                                                                        ACCEPTED
                                                                    03-14-00334-CR
                                                                            7155412
                                                         THIRD COURT OF APPEALS
                                                                    AUSTIN, TEXAS
                                                               9/29/2015 5:10:21 PM
                                                                  JEFFREY D. KYLE
                                                                             CLERK


             CASE NO. 03-14-00334-CR
                                                    FILED IN
                                             3rd COURT OF APPEALS
            IN THE COURT OF APPEALS              AUSTIN, TEXAS
                                             9/29/2015 5:10:21 PM
            FOR THE THIRD DISTRICT             JEFFREY D. KYLE
                                                     Clerk

                AT AUSTIN, TEXAS
__________________________________________________

                TERAN PENNICK

                       VS.

                STATE OF TEXAS
__________________________________________________

      Appeal from the County Court at Law No. 6 of
                 Travis County, Texas
               Cause No. C1CR13200027
_________________________________________________

               APPELLANT’S BRIEF
__________________________________________________

       ORAL ARGUMENT NOT REQUESTED


                            David W. Crawford
                            State Bar No. 24031601
                            Crawford & Cruz, PLLC
                            P.O. Box 686
                            Austin, Texas 78767
                            Telephone (512) 795-2000
                            E-fax (512) 237-7792
                            dcrawford@crawfordcruz.com


                        i
                            NAMES OF ALL PARTIES

       The following is a complete list of all names and addresses of all parties to the
Trial Court‘s final judgment and the names and addresses of all trial counsel:

Appellant:                Teran Pennick

Appellate Counsel:        David W. Crawford
                          State Bar No. 24031601
                          Crawford & Cruz, PLLC
                          P.O. Box 686
                          Austin, Texas 78767
                          Telephone: (512)795-2000
                          E-fax: (512)237-7792

Trial Counsel:            Duke Hildreth
                          State Bar No. 24002281
                          Hildreth and Rueda
                          1301 Nueces St., Suite 101
                          Austin, Texas 78701
                          Telephone: (512)473-2272

Appellee:                 State of Texas

Counsel:                  David Escamilla
                          Travis County Attorney
                          P.O. Box 1748
                          Austin, Texas 78767
                          Telephone: (512)854-9415

Trial Court:              The Honorable Brandy Mueller
                          County Court at Law No. 6
                          P.O. Box 1748
                          Austin, Texas 78767
                          Telephone (512)854-9677



                                           ii
                                           TABLE OF CONTENTS

Names of all Parties ................................................................................ i

List of Authorities ...................................................................................iv-v

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

Issues Presented ...................................................................................... 2

Statement of Facts ................................................................................... 3

Summary of Argument ........................................................................... 4

Argument................................................................................................. 6

I.       THE TRIAL COURT ERRED BY ADMITTING PORTIONS OF A
         VIDEO TAPE OF STATEMENTS MADE BY THE DEFENDANT
         THAT WERE MORE PREJUDICIAL THAN PROBATIVE

II.      THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO SHOW
         THAT PROBABLE CAUSE EXISTED THAT APPELLANT
         OPERATED A MOTOR VEHICLE IN A PUBLIC PLACE WHILE
         INTOXICATED



Conclusion and Relief Requested ........................................................... 16

Certificate of Service .............................................................................. 17

Certificate of Compliance ………………………………………………...18




                                                              iii
                                             LIST OF AUTHORITIES

TEXAS CASES

Banda v. State, 890 S.W.2d 42 (Tex.Crim.App. 1994) . . . .. . . . . . . .. . . . . . . . . . . ..13

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2011) . . . . . . . . . . . . . ..12-13

Commander v. State, 748 S.W.2d 270 (Tex.App.-Houston [14th Dist.] 1988, no pet.) .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .15

Conner v. State, 67 S.W.3d 192 (Tex.Crim.App. 2001) . . . . . . .. . . . . . . . . . . . . . . . .6

