                                                                    PD-0554-15
                         PD-0554-15                    COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                       Transmitted 5/12/2015 3:51:57 PM
                                                         Accepted 5/12/2015 4:36:39 PM
                                                                         ABEL ACOSTA
                            No. 07-14-00203-CR                                   CLERK


                                  TO THE
               COURT OF CRIMINAL APPEALS OF TEXAS




                         HERMILO SANCHEZ-TAPIA
                                 Petitioner


                                     V.




                          THE STATE OF TEXAS,
                                Respondent

        PETITIONER'S REQUEST FOR DISCRETIONARY REVIEW




                            No. 07-14-00203-CR
                    IN THE COURT OF APPEALS FOR THE
                SEVENTH JUDICIAL DISTRICT OF TEXAS,
                          AT AMARILLO, TEXAS


Joel Cook
State Bar No. 24044289
Law Offices of Wm. Everett Seymore
810 Main St.
Lubbock, TX 79401                                 May 12, 2015
Telephone: (806)747-3825
Fax: (806)747-3851
joel_cook@outlook.com
                       Counselfor Petitioner
                     Identity of parties and counsel


Counsel For The State:


     At Trial—^Tom Brummett and Cara Brewer, Assistant District Attorneys,
     904 Broadway, Lubbock, Texas 79401.

     On Appeal—^Jeff Ford, Assistant Criminal District Attorney, P.O. Box
     10536, Lubbock, Texas 79408.


Counsel For Appellant:


  1. At Trial—Trial counsel for the defendant were Joel de la Garza and Robin
     Matthews, 1703 Ave. K, Lubbock, TX 79401, (806) 763-0409.



     On Appeal—^Joel Cook, 810 Main Street, Lubbock, Texas 79401.


TRIAL COURT JUDGE:

     AT TRIAL- Honorable Judge Mark Hocker, County Court at Law Number
     One, 904 Broadway, Lubbock, Texas 79401.
                             Table of Contents




IDENTITY OF THE PARTIES                                                              ii


INDEX OF AUTHORITIES                                                                 iv


STATEMENT REGAPO^ING ORAL ARGUMENT                                                   1


STATEMENT OF THE CASE                                                                1


STATEMENT OF PROCEDURAL HISTORY                                                   3


GROUNDS FOR REVIEW                                                                   3


     1) The Court of Appeals erred in holding that the issue of whether a DWI
        arrest occurred in a public place can never require a 38.23(a) instruction
        because it is an essential element of the State's case in chief and does not
        require an affirmative defensive instruction even when raised by the
        evidence.


     2) Blue is too narrow of a standard of review when determining if trial court
        comments were fundamental error and the Court of Appeals erred by not
        adopting a standard of review contemplating the synergistic effect of the
        comments and the improper jury charge.

ARGUMENT IN SUPPORT OF GROUNDS FOR REVIEW                                        4


PRAYER FOR RELIEF                                                                15


CERTIFICATE OF SERVICE                                                           16


CERTIFICATE OF COMPLIANCE                                                        17


APPENDIX (Opinion of the Court of Appeals)


                                         iii
                                Index of Authorities


Cases                                                                    Page(s)




Beggs V. State,

        597 S.W.2d 375 (Tex.Cr.App.l980)                                  9

Blue V. State,
        41 S.W.2d 129 (Tex. Crim. App. 2000) (en banc) (plurality op.)    13


Giesberg v. State,
        984 S.W.2d 245 (Tex.Crim.App.1998)                                11
Granger v. State,

        2000 WL 798072 (Tex.App.-Dallas June 22, 2000) (opinion on remand) (not
        designated for publication)                                      11

Hill, V. State,
        765 S.W.2d 794 (Tex.Crim.App.1989)                                8,9

Jackson v. State,

        646 S.W.2d 225 (Tex.Cr.App.l983)                                  9

Lynch v. State,

        643 S.W.2d 737 (Tex.Cr.App.l983)                                  9

Madden v. State,

        242 S.W.3d 504 (Tex.Crim.App.2007)                               12
Robinson v. State,

        377 S.W.3d 712 (Tex.Crim.App.2012)                                6



                                          IV
SancheZ'Tapia v. State^
       No. 07-14-00203-CR, 2015 WL 1119762 (Tex. App.- Amarillo 2015)
      (mem. op., not designated for publication)                  3,7,13
United States v. Fernandez,

       496 F.2d 1294 (5th Cir.1974)                               14,15

Walters v. State,

      247 S.W.3d 204, 214 (Tex.Crim.App.2007)                     11
                               No. 07-14-00203-CR


                                      TO THE
                 COURT OF CRIMINAL APPEALS OF TEXAS




                          HERMILO SANCHEZ-TAPIA
                                     Petitioner


                                         V.




                             THE STATE OF TEXAS,
                                    Respondent

        PETITIONER'S REQUEST FOR DISCRETIONARY REVIEW


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Petitioner, by and through his attorney of record, respectfully urges this

Court to grant discretionary review of the above named cause.


               STATEMENT REGARDING ORAL ARGUMENT

      Because this case presents novel issues this Court has not previously

addressed, oral arguments would be helpful.


