin to decide that the sentence was

not grossly disproportionate to the crime. Id. at 23-24. The Court considered the


                                         51
specific circumstances of the case, including the defendant’s criminal history, the

discretion allotted to the sentencing judge and the prosecutor in deciding how to

charge the defendant under the statute, and the state’s interest in protecting its

citizens from repeat offenders. Based on those factors, the Court decided in its

initial inquiry that the sentence imposed was not grossly disproportionate to the

offense committed. And, because the Court did not find the sentence was grossly

disproportionate after its initial inquiry, the Court found it unnecessary to conduct

the inter-and intra-jurisdictional analyses from Solem. Id. at 25-31.



                              Fifth Circuit Precedent

      In McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992), the defendant, in

1954, was found guilty of two counts of armed robbery and sentenced to serve two

to nine years. In 1957, he was found guilty of burglary and larceny and sentenced

to serve from one to ten years, running concurrently with his earlier sentence. The

defendant was also sentenced in 1957, to another concurrent term of four to eight

years for escape from a penitentiary. In 1964, he was found guilty of armed

robbery and given three to ten years. Finally, in 1983, the defendant was convicted

by a jury in Harrison County, Mississippi, for the burglary of an automobile,

specifically for stealing twenty cases of beer from a delivery truck. The defendant

had been indicted as a habitual offender under the Mississippi Code. After a


                                         52
sentencing hearing where the defendant’s record of prior felony convictions was

established, he was sentenced, as a habitual offender, to life in prison without

parole. Id. at 314.

      On appeal, the defendant alleged that his sentence was unconstitutionally

disproportionate. McGruder v. Puckett, 954 F.2d 313 at 315. Addressing that

argument, the Fifth Circuit noted the framework of objective factors adopted by the

Supreme Court in Solem. However, the Court also noted that Solem must be

viewed in the light of the Supreme Court’s decision in Harmelin v. Michigan. By

applying a head-count analysis, the Fifth Circuit found that seven members of the

Supreme Court supported a continued Eighth Amendment guaranty against

disproportional sentences. However, the Court recognized that only four justices

supported the continued application of all three factors in Solem while five justices

rejected the continued application of all five factors. The Court then stated, “Thus,

this much is clear: disproportionality survives; Solem does not.” Relying upon

Justice Kennedy’s opinion for guidance, the Court stated that it would initially

make a threshold comparison of the gravity of the defendant’s offenses against the

severity of his sentence. Then, only if the Court inferred that the defendant’s

sentence was grossly disproportionate to the offense would it then consider the

remaining factors of the Solem test and compare the sentence received to (1)




                                         53
sentences for similar crimes in the same jurisdiction and (2) sentences for the same

crime in other jurisdictions. Id. at 316.

      In making the threshold comparison of the gravity of the defendant’s

offenses against the severity of his sentence, the Court noted that the defendant had

been sentenced as a habitual offender. The Court recognized that, because he was

sentenced as a habitual offender, the defendant’s sentence was imposed to reflect

the seriousness not only of his most recent offense but also the seriousness of his

prior offenses. McGruder v. Puckett, 954 F.2d 313 at 316. In comparing the

gravity of the defendant’s offenses in relation to the harshness of his sentence, the

Fifth Circuit then referred to the Supreme Court’s decision in Rummel as a “handy

guide” to assist in the determination. After comparing the offenses and criminal

records of the defendants in each case, the Court found that, in the light of

Rummel, there could be no argument that the defendant’s sentence was not

disproportionate, much less grossly disproportionate, to his offense. Because the

Court did not find that the defendant’s sentence was grossly disproportionate to the

offense, it did not consider the remaining factors of the Solem test. Id. at 317.


                                   Texas Precedent

       Texas appellate court have followed and applied the Fifth Circuit’s

McGruder analysis in addressing Eighth Amendment proportionality complaints.

Under that analysis, Texas courts have initially made a threshold comparison of the
                                            54
gravity of the offense against the severity of the sentence.                If a court has

determined during that threshold comparison that the sentence is not grossly

disproportionate to the offense, they have uniformly refused to consider the

remaining Solem factors. See Jacobs v. State, 80 S.W.3d 631 (Tex.App.—Tyler

2002; no pet.).10

       In addition, in Whitehead v. State, 11-05-00179-CR, 2006 WL 3685230, at

*1 (Tex. App.—Eastland Dec. 14, 2006), review dismissed, PD-234-07, 2008 WL

1930673 (Tex. Crim. App. Apr. 30, 2008), one Texas appellate court addressed the

appeal of a habitual offender who was sentenced to life in prison for failure to

appear. In that case, a jury found the defendant guilty of the offense of bail

jumping and failure to appear. Also finding that the defendant had been finally

convicted of two prior felony offenses as alleged in the indictment, the jury

assessed his punishment at life imprisonment. On appeal, the defendant argued

that his life sentence violated the Eighth Amendment of the United States

Constitution.    Addressing that argument, the Eastland Court found that a life

sentence imposed under Texas habitual offender statutes does not constitute cruel


