                                                                                               ACCEPTED
                                                                                           03-14-00334-CR
                                                                                                   7575570
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                    10/28/2015 11:36:08 AM
                                                                                         JEFFREY D. KYLE
                               No. 03-14-00334-CR                                                   CLERK




                                                                           FILED IN
                         In the Third Court of Appeals              3rd COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                 Austin, Texas                     10/28/2015 11:36:08 AM
                                                                      JEFFREY D. KYLE
                                                                            Clerk


                              TERAN PENNICK,
                                                Appellant,

                                           v.

                          THE STATE OF TEXAS,
                                                Appellee.


                   On appeal from the County Court-at-Law Number Six,
                                    Travis County, Texas
                             Trial Cause No. C-1-CR-13-200027




                                STATE’S BRIEF

                                        DAVID A. ESCAMILLA
                                        TRAVIS COUNTY ATTORNEY

                                        GISELLE HORTON
                                        ASSISTANT TRAVIS COUNTY ATTORNEY
                                        State Bar Number 10018000
                                        Post Office Box 1748
                                        Austin, Texas 78767
                                        Telephone: (512)854-9415
                                        TCAppellate@traviscountytx.gov

October 28, 2015                        ATTORNEYS FOR THE STATE OF TEXAS



                         ORAL ARGUMENT IS NOT REQUESTED
                                           TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE STATE’S ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT

         Reply Point One: If the point is preserved and presents
         anything for review, the volunteered statements
         were admissible.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

         Pennick’s contentions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

         The standard of review and general legal principles. . . . . . . . . . . . . . . 8

         The trial objection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

         Pennick failed to preserve error for review. . . . . . . . . . . . . . . . . . . . . . 10

         If Pennick preserved error, his first point presents
         nothing for review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

         Furthermore, Pennick’s statements, whatever they were,
         were admissible against him at trial because they
         were volunteered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


                                                           i
         Reply Point Two: The evidence is legally sufficient to sustain the
         judgment of conviction for driving while intoxicated. . . . . . . . . . . . . 13

         Pennick’s first legal-sufficiency question: Was the evidence
         legally insufficient because the testimony regarding his
         intoxication when he drove off to shoot fireworks was
         somewhat conflicting?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

         Pennick’s second legal-sufficiency question: Was the ditch in
         which the highly intoxicated Pennick was found a public place?. . . 15

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19




                                                             ii
                                          INDEX OF AUTHORITIES

Constitutional                                                                                            Page
U.S. CONST. Amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Statutes
TEX. CODE CRIM. P. art. 38.21
      (West 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
TEX. CODE CRIM. P. art. 38.22 § 5
      (West Supp. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
TEX. PENAL CODE § 1.07(a)(40)
      (West Supp. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
TEX. PENAL CODE § 49.04(a)
      (West Supp. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Rules
TEX. R. APP. P. 33.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
TEX. R. APP. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
TEX. R. EVID. 101(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Cases
Alvarado v. State, 912 S.W.2d 199
      (Tex. Crim. App. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Gigliobianco v. State, 210 S.W.3d 637
      (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Jackson v. Virginia, 443 U.S. 307
      (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Kindle v. State, No. 05-01-01818-CR, 2003 Tex. App. LEXIS 9774
      (Tex. App.—Dallas Nov. 18, 2003, no pet.)
      (mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . . . . 17
Kirtley v. State, 585 S.W.2d 724
      (Tex. Crim. App 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
                                                           iii
Kotaska v. State, No. 03-01-00438-CR, 2002 Tex. App. LEXIS 2549
      (Tex. App.—Austin April 11, 2002, no pet.)
      (not designated for publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Lape v. State, 893 S.W.2d 949
      (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). . . . . . . . . . . . . . . . 12
Merritt v. State, 368 S.W.3d 516
      (Tex. Crim. App. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Montgomery v. State, 810 S.W.2d 372
      (Tex. Crim. App. 1991) (op. on rehearing). . . . . . . . . . . . . . . . . . . . . . . . 8
Murray v. State, 457 S.W.3d 446
      (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Perry v. State, 991 S.W.2d 50
      (Tex. App.—Fort Worth 1998, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . 17
Rhode Island v. Innis, 446 U.S. 291
      (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Sanchez-Tapia v. State, No. 07-14-00203-CR, 2015 Tex. App. LEXIS 2273
      (Tex. App.—Amarillo March 10, 2015, pet. ref’d)
      (mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . . . . 16
Torres v. State, 979 S.W.2d 668
      (Tex. App.—San Antonio 1998, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 11
Woodruff v. State, 899 S.W.2d 443
      (Tex. App.—Austin 1995, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Wyatt v. State, 23 S.W.3d 18
      (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




