                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                        No. 07-14-00203-CR


                          HERMILO SANCHEZ-TAPIA, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE

                          On Appeal from the County Court at Law No. 1
                                     Lubbock County, Texas
                 Trial Court No. 2013-475,994, Honorable Mark Hocker, Presiding

                                         March 10, 2015

                                MEMORANDUM OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant, Hermilo Sanchez-Tapia, was convicted of driving while intoxicated1

(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 appellant’s issue for an article 38.23 jury instruction regarding the public or




       1
           See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2014).
private nature of the location of the arrest.2 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.3        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.




        2
            See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).
        3
         Later in the trial, the site was referred to as the Applegate Mobile Home Park. From the record,
they appear to be the same site.


                                                    2
       Officer Michael Sandoval then responded to the call for assistance and took over

the primary responsibility of the ensuing investigation.     Sandoval observed signs of

intoxication while interviewing appellant. As a result, Sandoval requested appellant take

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

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

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

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

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

emergency room to obtain a sample of his blood.


       Sergeant Juan Muniz, Sandoval’s supervisor, met Sandoval 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


                                             3
up the issue of whether or not the trailer park 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




                                               4
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 commented 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 CODE ANN. § 49.04(a).4


        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.5 The issue before the Court involves appellant’s trial strategy




        4
            Further reference to the Texas Penal Code will be by reference to “section ____” or “§ ____.”
        5
           Further reference to the Texas Code of Criminal Procedure will be by reference to “article ____”
or “art. ____.”


                                                      5
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 officer 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 error 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.


Analysis


       We begin by reviewing article 38.23(a). Article 38.23(a) provides the following:


                                             6
       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.




                                             7
       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 7th 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 Information, 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.”




                                              8
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 [1st 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

                                            9
to questions of Sergeant Muniz regarding the 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

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

egregious that it amounts to fundamental error. See TEX. R. EVID. 103(d);6 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 admissibility 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.

        6
           Texas Rule of Evidence 103(d) provides that “[i]n a trial of a criminal case, nothing in these rules
precludes taking notice of fundamental 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 “[i]t” refers to the subject of the proceeding sentence,

“[t]he 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.3d 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.3d

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, “[W]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 error 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 Unkart, 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 error 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.


                                           12