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) . . . .. . . . . . . .. . . . . . . . . .. ..12

Fowler v. State, 65 S.W.3d 116 (Tex.App.-Amarillo 2001) . . . .. . . . . . . .. . . . . . ... 15

Harris v. State, 164 S.W.3d 775 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd.) .
. . . .. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..12

Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998) . . . .. . . . . . . .. . . . . . . . . . ..11

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) . . . .. . . . . . . .. . . . . . . . . . . .. 12

Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986) . . . .. . . . . . . .. . . . . .11

Maddox v. State, 682 S.W.2d 563 (Tex.Crim.App. 1985) . . . . . . . . . . . . . . . . . . .. . . 7

Malincote v. State, 548 S.W.2d 42 (Tex.Crim.App. 1972). . . . . . . . . . . . . . . . . . . . . .7

McFarland v. State, 845 S.W.2d 854 (Tex.Crim.App. 1992) . . . . . . . . . . . . . . . . . . . .6

McVickers v. State, 874 S.W.2d 662 (Tex.Crim.App. 1993) . . . . . . . . . . . . . . . . . . . . 7

Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) . . . .. . . . . . . .. . . . . . . . . ..12

Pugh v. State, 117 S.W. 817 (1909) . . . .. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .15

Salinas v. State, 163 S.W.3d 734 (Tex. Crim. App. 2005) . . . .. . . . . . . .. . . . . . . . . 11

                                                                  iv
Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986) . . . .. . . . . . . .. . . . . . . . . . 11



SUPREME COURT CASES


Jackson v. Virginia, 443 U.S. 307 (1979)……………………...………….12



STATUTES AND RULES


Tex. Penal Code 1.07(40)…………………………………………………………13

Tex. Penal Code 49.04……………………………………………………………13

Tex. R. Evid. 104 …………………………………………………………. . . . . . 7

Tex. R. Evid. 403…………………………………………………………….. . . . 6,




                                                v
                         STATEMENT OF THE CASE

      Appellant was charged with the offense of Driving While Intoxicated with a

Blood Alcohol Concentration of 0.15 or more by information filed September 13,

2013. (Cl. R. 11). The trial of the merits was heard by the jury beginning April

29, 2014. The jury rendered its verdict of Guilty as alleged in the information on

April 30, 2014. (R.R. IV 74). . . . The appellant elected to have his sentencing

determined by the court, and the appellant was sentenced on May 7, 2014. (R.R. V

6-7). This appeal follows.




                                       1
               ISSUES PRESENTED


I.    THE TRIAL COURT ERRED BY ADMITTING
      PORTIONS OF A VIDEO TAPE OF STATEMENTS
      MADE BY THE DEFENDANT THAT WERE MORE
      PREJUDICIAL THAN PROBATIVE

II.   THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO
      SHOW THAT PROBABLE CAUSE EXISTED THAT
      APPELLANT OPERATED A MOTOR VEHICLE IN A
      PUBLIC PLACE WHILE INTOXICATED




                      2
                           STATEMENT OF FACTS

      Appellant was arrested for the offense of Driving While Intoxicated on

January 1, 2013. (Cl. R. 5-7). Appellant was taken into custody at that time. (Cl.

R. 5-7).   Appellant was charged by information for the arrested offense on

September 13, 2013. (Cl. R. 11). On April 28, 2014, Appellant’s case was called

to trial before a jury. The jury rendered a verdict of Guilty as charged in the

information. (R.R. IV 74). The Appellant determined he would allow the court to

render the sentence in this case. (R.R. III 7). The appellant was sentenced to a

term of 1 year probated for a term of 2 years, along with other conditions, on May

7, 2014. (Cl. R. 44-47, 57-60). This appeal follows.