                                                           iv
                           STATEMENT OF THE CASE

      This is a defense appeal from a jury conviction for an enhanced

                             1
misdemeanor DWI offense, alleged to have been committed on January 1,

      2
2013. CR 11, 42. On May 7, 2014, the trial court assessed punishment and

sentenced Pennick to one year’s confinement in the Travis County Jail and

a $4,000 fine, but suspended imposition of this sentence and placed

Pennick on community supervision for two years. CR 57–60 (judgment

nunc pro tunc). Pennick gave written notice of appeal on May 19, 2014.

CR 51.

                                 ISSUES PRESENTED

      Issue One: State’s Exhibit #4 is a recording taken from the arresting

officer’s dashboard video camera. The trial court admitted the entire

exhibit over the defense relevancy objection. Does Rule 403 require the



  1
     ?A person commits an offense if the person is intoxicated while operating a
motor vehicle in a public place.” TEX. PENAL CODE § 49.04(a) (West Supp. 2014).
  2
      The information’s enhancement paragraph alleged, and the jury found,
that Pennick had a blood-alcohol concentration of 0.15 or more at the time the
analysis was performed. CR 11, 42.
                                        1
court to exclude Pennick’s numerous ?derogatory and inflammatory”

statements about and to the arresting officer contained in State’s Exhibit

#4?

      Issue Two: When police arrived, the intoxicated Pennick was in the

driver’s seat of a car, engine running and wheels spinning, trying to

extricate it from a muddy drainage ditch at the side of the road. Is the

evidence legally insufficient to sustain the judgment because (1) the

testimony regarding Pennick’s intoxication when he actually drove on a

public roadway is conflicting; or because (2) the ditch in which he was

found—operating a car and indisputably intoxicated—was not a public

place?

                               BACKGROUND

      Teran Pennick and his girlfriend, Shaunna Johnson, arrived at a New

Year’s Eve party at around five o’clock p.m. 3 RR 26. Johnson’s niece,

Chassie Nuckols, was there, too. 3 RR 27. Pennick drank beer and

margaritas during most of his time at the party. 3 RR 27.



                                      2
     They all left about six hours later, around 11:00 p.m. 3 RR 27. Pennick

dropped Johnson off at Nuckols’ house, then drove Johnson’s car to go

shoot off fireworks with friends. 3 RR 30; 4 RR 28. When Pennick did not

return before midnight, Johnson and Nuckols set out to find him. 3 RR 31;

4 RR 16.

     They found him behind the wheel of Johnson’s car, engine running

and tires spinning in the mud in a drainage ditch next to the road. 3 RR 31,

59; 4 RR 16. Johnson and Pennick began to argue heatedly. 4 RR 17. About

twenty minutes after midnight, Johnson called the police, who arrived six

minutes later. 3 RR 55.

     When Travis County Sheriff’s Deputy Orts got there, Pennick was

?ranting and raving; screaming; walking around; [he] didn’t seem to be

oriented to what was going on.” 3 RR 60. When the deputy asked Pennick

to come talk to her, he cursed her. 3 RR 61. He approached Orts in an

aggressive manner, body forward and arms bowed. 3 RR 61. ?He was

coming at me with a look that I felt he was about to assault me.” 3 RR 61.