                          STATEMENT OF THE CASE



      Petitioner was convicted of Driving While Intoxicated. The detention and

arrest took place in the parking lot of the RV park where Petitioner resided. At
trial, he contended that the State could not prove the essential element of "public

place" because the area of his detention and arrest did not occur in an area open to

a substantial portion of the public.     Testimony from the respective witnesses

revealed a conflict in historical fact regarding the presence and visibility of fences

and no trespassing signs around the property in question. The witnesses for the

State and Defense disagreed generally as to whether the property was open to a

substantial portion of the public, and specifically as to whether the area was

fenced-in or if there were no trespassing signs posted on the property. This fact

dispute came to a point when the defense questioned the State's witness regarding

the application of the criminal trespass statute to the area of the arrest.       The

questioning was intended to elicit from the State's witnesses how fences and no-

trespassing sings give notice of the "private nature" of property, and how that

relates to the ultimate question of whether an area is open to a substantial portion

of the public. The State objected to relevance, and in sustaining the objection, the

trial court made a comment that could be interpreted by a reasonable juror as the

trial court's adoption of the State's argument that the disputed area was open to a

substantial portion of the public.    No objection was made to the trial court's

comments.



      Because the physical character of the area in terms of its public or private
nature was a disputed historical fact, and that the resolution of that fact was

material to the admissibility of any evidence of the DWI, the Petitioner argued he

was entitled to a 38.23(a) instruction. The first issue of this petition challenges the

trial court's denial of the requested charge. The denial of the instruction coupled

with the trial court's comment on the weight of the evidence regarding the public

or private nature of the property form the basis of the second issue. Petitioner

believes that combination of the judge's comments and the lack of proper

instruction equates to fundamental error and should be reviewable even though no

objection was lodged at trial.


                   STATEMENT OF PROCEDURAL HISTORY

       On March 10, 2015 the Court of Appeals affirmed the trial court.'

Appellant's motion for reconsideration en banc was denied on April 8, 2015. The

petitioner's PDR is due on May 8, 2015.


                              GROUNDS FOR REVIEW


       1) The Court of Appeals erred in holding that the issue of whether a DWI
          arrest occurred in a public place does not require a 38.23(a) instruction
          because it is an essential element of the State's case in chief and does not
          require an affirmative defensive instruction.

      2) Blue is too narrow of a standard of review when determining if trial court
         comments were fundamental error and the Court of Appeals erred by not


^Sanchez-Tapia v. State, No. 07-14-00203-CR, 2015 WL 1119762, at *1 (Tex. App.- Amarillo
2015) (mem. op., not designated for publication).
                                             3
          adopting a standard of review contemplating the synergistic effect of the
          comments and the improper jury charge.

                                   ARGUMENT




Ground one: The Court ofAvveals decision resurrects the ''State's case rule"


       The site of Petitioner's arrest was the key issue of the trial. The area where

the detention and eventual arrest took place was on, or part of a mobile home

park,^ Witnesses for the State testified that the area was a "public place" and that

during their investigation they did not notice any fences or no-trespassing signs

that would have indicated to them that the area was anything but "public."^ The
investigator for the defense testified to the presence of fences and a no-trespassing

sign surrounding the park."^ Additionally, after going to the park to take pictures,

he offered his subjective belief that the mobile home park was not open to a

substantial portion of the public.^ The relevant part of the conflicting testimony is

included below:



STATE: And where was that accident? OFFICER GOSWICK: 7516 1-27.
STATE: Is that in Lubbock, Texas?
OFFICER GOSWICK: Yes.
STATE: And is that a public place?
OFFICER GOSWICK: Yes.



2RR.III.41.
^RR.III.26, 30-31.
^RR.IV.120.
^RR.IV.123.
STATE: Okay. Are there any fences or gates or anything that would restrict the
public from being able to go into this area?
OFFICER GOSWICK: No.^

STATE: And, Officer Goswick, just for the record, is this mobile home park and
the business, are they a public place?
OFFICER GOSWICK: Yes, ma'am.'

DEFENSE: When did you return back out to the park?
KUHLANDER: This morning.
DEFENSE: Did you gain permission to enter by the owner before you traveled
back out there?
KUHLANDER: Not this morning, no.^

DEFENSE: Okay. Now, regarding Defense's Exhibit 13 and 14, can you hold up
Defense Exhibit 13 to the jury?
KUHLANDER: Okay.
DEFENSE: Describe the contents of that image?
KUHLANDER: It is a "No Trespassing" sign on a fence there at Applegate.
DEFENSE: Applegate Mobile Home Park?
KUHLANDER: Yes.'



Summarizing the above testimony. Officer Goswick testified that there were no

fences, gates or "anything that would restrict the public from being able to go into

this area." The defense investigator, testifying to the contrary, stated there were

fences and a no trespassing sign at the scene. The State argues that the dispute

regarding the presence of fences or no-trespassing signs is not really a dispute. In

its brief, the State took the position that "[djespite much argument at trial over the


^ RR.II.26-28.
^ RR.IIL30.
^RR.IV.130.
^RR.IV.120.
issue of a public place, there was no actual disagreement over the historical facts of

the location."