                                        3
                          SUMMARY OF THE ARGUMENT



      On the evening of December 31, 2012, and the early morning hours of

January 1, 2013, the Appellant drove a vehicle belonging to the mother of his

children from one party to another. (R.R. IV 14). After not returning in what was

deemed the appropriate amount of time, the owner of the vehicle and her niece

drove to the location the Appellant had gone to. (R.R. IV 15). When they arrived,

they found the Appellant and the vehicle in a ditch on private property adjacent to

the road, and the Appellant was attempting to drive the vehicle out of the ditch.

(R.R. IV 16). The police were called by the vehicle's owner. (R.R. IV 18). Soon

after the arrival of the officer, the officer on scene subdued the Appellant with a

taser and placed him into custody. (R.R. III 56-64).         While in custody, the

Appellant made a number of inflammatory statements that were captured by the

video recorder in the officer's vehicle. (R.R. III 73-78). A search warrant for

blood was obtained, and the Appellant's blood was determined to show a Blood

Alcohol Concentration of 0.15 or above. (R.R. III 68-70). The Appellant was

subsequently charged with Driving While Intoxicated with Blood Alcohol

Concentration of 0.15 or above. (Cl. R. 11).

      During the trial of this charge, the trial court allowed the full recording of

the Appellant's statements into evidence, over the objection of the Appellant's trial
                                         4
counsel. (R.R. III 73-78). Appellant's trial counsel argued that the statements were

more prejudicial than probative and should be excluded under Rule 403 of the

Texas Rules of Evidence. (R.R. III 73-78). After hearing argument from both the

State and the Appellant's trial counsel, the trial court determined it would allow the

admission of the entirety of the Appellant's statements. (R.R. III 73-78). The trial

court erred and abused its discretion in determining that the statements were more

probative than prejudicial. The State offered the full statement as evidence of the

Appellant's intoxication, but the relative merit of what the statements provided

regarding that issue weighed against the inflammatory nature of his statements and

the prejudicial effect they would have on the jury clearly should have resulted in

the statements not being admitted as evidence to the jury.

      After hearing evidence regarding the operation of the vehicle, and testimony

regarding the Appellant's alleged intoxication at different points in the evening, the

jury ultimately found the Appellant guilty of the offense as charged. However, the

evidence presented to the jury was not legally sufficient to sustain a verdict of

guilt. While at some point during the evening the Appellant did in fact operate the

vehicle in a public place, there was not sufficient evidence that he was intoxicated

at that time. At the point in time when the evidence is sufficient to show the

Appellant is intoxicated, the evidence is also clear that the vehicle being operated

is on private property and not in a public place. Therefore, the evidence that the
                                         5
Appellant operated a motor vehicle in a public place while intoxicated is not

legally sufficient.

                  ARGUMENT AND AUTHORITIES


I.            THE TRIAL COURT ERRED BY ADMITTING
              PORTIONS OF A VIDEO TAPE OF STATEMENTS
              MADE BY THE DEFENDANT THAT WERE MORE
              PREJUDICIAL THAN PROBATIVE


                          STANDARD OF REVIEW


             Rule 403 of the Texas Rules of Evidence provides that evidence may

 be excluded if relevant if its probative value is substantially outweighed by danger

 of unfair prejudice, confusion of the issues, or misleading the jury, or by

 consideration of undue delay, or needless presentation of cumulative evidence.

 Tex. R. Evid. 403. Relevant evidence may be excluded under Rule 403 only if its

 probative value is substantially outweighed by the danger of unfair prejudice.

 Under Rule 403, it is presumed that the probative value of relevant evidence

 exceeds any danger of unfair prejudice. McFarland v. State, 845 S.W.2d 854, 857

 (Tex.Crim.App. 1992), overruled on other grounds. The rule excludes evidence

 only when there is a clear disparity between the degree of prejudice of the offered

 evidence and its probative value.       Conner v. State, 67 S.W.3d 192, 202

 (Tex.Crim.App. 2001). The general rule for determining the admissibility of any
                                         6
type of evidence is whether the probative value of such evidence is outweighed by

the inflammatory nature of the evidence. Malincote v. State, 548 S.W.2d 42, 44

(Tex.Crim.App. 1972).