                                     3
He also had his hand in his waistband—?always a hazard”—as though he

were concealing a weapon. 3 RR 61.

      Orts told Pennick to back away and get on the ground. She warned

him at least twice that he could be tased if he did not. 3 RR 62. When

Pennick continued to advance on her, she feared for her safety and tased

him from a range of ten to twelve feet. 3 RR 62. She tased him a second

time when he still would not comply with her commands. 3 RR 62.

Afterwards, Pennick’s emotional state was much as before: extreme anger

and aggression. But now, extreme vulgarity and acrimonious name-calling

directed at Orts were tempered with apologies and brief, occasional bouts

of crying. 3 RR 66; see, e.g., 6 RR State’s Exhibit #4 @ 32:52–34:30,

41:51–42:18, 1:15:15–1:15:45. Pennick told the deputy several times that he

had been driving, and that he was the one who had driven the car into the

ditch. 3 RR 111; 6 RR State’s Exhibit #4 @ 38:50, 39:40, 1:09:35. Pennick also

admitted that he had been drinking that night. 3 RR 79; 6 RR State’s Exhibit

#4 @ 1:09:35.



                                        4
      After Pennick refused to provide a breath or blood sample, Orts

secured a warrant to draw a blood sample. 3 RR 67–68. His blood was

drawn while he was in a restraint chair, at 3:59 a.m. on January 1,

2013—about three and a half hours after police first encountered him. 3 RR

122. Analysis showed a blood-alcohol content of 0.157. 3 RR 154.

                    SUMMARY OF THE STATE’S ARGUMENT

      Summary of Reply Point One: Pennick’s first point is waived for two

reasons. First, he failed to preserve the point for review because his trial

relevancy objection to certain statements in State’s Exhibit #4 fails to

comport with his Rule 403 contention on appeal.

      Additionally, Pennick waived his first point because it presents

nothing for review. He complains of the trial court’s admitting ?a number

of derogatory and inflammatory statements aimed at and about the

arresting officer in this case[,]” but fails to apprise the Court of the specific

statements at issue or where in State’s Exhibit #4 they may be found.

Pennick therefore asks the Court not only to do his work for him but also

to do the impossible: to comb through the hundred of statements in the
                                        5
exhibit and detect those that, in counsel’s estimation, are ?derogatory and

inflammatory.”

      Even if Pennick had not waived the point, virtually all of his

statements on State’s Exhibit #4 were volunteered and hence admissible

under constitutional and statutory provisions.

      Summary of Reply Point Two: Pennick’s two legal-sufficiency

arguments rely on (1) a defense-favorable view of one shred of conflicting

intoxication testimony, and (2) appellate counsel’s speculation that the

ditch in which he was found might have been private property. These

arguments misapply the standard of review. Viewing the evidence in the

light most favorable to the verdict, any rational trier could have found

beyond a reasonable doubt that (1) Pennick was intoxicated while

operating a motor vehicle (2) in a public place.




                                      6
                                 ARGUMENT

      Reply Point One: If the point is preserved and presents
      anything for review, the volunteered statements were
      admissible.

      Pennick’s contentions

      Pennick contends that the trial court abused its discretion in

admitting, over his Rule 403 objection, certain undisclosed portions of

State’s Exhibit #4. He states:

      The Appellant made a number of derogatory and inflammatory
      statements aimed at and about the arresting officer in this case.
      (R.R. III 73-78). These statements were made following the use
      of a taser by the officer on the Appellant. (R.R. III 56-64). These
      statements for the most part were not made in reaction to any
      questions by the arresting officer, but freely made by the
      Appellant.

Pennick’s Brief, p. 8. He speculates that the derogatory and inflammatory

statements ?very probably” negatively affected the jurors’ opinion of him.