        We believe that this testimony presents a clear disagreement.        It is our

position that this testimony raises a factual dispute as to the physical nature of the

property as previously contemplated by this Court in Robinson, and that such a

dispute requires a 38.23(a) instruction.

        This Court has previously held that the physical nature and characteristics of

an arrest or detention site can form the substance of a disputed fact issue.       In

Robinson^ the potential factual dispute concerned how two roads merged together.

And while the Court ultimately found that no fact issue was raised, it did note that

nature of the physical characteristics of the road could have been a fact issue had

the evidence been slightly different. In Robinson, the State Prosecuting Authority

("SPA") conceded in its brief to this Court that the "material facts" of the case

were the configuration of the meeting of the roads, but that no evidence was put
                                                                      10
forth putting the physical appearance of the roadway in dispute.           This Court

agreed and held that: "There was certainly disagreement among the parties as to

whether a driver is legally required to signal at this confluence of the




  State's Br. at 10.
" Robinson v. State, 377 S.W.Sd 712, 722 (Tex.Crim.App.2012).
  /i/. at 718.
roadways..."^^ However, that the "...parties did not offer conflicting testimony
before the jury with regard to the physical character of the roadway, viz: that Ninth

Street 'continues' onto Margaret Drive."


      The facts of this case raise the type of situation contemplated in Robinson—

a factual dispute as to the physical character of an arrest site. Much like the

physical character of the merging roads in Robinson, the presence or absence of

fences and no-trespassing signs in relation to the public or private nature of the

property is a fact issue.    However, the Court of Appeals adopted the State's

position that an affirmative 38.23(a) instruction is redundant since it is already

included in the jury charge as an element of the State's case.


      "The State contends that the factual dispute about where the DWI
      occurred, and the arrest resulted, goes to the 'public place' element of
      the offense. Therefore, the State posits that the issue of a 'public
      place' was an issue for the jury in determining whether the State met
      its burden of proof in its case-in-chief, not in determining the
      reasonable suspicion for the initial stop. We agree with the State."



This holding conflicts with this Court's prior rulings in regards to statutory

defensive instructions that are duplicative of an element of the State's case in chief




 Id. at 720.


 Sanchez-Tapia, 2015 WL 111976, at *7-8.
                                           7
        This Court has previously held that statutory defensive instructions, if raised

by the evidence, are required to be submitted to the jury. This is so regardless of

whether they are an essential element of the case, or only seek to negate an

essential element of the offense.     Hill v. State explored whether an affirmative

defensive instruction was warranted for a mistake of fact defense that the State

argued only sought to negate an essential element of the State's case.'^ In Hill, the

defendant was charged with commercially dispensing a controlled substance

without a valid medical purpose.'^ The doctor had prescribed Ritalin to an
undercover agent posing as a patient. The defendant took the stand during the

guilt/innocence phase of trial and testified that according to the symptoms reported

by the undercover agent, and the tests he ran on her, he believed he was prescribing

the drug for a valid medical purpose.'^ He requested the mistake of fact defense,
which was denied by the trial court.The State had argued on appeal, and the

intermediate reviewing court agreed, that the instruction was unnecessary because

it was merely an affirmative submission of a defensive issue, which denied the

existence of an essential element of the State's case.     This Court granted review

and uhimately disagreed with the State's position.



  765 S.W.2d 794, 795 (Tex.Crim.App.1989).
" Hill, 765 S.W.2d at 795.

"/rf.
  Id. 3X196.
       The Hill court found the defendant was entitled to an affirmative submission

of the mistake of fact defense even though it only sought to negate an essential

element of the case, and—equally important for purposes of this case—even

though the court's charge had adequately addressed the defendant's mental state in

the jury charge:


       "It is true that the court's charge to the jury included the phrase
       'when said James Lee Hill did not then and there believe that
       Marisela Lopez was suffering from said medical condition...,'
       but nowhere within the charge is there an affirmative
       submission of the defense of mistake of fact."^'



This was not the first time this Court has rejected the "State's case rule" in relation

to affirmative defense issues.


    In Hill, the CCA cited to several cases in support of their position that

statutory, affirmative defense instructions are mandatory—regardless of whether

they only negate an essential element of the State's case.       Hill, and the cases cited

in support, dealt specifically with the statutory defense of mistake of fact, which is

listed in chapter eight of the penal code, but it is only a slight extension of the

CCA's reasoning, and certainly seems that they would have intended, for the

holding to cover any statutory defensive issues contained in either the Penal Code

  Id. at 797.
  See Beggs v. State, 597 S.W.2d 375 (Tex.Cr.App.l980); Lynch v. State, 643 S.W.2d 737
(Tex.Cr.App.l983);yac^o« v. State, 646 S.W.2d 225 (Tex.Cr.App.l983).
                                              9
or the Code of Criminal Procedure. The fact that their decision in Hill would not

extend to chapter nine (justification) defenses or the multiple defensive issues

found in the Code of Criminal Procedure (insanity, statute of limitations, lesser

included offenses and prior convictions, among others) is counter-intuitive. This is

especially so when considering that the State's argument would foreclose a

defendant from an affirmative instruction on an insanity defense simply because

the defendant's mental intent was also an essential element of the State's case. Hill

stands for the position that any statutory defensive issue, raised by the evidence, is

entitled to an affirmative defensive instruction regardless of whether it is an

essential element of the State's case in chief.