10
   See also Moore v. State, 54 S.W.3d 529, 542 (Tex.App.—Fort Worth 2001, pet. ref’d);
Bradfield v. State, 42 S.W.3d 350, 353 (Tex.App.—Eastland 2001, pet. ref'd); Hicks v. State, 15
S.W.3d 626, 632 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd); Dunn v. State, 997 S.W.2d
885, 891-92 (Tex. App.—Waco 1999, pet. ref'd); Jackson v. State, 989 S.W.2d 842, 845 (Tex.
App.—Texarkana 1999, no pet.); Mathews v. State, 918 S.W.2d 666, 669 (Tex.App.—Beaumont
1996, pet. ref'd); Puga v. State, 916 S.W.2d 547, 549-50 (Tex.App.—San Antonio 1996, no
pet.); Lackey v. State, 881 S.W.2d 418, 421 (Tex.App.—Dallas 1994, pet. ref'd).


                                             55
and unusual punishment in violation of the Eighth Amendment. The Court noted

that the defendant was relying primarily on the case of Solem v. Helm. However,

the Court found that Solem was distinguishable because the defendant in Solem

was sentenced to life with no possibility of parole, whereas the defendant was

eligible for parole. The Court then held that the defendant’s life sentence for

failure to appear did not violate the Eighth Amendment. See id.

      Another court of appeals has specifically found that Solem is no longer

controlling law. See Trevino v. State, 07-04-0066-CR, 2005 WL 1404037, at *5

(Tex. App.—Amarillo June 15, 2005, pet. ref'd) (not designated for publication).

Instead of applying the three Solem factors, the court has used the Fifth Circuit’s

McGruder analysis and, after determining that a sentence is not grossly

disproportionate to the offense, has refused to consider the remaining Solem

factors.

      As set out above, using Rummel as a “handy guide” as suggested by the Fifth

Circuit in McGruder, it is evident that, contrary to Appellant’s assertions, his

sentence is not unconstitutionally disproportionate. Appellant’s status as a habitual

offender (I Supp. C.R. at 4) means that his sentence is imposed to reflect the

seriousness not only of his most recent offense, but also the seriousness of his prior

offenses. In light of the catastrophic harm and loss of life Appellant could have

caused multiple times – to himself and to others – it cannot be said that the


                                         56
defendant’s sentence was disproportionate, much less grossly disproportionate, to

his offense.   Therefore, evaluation under the second and third Solem factors is

unnecessary and Appellant’s point of error should be denied, particularly in light of

recent similar cases recognizing such sentences do not constitute cruel and unusual

punishment. See Davidson, 2014 WL 3809813, at *1.




                                         57
                                       Prayer

       Wherefore, premises considered, Appellee respectfully prays that this

Honorable Court of Appeals affirm in all matters the judgment of the trial court in

this case. Alternatively, if the Court does not affirm the judgment of the trial court,

Appellee prays that the Court find the trial court erred in suppressing the evidence

from the warrantless blood draw based on Villareal. Appellee also prays for all

other relief, both special and general, in law and in equity, to which it may be

entitled.


                                                                JENNIFER THARP
                                                           Criminal District Attorney

                                                                                    By

                                                                /s/ Joshua D. Presley
                                                                  Joshua D. Presley
                                                                      SBN: 24088254
                                                          Assistant District Attorney
                                                    150 N. Seguin Avenue, Ste. #307
                                                        New Braunfels, Texas 78130
                                                             Phone: (830) 221-1300
                                                                Fax: (830) 608-2008
                                                      E-mail: preslj@co.comal.tx.us
                                                               Attorney for the State




                                          58
                              Certificate of Service

      I, Joshua D. Presley, Assistant District Attorney for the State of Texas,
Appellee, hereby certify that a true and correct copy of this Brief for the State has
been delivered to Appellant DAVID KENT THACKER, JR.’s attorney of record in
this matter:

      Gerald C. Moton
      motongerald32@gmail.com
      11765 West Avenue, PMB 248
      Austin, TX 78216
      Attorney for Appellant on Appeal

By electronically sending it through efile.txcourts.gov to the above-listed email
address, this the 8th day of September, 2015.
                                                                 /s/ Joshua D. Presley
                                                                   Joshua D. Presley

                           Certificate of Compliance

       I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate Procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 13,308
words or less within the portions of this brief required to be counted by Rule
9.4(i)(1) & (2) of the Texas Rules of Appellate Procedure.
       The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.