Pennick’s Brief, pp. 7, 9. He reasons that the statements were inadmissible

because, with all the other intoxication evidence at the State’s disposal, the

statements were ?not particularly probative[.]” Pennick’s Brief, pp. 9–10.



                                       7
      The standard of review and general legal principles

      Rulings on the admission of evidence are reviewed under the abuse-

of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991) (op. on rehearing). Rule 403 sets out when, in its discretion, a

trial court may exclude relevant evidence for unfair prejudice, confusion,

or other reasons.

      The court may exclude relevant evidence if its probative value
      is substantially outweighed by a danger of one or more of the
      following: unfair prejudice, confusing the issues, misleading
      the jury, undue delay, or needlessly presenting cumulative
      evidence.

TEX. R. EVID. 403.

      When undertaking a Rule 403 analysis, a trial court must balance (1)

the inherent probative force of the proffered items of evidence along with

(2) the proponent’s need for that evidence against (3) any tendency of the

evidence to suggest decision on an improper basis, (4) any tendency of the

evidence to confuse or distract the jury from the main issues, (5) any

tendency of the evidence to be given undue weight by a jury that has not

been equipped to evaluate the probative force of the evidence, and (6) the
                                      8
likelihood that presentation of the evidence will consume an inordinate

amount of time or merely repeat evidence already admitted. Gigliobianco v.

State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

     The trial objection

     At trial, the defense objected to

     the playing of the audio during this segment where he calls [the
     deputy] all kinds of names. I don’t think it is relevant to
     intoxication. . . . [The prosecutor wants] to introduce it, if I
     understand right, for signs of intoxication. We are saying it is
     just prejudicial to get the jury to hate him.

3 RR 74. The prosecutor responded that the admissions and the comments

were admissible to show intoxication, and were volunteered statements

made after arrest. ?Of course it is prejudicial, Your Honor. This is a DWI

case and we intend to show that the defendant was intoxicated.” 3 RR 75.

The prosecutor also argued that, because defense counsel had alluded in

opening statement to an unreasonable use of police force, State’s Exhibit #4

was the best evidence of Pennick’s demeanor when considering whether

the force used was reasonable. 3 RR 76. After the parties explained the



                                         9
?gist” of the statements and admissions, the trial court remarked that the

State had the stronger argument. 3 RR 78.

      Pennick failed to preserve error for review.

      Pennick did not invoke Rule 403 at trial, but instead objected to the

name-calling portion of State’s Exhibit #4 on relevancy grounds. Counsel’s

mere remark that the statements were prejudicial and that the State had

other intoxication evidence would not have put a trial court fairly on notice

that the statements’ probative value was substantially outweighed by a

danger of unfair prejudice, confusing the issues, misleading the jury,

undue delay, or needlessly presenting cumulative evidence. Kotaska v.

State, No. 03-01-00438-CR, 2002 Tex. App. LEXIS 2549, at *7 (Tex.

App.—Austin April 11, 2002, no pet.) (not designated for publication).

Because the contention on appeal does not comport with the trial objection,

nothing is preserved for review. TEX. R. APP. P. 33.1(a); Id.




                                       10
      If Pennick preserved error, his first point presents nothing

for review.

      Pennick contends that ?the inflammatory statements” were

erroneously admitted. This gives the reader nothing to analyze under

Gigliobianco. Which of the hundreds of statements in State’s Exhibit #4 does

Pennick believe are ?inflammatory” and inadmissible? The reader must

simply guess at this.

      Pennick is implicitly asking this Court to forsake its role as a neutral

arbiter and become an advocate for the defense by combing through the

exhibit and making specific arguments for him. But reviewing courts

decline to do this. Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App.