      The lack of proper instruction is harmful even if the jury implicitly ruled

against the defendant by finding him guilty. In HilU the court found harm even

though the jury found that the defendant had the requisite mental state. Likewise,

in Granger v. State, the opinion noted the State's "...plausible argument that

appellant was not harmed by the trial court's error because the mistake of fact

defense was subsumed within the mental state element of the primary offense

alleged in the jury charge" but found the error harmful nonetheless.^^
Furthermore, the court noted "...an appellant still suffers some harm by the trial

court's failure to apply the law of mistake of fact to the facts of the appellant's

  Granger v. State, 2000 WL 798072 *at 1 (Tex.App.-Dallas June 22, 2000) (opinion on
remand) (not designated for publication).
                                              10
case."^"^ The court also attached special significance to the fact that the requested

instruction was the defendant's only defense in the case:


       "Here, mistake of fact with respect to whether there was a person
       in the car was appellant's primary defense; he was entitled to have
       the jury rule upon that defense and was harmed in not having the
       requested instruction submitted to the jury to guide it in its
       determination of guilt."^^


       Here, the "public place" issue was defendant's only hope of acquittal. The

issue was raised in front of the jury, was a statutory defensive issue, and the

requested jury instruction could have resulted in an acquittal z/the jury believed the

evidence supported it. Accordingly, the instructions should have been given, and

the fact that the requested instruction was also an element of the State's case in

chief does not eliminate the trial court's duty to properly instruct the jury on the

subject of statutory defensive issues as mandated by Hill. This comports with this

Court's contrasting views on statutory and non-statutory defensive issues—^with

the latter not receiving any protection on appellate review.




^^Mat2.
   See Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App.1998) (alibi defense not entitled to
affirmative instruction as it is not a statutorily enumerated defense); Walters v. State, 247 S.W.3d
204, 214 (Tex.Crim.App.2007) ("Normally, if the instruction is not derived from the code, it is
not "applicable law.").
                                                  11
       Here, there was a disputed issue of material fact that was raised in front of

the jury, and there was a scintilla of evidence offered in support of the requested

charge. Once the requirements of Madden were met, a 38.23(a) instruction is

necessary.^^ The Court of Appeals decision that an affirmative instruction was

redundant because the public place issue was addressed by the charge as an

element of the State's case in chief conflicts with this Court's prior holdings. The

holding in Hill only relates to the mistake of fact defense, but this case presents an

opportunity for this Court to determine if the holding in Hill extends to 38.23(a)

instructions and if the facts of this case are of the type contemplated in Robinson.

We ask this Court to grant review to resolve these questions.


Ground two: The Court ofAppeals erred by not considerins the svnersistic effect
ofthe iudse's comments with the lack ofproper 38,23(a) instruction.




       During trial the defense was questioning a witness regarding the relation

between the Texas criminal trespass statute and the fences and no-trespassing sign

at the RV park. The State objected and in sustaining the objection, the Court made

a comment on the evidence:




   See Madden v. State, 242 S.W.3d 504, 510 (Tex. Grim. App. 2007) (Three factors in
determining if a 38,23(a) instruction is needed: (1) the evidence heard by the jury must raise an
issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) the contested
factual issue must be material to the lawfulness of the challenged conduct in obtaining the
evidence).

                                                  12
DEFENSE: Your Honor, the public versus private place issue is definitely a very
relevant issue. In this case it was brought up by the State as well. And criminal
trespass has overlapping elements of that offense.
THE COURT: The issue is not public or private property. It is a public place. And
the jury will be instructed in the Court's Charge that a public place means any place
to which the public or substantial group of public has access. That is different from
the criminal trespass statute. So until you lay an affirmative defense predicate, I'm
going to sustain the objection.
DEFENSE: I'll pass the witness, Judge.^^


         The Court of Appeals found the judge's comments in front of the jury were

not fundamental error and did not rise to the level of Blue.^^ Blue should not be

the bar for determining if improper comments by the judge rise to the level of

fundamental error when there is also an improper jury charge issue related to the

comments. The true impact of the comments is only shown in relation with the lack

of proper jury instruction that directly relates to the improper comments.

Specifically, because the instruction and improper comments are related and

combine to create a "collective error," the Court should look at the cumulative

effect of the issues in relation to the overall soundness of the verdict. Simply put,

the judge's comment that the area "is a public place" in combination with the

charge error discussed above combines in such a way as to create fundamental

error.




  RR.IV.64-65 (emphasis added).
  Sanchez-Tapia, 2015 WL 1119762 at *12; See Blue v. State, 41 S.W.2d 129,131-32 (Tex.
Crim. App. 2000) (en banc) (plurality op.).