     The trial court is accorded broad discretion in deciding preliminary

questions concerning the admissibility of evidence.     McVickers v. State, 874

S.W.2d 662, 664 (Tex.Crim.App. 1993), superseded on other grounds; Tex. R.

Evid. 104(a). The trial court's ruling on the admission or exclusion of evidence

should not be disturbed without the record showing a clear abuse of discretion.

Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App. 1985).



                                    ARGUMENT

     Generally, the statements of a criminal defendant are not considered hearsay,

and are therefore admissible as evidence in the case against him or her. However,

the rules of evidence also allow for otherwise admissible evidence to be

determined to be more prejudicial than probative.       It is up to the court to

determine if the probative value of the evidence is outweighed by the prejudicial

and inflammatory nature of the evidence. The court must engage in balancing test

to determine both how prejudicial the evidence is, and how probative it is, and

then to balance the two relative values to determine whether the evidence should

be admitted.
                                       7
      In this case, the evidence in question is recorded statements made by the

Appellant after arrest while in the back of the police vehicle in question. 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. Included

within the inflammatory statements were potential admissions made by the

Appellant that he was in fact intoxicated.

     The State argued in this case that the inflammatory statements were

probative for showing the intoxication of the Appellant at the time of his arrest.

(R.R. III 73-78). There was no argument that they provided evidence of any of

the other elements of the offense, such as operating a vehicle or that the vehicle

was in a public place. The statements were therefore probative, according to the

State's own argument, as further evidence of the Appellant's intoxication.

     Appellant's trial counsel objected to the admission of these statements,

arguing that under Rule 403 of the Texas Rules of Evidence that whatever

probative value the statements had were far outweighed by the inflammatory and

prejudicial nature of the statements. (R.R. III 73-78). The trial counsel argued

that the probative value of the statements as further evidence of the Appellant's
                                        8
intoxication was more than outweighed by the nature of the comments and the

prejudicial effect they would likely have on the jury. (R.R. III 73-78). Counsel

opined that the statements were being offered more for the purpose of influencing

the jury's opinion of the Appellant than for any other evidentiary use. (R.R. III

73-78). Ultimately, the trial court ruled that the recorded statement would be

admitted into evidence and submitted to the jury in its totality, without redacting

any of the statements made by the Appellant. (R.R. III 73-78).

     To determine whether the trial court ruled appropriately, we must engage in

our own determination of the probative nature of the evidence and the prejudicial

nature of the evidence. Clearly, there is no argument that the statements would be

potentially very prejudicial in the minds of the jury. The Appellant's use of

expletives directed towards the arresting officer could not be found to be anything

other than inflammatory.      Whatever the actual purpose for introducing the

statements, it is clear that a very probable effect would be to effect the opinion of

the jury members of the Appellant..

            The next question, then, in making a determination is the actual

probative nature of the Appellant's statements. The State's stated rationale for

why they statements were more probative than prejudicial had to do with showing

his intoxication. However, the State had copious amounts of evidence beyond the

entirety of the statements to show that the Appellant was intoxicated. The State
                                        9
had evidence regarding the testing of the Appellant's blood.          The State had

testimony from the arresting officer on the scene, indicating that she believed that

the Appellant was intoxicated. The testimony of another witness at the scene

provided evidence of intoxication at a time immediately prior to the making of the

statements in question. In addition, portions of the video recording not containing

the inflammatory and prejudicial statements could also be used as evidence for

intoxication. There is no allegation that the nature of the Appellant's speech, such

as stumbling over words or having trouble speaking, was evidence of intoxication.

It is in fact that inflammatory language used by the Appellant that is alleged to be

evidence of intoxication.