2000). The rules of appellate procedure require the appellant either to set

out the complained-of statements or to point to the place in State’s Exhibit

#4 where they may be found. TEX. R. APP. P. 38.1(i). Because Pennick has

not done so, his first point presents nothing for review and is waived. Id.;

Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995); Torres v. State,



                                      11
979 S.W.2d 668, 671 (Tex. App.—San Antonio 1998, no pet.); Lape v. State,

893 S.W.2d 949, 953 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d).

       Furthermore, Pennick’s statements, whatever they were, were

admissible against him at trial because they were volunteered.

       Pennick admits that the statements ?for the most part were not

made in reaction to any questions by the arresting officer, but freely made

by the Appellant.” Pennick’s Brief, p. 8. Thus, even though we cannot tell

exactly which volunteered statements Pennick believes should have been

redacted from State’s Exhibit #4, a criminal defendant’s volunteered

statements are admissible against him at trial under the Constitution and

Texas statutes. U.S. CONST. Amend. V; TEX. CODE CRIM. P. arts. 38.21, 38.22

                                 3
§ 5 (West 2005 & Supp. 2014); Rhode Island v. Innis, 446 U.S. 291, 299 (1980).




   3
       A statement of an accused may be used in evidence against him if it
       appears that the same was freely and voluntarily made without
       compulsion or persuasion, under the rules hereafter prescribed.

TEX. CODE CRIM. P. art. 38.21.
                                        12
The Constitution and statutes take precedence over the rules of evidence.

TEX. R. EVID. 101(c). The trial court therefore did not abuse its discretion in

admitting the statements.

      Reply Point Two: The evidence is legally sufficient to sustain
      the judgment of conviction for driving while intoxicated.

      Pennick’s second point of error contends that the evidence is legally

insufficient ?to show that probable cause existed that appellant operated a

motor vehicle in a public place while intoxicated.” Pennick’s Brief, p. 11.

The clerk’s record does not show that Pennick litigated probable cause

below or filed a motion to suppress the State’s evidence on grounds that

police lacked probable cause to arrest.




      Nothing in this article precludes the admission of a statement made by the
      accused in open court at his trial, . . . or of a statement that is res gestae of
      the arrest or of the offense, or of a statement that does not stem from
      custodial interrogation, that has a bearing upon the credibility of the
      accused as a witness, or of any other statement that may be admissible
      under law.

TEX. CODE CRIM. P. art. 38.22 § 5.

                                          13
     Pennick’s first legal-sufficiency question: Was the evidence legally

insufficient because the testimony regarding his intoxication when he

drove off to shoot fireworks was somewhat conflicting?

     Pennick makes two specific legal-sufficiency arguments. First, he

contends that he was ?clearly in a public place when he drove to [the]

location on New Katy Lane. What is not clearly shown is that [he] was

intoxicated during the time he was clearly operating a vehicle in a public

place[,]” because the evidence of intoxication was conflicting. Nuckols

testified that Pennick was intoxicated when he left to go shoot off

fireworks; Johnson implied that he was not intoxicated when she testified

that she never would have lent him her car if he had been. Pennick’s Brief,

pp. 13–14.

     Viewing the evidence in the light most favorable to the verdict, any

rational trier could have found that Pennick was intoxicated when he

operated a motor vehicle in a public place. Nuckols testified that Pennick

was intoxicated when he left the New Year’s Eve party, and that his

girlfriend freely gave him the keys to her car even though he was drunk. 3
                                     14
RR 41. The jury is presumed to have resolved all conflicts in favor of the

verdict, and the court defers to that determination. Jackson v. Virginia, 443

U.S. 307, 326 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App.

2012) (jury is the sole judge of credibility and weight to be attached to

witness testimony). Furthermore, the intoxilyzer expert estimated that

Pennick was somewhere in the .192 to .262 breath-alcohol content range

when he first came into contact with the police. 3 RR 158. The jury

therefore could have inferred that he was intoxicated about an hour and

twenty minutes before that, when he left the New Year’s Eve party. 3 RR

158. Pennick’s first contention under his legal-sufficiency point of error

fails to view the evidence in the light most favorable to the verdict, as the

standard of review requires. Jackson, 443 U.S. at 319; Murray v. State, 457

S.W.3d 446, 448 (Tex. Crim. App. 2015).