                                             13
          The 5^^ Circuits decision in United States v. Fernandez supports this type of

review.^^ In Fernandez, the court analyzed whether a failure to instruct the jury
on the presumption of innocence was fundamental error.^^ The court initially

noted that they were leaning towards a finding that the omission was harmless

error on its own, but because of comments made by the prosecutor during closing

arguments that related to the missing instruction, they decided the proper scope of

review was to consider the combined affect of the comments and the missing
               'XO
instruction.         The court noted:



          "[w]ith the presumption of innocence charge not requested and
          its omission not objected to, we would be sorely tempted here
          to hold that plain error under Rule 52(b), F.R.Crim.P. is not
          made out, but for one aspect of the trial below which we find so
          critical as to mandate reversal for new trial."^^



          That aspect of the trial they were referring to were the prosecutor's

statements during trial which directly touched on the defendant's presumption of

innocence. The closing argument basically used the defendant's prior convictions




  496 F.2d 1294 (5th Cir.1974) (prosecutor's argument that sought to impose a "presumption of
guilt," together with failure of charge to instruct on the presumption of innocence, was plain
error).

     Fernandez, 496 F.2d at 1296.
32
     Mat 1299.
''Id.
                                               14
to prove that he committed the instant offense.^"^ The court pointed out that the
individual errors of not having the presumption of innocence instruction and the

prosecutors closing arguments, by themselves, were not reversible error; however,

the synergistic effect of the two did create issues with the overall reliability of the

guilty verdict:


      "But our doubts are resolved when we consider the prejudicial
      effect of the failure to charge on the presumption of innocence
      in combination with the prejudicial prosecutorial argument
      indulged in any [sic] largely uncorrected below. The synergistic
      effect of the combination is fatal to the vitality of this
      conviction under the circumstances of this case."^^



      Here, there were improper statements and a lack of proper instruction, a

situation directly analogous to the Fernandez facts. The judge's comment that the

area "was a public place" coupled with the lack of the 38.23(a) instruction involve

around the same issue and so the error from each should be looked at collectively.

We ask the Court to grant review to determine if the reasoning in Fernandez

should be adopted by this Court.


                                      Prayer




   at 1299-1302.
35Matl303.
                                           15
      WHEREFORE, We ask this Court to grant this Petition for Discretionary

Review, set the case for submission, and after submission find that charge error

occurred, or that the trial court's comments were fundamental error that vitiated the

Appellant's presumption of innocence. In either case, that the guilty verdict be

reversed, and the case remanded to the trial court for a new trial.




                                                Respectfully submitted,

                                                LAW OFFICES OF
                                                WM. EVERETT SEYMORE, P.C.

                                                Joel Cook
                                                State Bar No. 24044289
                                                joel_cook@outlook.com
                                                810 Main Street
                                                Lubbock, Texas 79401
                                                Telephone: (806) 747-3825
                                                Facsimile: (806) 747-3851


                                                /s/ Joel Cook
                                                JOEL COOK
                                                Attorney for Appellant




                             Certificate of Service



      I certify that on May 8, 2015, a true, correct, and complete copy of this
Appellant's Brief was delivered via e-mail to counsel for the State.



                                           16
                                              /s/ Joel Cook
                                              JOEL COOK




                         Certificate of Compliance



      This is to certify that this document is in compliance with the word limit set
in Rule 9.4.(i)(2)(B) as determined by Rule 9.4.(i)(2) and is hereby acknowledged
in this Certificate in accordance with the Texas Rules of Appellate Procedure
9.4.(i)(3). This document contains 2,904 words.


                                      /s/ Joel Cook
                                      JOEL COOK




                                         17
APPENDIX
                                    Coatt of
                      ^ebeittl^ 29ts(trtct of tSCexasi at limariQo

                                     No. 07-14-00203-CR



                       HERMILO SANCHE2>TAPIA, APPELLANT

                                             V.


                           THE STATE OFTEXAS, APPELLEE

                       On Appeal from the Comity Court at Law No. 1
                                 Lubbock County, Texas
              Trial Court No. 2013-47^^94, Honorable Mark Hocker, Presiding

                                     March 10» 2015

                             MEMORANDUM OPINION

                   Before CAMPBELL and HANCOCK and PIRTLE,Dr.


       Appellant, Hermilo Sanchez-Tapia, was convicted of driving while intoxicated^
(DWI) and sentenced to 270 days confinement in the Lubbock County Jail. Appellant
has perfected his appeal and, through two issues, contends that the judgment of the
trial court should be reversed. Appellant's first contention is that the trial court erred in

overruling appellants issue for an article 38.23 jury instruction regarding the public or




      ^SeeTex. Penal Code Ann. § 49.04(a) (West Supp. 2014).
private nature ofthe location ofthe arrest.^ Appellant's second issue contends that the
trial court commented on the evidence during a discussion in front of the jury. We

disagree and will affirm.


                               Factual and Procedural Background


        Appellant Is not contesting the sufficiency of the evidence to support the jury's

verdict. Therefore, we limit our discussion of the evidence to the issues presented on

appeal.


        Appellant was arrested on August 7, 2013, for DWI. The events leading up to his

arrest centered on a reported accident in the parking adjacent to a business owned by

Manuel Fernandez. Fernandez owns and operates a business, Manuel's Appliances, at

7516 Interstate 27 in Lubbock, Texas. Fernandez's business is adjacent to Applegate

RV Park.^ After receiving notice that his truck had been struck by another truck,
Fernandez reported the accident by a 911 call to the Lubbock Police Department.