     In looking at the entirety of the situation, the probative value of the full

statement to further show intoxication is very limited.           The State had a

multiplicity of ways that it could, and in fact did, introduce evidence of the

Appellant's intoxication. In light of all of the other evidence regarding that issue,

the inflammatory statements made by the Appellant do not rise to the level of

being particularly probative, especially in light of the clearly prejudicial and

inflammatory nature of what was said. The trial court abused its discretion in

admitting the full recording of the Appellant's statements after arrest, and this case

should therefore be reversed and remanded to the trial court for further

proceedings.
                                         10
                     ARGUMENT AND AUTHORITIES


II.           THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO
              SHOW THAT PROBABLE CAUSE EXISTED THAT
              APPELLANT OPERATED A MOTOR VEHICLE IN A
              PUBLIC PLACE WHILE INTOXICATED

                         STANDARD OF REVIEW

      In a sufficiency review, the appellate court reviews all evidence in the light

most favorable to the verdict and determine whether any rational trier of fact could

have found the essential elements of a crime beyond a reasonable doubt. Salinas v.

State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of

the credibility of the witnesses, is free to believe or disbelieve all or part of a

witness' testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).

The jury may reasonably infer facts from the evidence presented, credit the

witnesses it chooses to, disbelieve any or all of the evidence or testimony

proffered, and weigh the evidence as it sees fit. Sharp v. State, 707 S.W.2d 611,

614 (Tex. Crim. App. 1986). Reconciliation of conflicts in the evidence is within

the jury's discretion and such conflicts alone will not call for reversal if there is

enough credible evidence to support a conviction. Losada v. State, 721 S.W.2d

305, 309 (Tex. Crim. App. 1986). An appellate court may not reevaluate the
                                         11
weight and credibility of the evidence produced at trial and in so doing substitute

its judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.

Crim. App. 2000). Inconsistencies in the evidence are resolved in favor of the

verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). The appellate

court is not to engage in a second evaluation of the weight and credibility of

the evidence, but only ensure the jury reached a rational decision. Muniz v. State,

851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775,

784 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd.).



                                   ARGUMENT
      The jury in this case returned a verdict of guilty to the offense of

Driving While Intoxicated with a Blood Alcohol Concentration of 0.15 or

more. Included in the charge to the jury was a paragraph defining the

elements of the offense of Driving While Intoxicated, including definitions

of operation, public place, and intoxicated. (Cl.R. 36-37).

      Under Brooks v. State, the Texas Court of Criminal Appeals

restricted all sufficiency arguments to the standards of legal sufficiency

put forth in Jackson v. Virginia. 323 S.W.3d 893, 894-5 (Tex.Crim.App.

2011); 443 U.S. 307 (1979).         The appellate court, utilizing the Jackson v.

Virginia standard, is to consider all of the evidence in the light most favorable to
                                         12
the verdict and determine if a jury was rationally justified in finding guilt beyond

a reasonable doubt. Brooks, at 899. The ultimate question, then, is if the jury was

rationally justified in finding that all of the elements for the offense of Driving

While Intoxicated were met.

      The elements for the offense of Driving While Intoxicated are that a person

 commits an offense if the person is intoxicated while operating a motor vehicle

 in a public place. Tex. Penal Code Ann. § 49.04(a). Public place is further

 defined in the Penal Code as any place to which the public or a substantial group

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

 the common areas of schools, hospitals, apartment houses, office buildings,

 transport facilities, and shops. Tex. Penal Code Ann. § 1.07(40). Determining

 whether an area is private or public requires asking whether the public or a

 substantial group of the public has access to the place in question. Banda v.

 State, 890 S.W.2d 42, 52 (Tex.Crim.App. 1994).

      The evidence presented in this case shows that the Appellant certainly

 operated a motor vehicle in a public place at points during the evening leading up

 to his arrest. The Appellant was clearly in a public place when he drove to

 location on New Katy Lane. What is not clearly shown is that the Appellant was

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

 The State presented testimony from one attendee at the party that she believed
                                         13
that the Appellant was intoxicated when he left to go the New Katy location.