      Pennick’s second legal-sufficiency question: Was the ditch in

which the highly intoxicated Pennick was found a public place?

      Pennick also contends that the ditch in which police found him was

not a ?public place” because ?[t]he ditch is clearly on an individual’s
                                      15
private property.” Pennick’s Brief, p. 14. The State does not understand

Pennick to contest the legal sufficiency of the ?operation” evidence.

      A ?public place” is ?any place to which the public or a substantial

group of the public has access and includes, but is not limited, to streets,

highways, and the common areas of schools, hospitals, apartment houses,

office buildings, transport facilities, and shops.” TEX. PENAL CODE §

1.07(a)(40) (West Supp. 2014). If the public has any access to the place in

question, it is a public place within the meaning of the Penal Code.

Woodruff v. State, 899 S.W.2d 443, 445 (Tex. App.—Austin 1995, pet. ref’d).

Whether a place is public is a fact issue for the trier. Kirtley v. State, 585

S.W.2d 724, 276 (Tex. Crim. App 1979); Sanchez-Tapia v. State, No. 07-14-

00203-CR, 2015 Tex. App. LEXIS 2273, at *9 (Tex. App.—Amarillo March 10,

2015, pet. ref’d) (mem. op., not designated for publication).

      Nothing shows that the ditch in which Pennick was found was

located on private property, as he now contends. And location on private

property would not preclude the ditch’s meeting the Penal Code’s

definition of public place because, as testimony and State’s Exhibit #4
                                        16
show, any member of the public could readily access it, just as Pennick did.

See Woodruff, 899 S.W.2d at 445; Kindle v. State, No. 05-01-01818-CR, 2003

Tex. App. LEXIS 9774, at *9 (Tex. App.—Dallas Nov. 18, 2003, no pet.)

(mem. op., not designated for publication) (finding that the parking lot of a

privately owned hotel can be considered a ?public place” because the

public has access to it). Nuckols testified that the ditch was accessible

without needing to go through a gate. 3 RR 32, 47–48; see Perry v. State, 991

S.W.2d 50, 52 (Tex. App.—Fort Worth 1998, pet. ref’d) (finding that a park

that is closed at night is still ?public” when there is no gate barring entry).

Deputy Orts testified that the area where she found Pennick ?is accessible

by the public.” 3 RR 59. From this evidence, any rational trier could have

found that the ditch was a public place.




                                       17
                                   PRAYER

      For these reasons, the Travis County Attorney, on behalf of the State

of Texas, asks this Court to overrule the points of error and affirm the

judgment of conviction for driving while intoxicated.



                                    Respectfully submitted,

                                    DAVID A. ESCAMILLA
                                    TRAVIS COUNTY ATTORNEY



                                    ___________________________
                                    Giselle Horton
                                    Assistant Travis County Attorney
                                    State Bar Number 10018000
                                    Post Office Box 1748
                                    Austin, Texas 78767
                                    Telephone: (512) 854-9415
                                    TCAppellate@traviscountytx.gov

                                    ATTORNEYS FOR THE STATE OF TEXAS




                                      18
                       CERTIFICATE OF COMPLIANCE

     Relying on Corel WordPerfect’s word-count function, I certify that

this document complies with the word-count limitations of TEX. R. APP. P.

9.4. The document (counting all of its parts except for the appendices)

contains 3734 words.




                                   ___________________________
                                   Giselle Horton

                          CERTIFICATE OF SERVICE

     I certify that I have sent a complete and legible copy of this State's

Brief via electronic transmission, to Mr. Pennick’s attorney of record, Mr.

David W. Crawford, at dcrawford@crawfordcruz.com, on or before

October 29, 2015.




                                   ___________________________
                                   Giselle Horton
                                   Assistant Travis County Attorney




                                      19