        Officer Rayland Goswick responded to the call. Based upon his observations of

the scene of the accident and the fact that Fernandez had appellant stay at the scene,

Goswick was able to identify appellant as the driver of the truck that struck Fernandez's

truck. Goswick proceeded to investigate appellant's actions only to learn that appellant

did not speak English. Goswick then requested a Spanish-speaking officer be detailed

to assist.




        ^SeeTex. Code Crim. Proc.Ann. art. 38.23 (West 2005).
        ^Later In thetrial, thesite was referred toas theApplegate Mobile Home Pari(. From the record,
they appear to be the same site.
       Officer Micliael Sandovai tlien responded to tlie caii for assistance and tool< over

the primary responsibility of the ensuing investigation. Sandovai observed signs of
intoxication while interviewing appellant. As a result, Sandovai requested appellant take

standardized field sobriety tests. After concluding these tests, Sandovai determined

appellant was intoxicated and requested that appellant take a blood test. In so doing,

Sandovai attempted to read the DIC-24 statutory warning to appellant in Spanish.

Sandovai was unable to conclude the reading of the DIC-24 in Spanish and called for

assistance.   Sandovai transported appellant to University Medical Center (UMC)

emergency room to obtain a sample of his blood.

       Sergeant Juan Muniz, Sandoval's supervisor, met Sandovai and appellant at

UMC and proceeded to read the DIC-24 to appellant in Spanish.                     Appellant

subsequently consented to the taking of a specimen of his blood to test for the presence

of alcohol. The blood was drawn and the sample was submitted to the DPS laboratory

for testing. Appellant does not contest the validity of the blood draw or the results of the

testing. The testing ultimately showed appellant's blood alcohol level to be .207.


       During the testimony of the investigating officers, the State consistently elicited

testimony that the place of the accident was a public place.          Appellant's position

seemed to be that the location of the accident, and, thus, where he was operating a

motor vehicle, was on private property. This dispute over the facts came to a point

during the testimony of Muniz.     After the State concluded its direct examination of

Muniz, appellant attempted to cross-examine Muniz with the aid of the Texas Penal

Code section on criminal trespass. The State objected to this procedure on the grounds

of relevance. Appellant submitted that the relevance was because "they have brought
up the issue of whether or not the trailer pari< is a private place. And In order to show

that it is a public- - or private place, the crime of criminal trespass Is highly relevant."

       The trial court sustained the relevance objection and, in so doing, made the

following statement:


       The Issue is not public or private property. It Is a public place. And the
       jury will be instructed in the Court's Charge that a public place means any
       place to which the public or substantial group of public has access. That
       is different from the criminal trespass statute. So until you lay an
       affirmative defense predicate, I'm going to sustain the objection.


The above quoted statement by the trial court is the basis of appellant's second

contention, that such was a comment on the evidence.


       After the State had rested its case-in-chief, appellant called Todd Kurlander as a

witness. Kurlander Is a private investigator who was assigned to assist appellant's trial

counsel In the defense of the charge pending against appellant.               Pursuant to his

assignment, Kurlander took a series of photographs at the scene of the arrest. One of

the photographs contains an image that contained a "No Trespassing" sign. According

to the testimony, this sign was on a fence at the Applegate Mobile Home Park. Further,

Kurlander testified that, before he started taking photos of the scene, he felt it necessary

to obtain permission from the owner.


      After both sides had rested and closed the presentation of evidence, the trial

court conducted a hearing on the proposed Court's Charge. At that hearing, appellant

requested an article 38.23 jury instruction. The thrust of the requested charge was to

allow the jury to determine whether appellant had been driving or operating a motor
vehicle In a public place. The trial court denied the requested jury instruction. This is
the basis of appellant's first contention.


           The jury convicted appellant of DWi and this appeal followed.                  Through two

issues, appellant contends that the trial court erred In denying the requested jury

instruction and comnfiented on the evidence. Disagreeing with appellant's contentions,

we will affirm.


                                              Jury Instruction


           Prior to addressing the requested jury instruction issue, it will be helpful for us to

set forth the elements of a charge of DWI. Section 49.04(a) of the Texas Penal Code

sets forth the elements necessary to convict appellant of DWI. They are as follows:


           (1) appellant

           (2) was intoxicated

           (3) while operating a motor vehicle

           (4) in a public place.


See Tex. Penal CodeAnn. § 49.04(a).''

           Appellant's first issue contends that the trial court committed reversible error

when it refused to submit a jury instruction pursuant to article 38.23 of the Texas Code

of Criminal Procedure.® The issue before the Court involves appellant's trial strategy



           *Further reference to the Texas Penal Code will be by reference to "section    or"§
           ^Further reference tothe Texas Code of Criminal Procedure will beby reference to"article
or "art.
that the arrest occurred on private property. In connection with that proposition, trial

counsel requested that the following jury instruction be given to the jury:


        You are instructed that no evidence obtained by an officer or other person
        in violation of any provision of the Constitution of laws in the State of
        Texas, or of the Constitutional laws of the United States of America, shall
        be admitted into evidence against the accused on trial of a criminal case.
        An officer is committed to make a temporary investigation, investigative
        detention of a motorist, if the offlcer has specific articulable facts, which
        taken together with rational inferences from those facts leading to
        conclude that a person detained actually is, at the time of detention,
        driving and operating a motor vehicle in a public place, while not having
        the use of his mental or physical faculties by reason of the introduction of
        alcohol into his system.