(R.R. III 28-29). However, testimony was also presented that the owner of the

vehicle in question did not believe that the Appellant was intoxicated, and would

not have allowed him to drive her vehicle if she believed he was. (R.R. IV 47).

The physical evidence regarding the Appellant's intoxication does not provide

any indication one way or the other that he was intoxicated at the time he

initially drove the vehicle. The evidence presented on the issue of intoxication

during the clear operation in a public place does not rise to the level of beyond a

reasonable doubt and therefore is not legally sufficient he committed the offense

of Driving While Intoxicated.

     The next question regarding operation is during the operation of the car

while it is in the ditch. There is no disagreement that by the time the officer

arrived on scene that the Appellant was intoxicated. The question, then, is

whether the location of the car at that point is in fact a public place as defined by

Texas law. The car was not in a street, highway, common area of any school,

hospital, apartment house, shop, office building or transport facility. The ditch is

clearly on an individual's private property. There is no evidence indicating that

the location where the vehicle was, at the time that the Appellant was operating

it, was not on private property. Texas has long held that a private residence

cannot be made a public place unless it is made public by being thrown open to
                                         14
access to the public Pugh v. State, 117 S.W. 817, 818 (1909). A private

residence is not a public place, nor is a driveway. Fowler v. State, 65 S.W.3d

116, 119 (Tex.App.-Amarillo 2001); Commander v. State, 748 S.W. 2d              270,

271 (Tex.App.-Houston [14th Dist.] 1988, no pet.).

     While the Appellant may very well have been intoxicated while he was

operating the vehicle in the ditch, the ditch is clearly not a public place. The

ditch was on private property, and was clearly not open to the public, despite its

proximity to the roadway. The evidence is not sufficient to establish that the

location of the car at the time the officer arrived on scene is a public place. Nor

is the evidence sufficient to show that the Appellant was intoxicated at the time

he clearly was operating the vehicle in a public place. The evidence presented in

this trial was not legally sufficient to show that there was probable cause to arrest

the Appellant, and therefore the evidence was not legally sufficient to sustain a

verdict of guilty in this case.




                                         15
                      CONCLUSION AND PRAYER

      Wherefore, Appellant prays that the Court of Appeals will grant

leave to file the foregoing brief on appeal, and that the court will

review the record of trial and grant any relief to which Appellant may

be entitled.




                                      RESPECTFULLY SUBMITTED,



                                      /s/ David W. Crawford
                                      David W. Crawford
                                      State Bar No. 24031601
                                      Crawford and Cruz PLLC
                                      P.O. Box 686
                                      Austin, Texas 78767
                                      Telephone (512) 795-2000
                                      Telefacsimile (512) 237-7792
                                      Email: dcrawford@crawfordcruz.com
                                      Attorney for Appellant




                                     16
                       CERTIFICATE OF SERVICE

      As Attorney of Record for Appellant, I do hereby Certify by my signature

above that a true and correct copy of the above and foregoing document was this

date provided to the Attorney for the State, David Escamilla, Travis County

Attorney, P.O. Box 1748, Austin, Texas 78767, and to the Appellant, Teran

Pennick, 209 Townes Street, Manor, Texas 78653, Via Certified Mail, Return

Receipt Requested.



  Date:     September 29, 2015




                                      17
                          Certificate of Compliance

      As Attorney of Record for Appellant, I do hereby Certify by my signature

that this brief contains 2,965 words, in accordance with Tex. Rules of Appellate

Procedure 9.4(i).

   Date:    September 29, 2015



                                        /s/ David W. Crawford
                                        David W. Crawford
                                        State Bar No. 24031601
                                        Crawford and Cruz PLLC
                                        P.O. Box 686
                                        Austin, Texas 78767
                                        Telephone (512) 795-2000
                                        Telefacsimile (512) 237-7792
                                        Email: dcrawford@crawfordcruz.com
                                        Attorney for Appellant




                                       18