                                                                /s/ Joshua D. Presley
                                                                  Joshua D. Presley




                                         59
Appendix




   60
                                               NO. CR20 13-096
                                                                                •  .
                                                                                       .




   THE STATE OF TEXAS                                   § IN THE DISTRICT COURT OF
                                                        §
   vs.                                                  § COMAL COUNTY, TEXAS
                                                        §
   DAVID KENT THACKER, JR.                              §


                                                                                                                    ..
                                                                                                                    co

   TO THE HONORABLE JUDGE OF SAID COURT:

                NOW COMES DAVID KENT THACKER, JR., the Defendant in the above cause, and files

   this motion to reconsider it denial of Defendant's Motion to Suppress Blood Draw in view of Antonio

   Aviles v. The State of Texas, No. 04-11-00877-CR decided August 6, 2014.

                1.     In the original submission of Antonio Aviles v. The State of Texas, No. 04-11-00877-CR

   the Fourth Court of Appeals held the trial court did not err in denying appellant Antonio Aviles's motion to

   suppress the blood specimen drawn pursuant to section 724.012(b){3)(B) of the Texas Transportation Code.

   Aviles ''· State. 385 S.WJd 110. 116 (Tex. App.-San Antonio 2012). vacated. 134 S.Ct. 902 (2014).

   Relying upon       Beeman'~   State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002), we held section 724.012(b)(3)

   (B) permits a police officer to take a blood specimen from DWI suspect without a warrant if the officer has

   credible information that the suspect has been previously convicted on at least two prior occasions ofDWI.

   /d.

                Aviles sought review in the Texas Court of Criminal Appeals, but that court refused his petition.

   Thereafter, Aviles filed a petition for writ of certiorari in the United States Supreme Court. The

   Supreme Court granted the petition. vacated our judgment, and remanded the matter to us for further

   consideration in light of the Court's opinion in Missouri v. .~.\1cNee/y, 133 S.Ct. 1552 (2013). Aviles v.

   Texas, 134 S.Ct. 902, 902 (2014). After reviewing the denial of the motion to suppress in light of

   McNeely, in a published opinion the Fourth Court of Appeals reverse the trial court's judgment and

~5~JN~& ~~ Mlfue trial court for a new trial.
     ~if.~
         HEAlliER N. KELLAR

@        COMAL COUNTY
         DISTRr CLER~
         PAGE         oFf!._
                                                                                                                         ,
                                                                                                                         I
                                                                                                                         ~-
             2.        A copy of the published opinion in Antonio AVILES, v. The STATE of Texas, No. 04-11-

     00877-CR decided August 6, 2014 is affixed hereto and made apart hereof.


             WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this
     Honorable Court will grant this motion to reconsider it denial of Defendant's Motion to Suppress in all

     things, or in the alternative, that this Court will set this matter down for a hearing prior to trial on the

     merits and that at such hearing this Motion will be in all things granted.


                                                    Respectfully submitted,
                                                    Gerald C. Moton
                                                    11765 West Avenue, PMB 248
                                                    San Antonio. TX 78216
                                                    Tel: (210) 410-8153 '
                                                    Fax: (21 0) 568-4389
                                                    TXBN 145963      0 ./'
                                                             /




CERTIFIED TO BE ATRUE AND
CORRECT ,C9PY
     ~'if.~
        HEATHER N. KELLAR


0       COMAL COUNTY
        OISTR~CLERK~
       PAGE~ OF~
                                                                                  ~
                                                                                  \;jjfJJ



                                              CERTIFICATE OF SERVICE


              I hereby certify that a copy of the above and foregoing document was
      was    delivered to the District Attorney's Office, at the Comal County Courthouse Annex, 150 Seguin.

      New Braunfels, Texas 78130, on Thursday, August 14, 2014 by        h~elivery.
                                                                         /
                                                                     /
                                                     BY:____._7---~~-r---------
                                                          GERAL0 C. MOTO
                                                          STATE IfAR N0/4'596350

                                                       ORDER


              On~                    , 2014, came on to be beard Defendant's motion to reconsider it denial of

      Defendants Motion to Suppress, and after hearing same, the Court orders that the Motion to Suppress

      Blood Draw is hereby granted for the reasons set forth in as indicated in       Antonio 4uiles   v. The State of
                  p .J) •    0 '?;0 (.. -I~
      Texas, No. 94 II 99877=€R decided Angust 6:-20 14.                     4.
           V ·..l>/1-lt!~         1      nU""'-IL<A ~
                     1/.HA.nQUJ....                                          ~
                                                             Ju   e residing




CERTIFIED TO BE A TRUE AND
CORRECT C9PY
       1

     ~off.~

e       HEATHER N. KELLAR
        COMAL COUNTY
        DISTR~ ClERK "';)
       PAGE...2.__oF_z_