       Now, bearing in mind, if you find from the evidence that on the occasion in
       question, the accused, [appellant], was not driving or operating a motor
       vehicle In a public place, or if you have a reasonable doubt thereof, you
       will disregard the testimony of the officers concerning the detention of the
       accused, the questioning of the accused, and any evidence obtained from
       the accused including evidence relating to blood, and any conclusion
       drawn as a result thereof. And you will not consider such evidence for any
       purpose whatsoever.


Standard of review


       A claim of error in the court's charge involves a two-step process. See Abnor v.

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994) (en banc). First, we must determine

whether error occurred, and then, if en-or occurred, whether sufficient harm resulted

from the alleged error to require reversal. Id. at 731-32. Accordingly, our initial inquiry
is to determine if the trial court erred in denying the requested article 38.23(a)

instruction.


Analvsis



       We begin by reviewing article 38.23(a). Article 38.23(a) provides the following:
       No evidence obtained by an officer or other person in violation of any
       provision of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.


       The requirements to entitle appellant to an article 38.23(a) jury instruction are set

forth in Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). The Court

initially pointed out that "a defendant's right to the submission of jury instructions under

Article 38.23(a) is limited to disputed issues of fact that are material to his claim of a

constitutional or statutory violation that would render evidence inadmissible." Id. at 509-

10. The Court then set forth the three requirements appellant must meet to be entitled

to such an issue as follows: (1) the evidence heard by the jury must raise an issue of

fact; (2) the evidence on that fact must be affirmatively contested; and (3) the contested

factual issue must be material to the lawfulness of the challenged conduct in obtaining

the evidence. Id. It is the third element that bears scrutiny in the case before the Court.

       Appellant's entire argument is centered around the factual issue of whether the

DWI occurred on private property. Appellant asserts that the DWI stop occurred in an

area that had posted "No Trespassing" signs. This, according to appellant, then raised
a factual Issue that required the requested article 38.23(a) Instruction.

       The State contends that the factual dispute about where the DWI occurred, and

the arrest resulted, goes to the "public place" element of the offense. Therefore, the

State posits that the issue of a "public place" was an issue for the jury in determining
whether the State met Its burden of proof in its case-in-chief, not in determining the
reasonable suspicion for the initial stop.
       We agree with the State. That article 38.23(a) is an exclusionary rule design to

protect a person charged with a criminal offense from illegally obtained evidence is

beyond dispute. See art. 38.23(a); Madden, 242 S.W.3d at 509-10. What goes unsaid

in appellant's brief is how the fact question at issue would result in the evidence being

Inadmissible. Appellant makes an argument that the conduct of the police violated the

criminal trespass statute. However, appellant has provided the Court with no citations

to cases holding that such a factual allegation, in this context, would result in the

evidence being held to be illegally obtained. Further, it is of note that appellant did not

file any pre-trial motions that contested the reasonable suspicion to detain appellant on

the basis of the now alleged criminal trespass issue.


       As the factual issue was raised before the jury, the contested fact was whether

the event in question occurred in a "public place." This issue was thoroughly covered

by the Court's Charge to the jury. Therein, the trial court defined a "public place"

pursuant to the definition found in section 1.07(a)(40) of the Texas Penal Code.

§ 1.07(a)(40) (West Supp. 2014). Further, the charge properly defined the offense of

DWI pursuant to the Texas Penal Code. § 49,04(a). In its application paragraph, the

trial court instructed the jury as follows:

       Now, after considering all the evidence before you and these instructions,
       if you find from the evidence beyond a reasonable doubt that, on or about
       the 7^"^ day of August, 2013, in Lubbock County, Texas the [appellant],
       HERMILO SANCHEZ-TAPIA, while intoxicated, operated a motor vehicle
       in a public place, as charged in the Infomnation, then you will find the
       [appellant] "Guilty." Unless you so find beyond a reasonable doubt, or if
       you have a reasonable doubt thereof, then you will find the [appellant]
       "NOT GUILTY."
This charge gave full effect to appellant's contested factual issue, whether the offense

took place in a public or private place. As such, it meets the requirements for a Court's

Charge as set forth in the Code of Criminal Procedure. Art. 36.14. Additionally, this

charge sets forth the law applicable to the case. See Walters v. State, 247 S.W.3d 204,

208 (Tex. Crim. App. 2007).


       Finally, the State cites the Court to Ackley v. State for the proposition that a

similar contention has been considered and rejected by one of our sister courts of

appeals. See Ackley v. State, No. 01-09-00476-CR, 2011 Tex. App. LEXIS 9294, at

*13-14 (Tex. App.—Houston [1®* Dist.] Nov. 23, 2011, no pet.) (mem. op., not
designated for publication). While the facts in Ackley are different in many respects

from the case before the Court, we find its arguments persuasive on the issue of

whether the private or public nature of the location of the arrest requires a 38.23(a) jury

instruction. The location at issue in Ackley was a public campground that required a fee

for use; the ultimate issue was whether the campground was a "public place." See Id. at

*13.    The court In Ackley found that the alleged factual dispute, whether the

campground was a "public place" was not material to the question of reasonable

suspicion to stop the appellant. See Id. *13-14. We, likewise, find that the question of

public versus private place, as litigated in this case, is not material to the question of

reasonable suspicion to stop appellant.       For the foregoing reasons, we overrule

appellant's first issue.


                               Comment on the Evidence


       Appellant's second issue contends that the trial court Impermissibly commented

on the evidence In front of the jury during a discussion of the State's relevance objection
to questions of Sergeant Muniz regarding tlie criminal trespass statute.                       We have

previously set forth the trial court's comment and refer the parties to that section of the

opinion. At the outset, we note that appellant did not object to the statement by the trial

court at the time It was made. Our law requires that In most Instances an objection or

motion notifying the trial court of any objection is required to preserve an issue of

appellate review. See Tex. R. App. P. 33.1(a)(1): Marin v. State, 851 S.W.2d 275, 278

(Tex. Crim. App. 1993) (en banc). There is a type of error that is an exception to the

presen/ation rule: where a trial court makes comments in front of the jury that are so

egregious that it amounts to fundamental en^or. See Tex. R. Evid. 103(d);® Unkart v.
State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013).


         However, before we begin any type of analysis to determine whether an alleged

comment by the trial court that was not objected to was fundamental error, and, thusly,

did not have to be preserved for appellate review, we must decide whether the

statement made by the trial court was in fact a comment on the evidence.


         Trial judges must refrain from making any remark or comment calculated to

convey to the jury his opinion of the case. See Brown v. State, 122 S.W.3d 794, 798

(Tex. Crim. App. 2003). Further, article 38.05 of the Texas Code of Criminal Procedure

provides;


        In ruling on the admissibillty of evidence, the judge shall not discuss or
        comment upon the weight of the same or its bearing in the case, but shall
        simply decide whether or not it Is admissible; nor shall he, at any stage of
        the proceeding previous to the return of the verdict, make any remark
        calculated to convey to the jury his opinion of the case.

        ^Texas Rule ofEvidence 103(d) provides that "[iln a trial ofa criminal case, nothing In these rules
precludes taking notice of fundanfiental errors affecting substantial rights although they were not brought
to the attention of the court.*


                                                    10
Art. 38,05 (West 1979). Any remark or comment made by the trial judge is apt to be

seen by the jury as shedding some light on the views of the court to the proceedings

before him. See Brown, 122 S.W.3d at 798.


      The comment in question is presented by appellant as a statement to the jury

about the trial court's determination that the place of arrest was a public place.

Appellant focuses in on this one statement; "It is a public place." When viewed alone,

the statement at issue certainly appears to be a comment on the evidence. However,

we cannot view the sentence by itself because it was part of the trial court's ruling on

the question of the relevance of the criminal trespass statute, in context, the statement

reads as follows: "The issue is not public or private property, it is a public place." When

placed In context, the pronoun "[ijt" refers to the subject of the proceeding sentence,

"[tjhe issue." We read the comment in its proper context as the trial court's clarification

of the relevant statutory element at issue in the case. Therefore, the trial court was not

making a comment on the evidence that was calculated to divulge his opinion about the

case to the jury. See Brown, 122 S.W.Sd at 798.


      Even if we were to assume arguendo that the trial court's ruling on the objection

was a comment on the evidence, we would still be unable to grant appellant the relief he

asks for. As stated above, there was no objection to the trial court's ruling. Therefore,

the only way the statement is reversible is if it is fundamental error, such as, comments

that vitiated the appellant's presumption of innocence. See Blue v. State, 41 S.W.Sd

129,131-32 (Tex. Crim. App. 2000) (en banc) (plurality op.). The facts of the Blue case

are much more compelling than the facts of the case before the court. In Blue, the trial



                                            11
court apologized to the jury for the delay by telling them that the defendant was still

trying to decide whether to take a plea bargain. See Id at 130. Further, the trial court

told the jury his personal preference was the defendant plead guilty. See id. Lastly, the

trial court informed the jury, "[VV]e were all trying to work toward that and save you time

and cost of time." See id. Ultimately, a plurality of the Court of Criminal Appeals held

that the actions of the trial court amounted to fundamental en-or and there need not be

an objection at trial to gain appellate review of the issue. See id. at 134. Yet, the

plurality opinion all agreed on the outcome with almost as many different reasons as

judges who participated in the decision. See Unl<art, 400 S.W.3d at 99. In the final

analysis, the Court of Criminal Appeals has limited Blue to no precedential value and

deemed it only to have persuasive value. See Id. at 100-01.


      We decline to apply Blue to the facts before us. The statement by the trial court

was not one that rose to the level of fundamental error, that is, it did not affect the

fundamental substantial rights of appellant.     See Tex. R. Evid. 103(d); Jasper v. State,

61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Accordingly, the en-or had to be preserved

for appellate review.   See Tex. R. App. P. 33.1(a)(1): Marin, 851 S.W.2d at 278.

Inasmuch as there was no objection at trial, nothing has been preserved for review.

See id. Appellant's second issue is overruled.


                                       Conclusion



      Having overruled appellant's issues, we affirm the trial court's judgment.



                                                  Mackey K. Hancock
                                                        Justice
Do not publish.


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