                                                                                                                                                                              ACCEPTED
                                                                                                                                                                         03-15-00079-CR
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                                No. 03-15-00079-CR
                                      IN THE
                          THIRD COURT OF APPEALS
                                     at AUSTIN
                         DAVID KENT THACKER, JR.,


                                        VS.


                                STATE OF TEXAS
                                      Appellee

                  Appealed from the 207th District Court of
            Comal County, Texas, Trial Court Case No. CR2013-096
      __________________________________________________________

                    IDENTITY OF PARTIES & COUNSEL

      David Kent Thacker, Jr. certifies that the following is a complete list of the

parties, attorneys and any other person who has any interest in the outcome of this

lawsuit:

David Kent Thacker, Jr., Thacker, Last Known Address: 3005 W. San Antonio
Street, New Braunfels, Texas 78130, telephone number: (830) 620-3400; fax
number: (830) 608-2082.

Gerald C. Moton, Moton Law Office, PMB 248, San Antonio, Texas 78216, Trial
Attorney, telephone number: (210) 410-8153, fax number: (210) 568-4389.

Sammy McCrary, Chief Felony Prosecutor for Appellee, Criminal District Attorney
of Comal County, Texas, 150 N. Seguin Avenue, Ste 307, New Braunfels, TX
78130-5122, telephone number: (830) 221-1300; fax number: (830) 620-5599.

                                          i
Daniel Palmitier, Assistant Attorney for Appellee, Criminal District Attorney of
Comal County, Texas, 150 N. Seguin Avenue, Ste 307, New Braunfels, TX 78130-
5122, telephone number: (830) 221-1300; fax number: (830) 620-5599.

Jacqueline H. Doyer, Assistant Attorney for Appellee, Criminal District Attorney of
Comal County, Texas, 150 N. Seguin Avenue, Ste 307, New Braunfels, TX 78130-
5122, telephone number: (830) 221-1300; fax number: (830) 620-5599.

Jennifer Anne Owens Thrap, Attorney for Appellee, Criminal District Attorney of
Comal County, Texas, 150 N. Seguin Avenue, Ste 307, New Braunfels, TX 78130-
5122, telephone number: (830) 221-1300; fax number: (830) 620-5599.

Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046, Austin, Texas
78711, telephone number: (512) 463-1660; Fax number: (512) 463-5724.

Honorable Bruce Boyer, Judge 22nd Judicial District, Trial Judge, 150 N. Seguin,
Suite 317, New Braunfels, TX 78130, (830) 221-1270, Fax: (830) 608-2030.




                                        ii
                                       TABLE OF CONTENTS

                                                                                                     PAGE

IDENTITY OF PARTIES & COUNSEL.................................................                       i

TABLE OF CONTENTS.….....................................................................             iii

INDEX OF AUTHORITIES...........................................………..............                     vi

STATEMENT OF THE CASE.................................................................               2

A. Nature of the Case.…...........................................................................   2

B. Course of Proceeding...........................................................................   2

C. Trial Court's Disposition of the Case .................................................           4

STATEMENT REGARDING ORAL ARGUMENT..............................                                      5

ISSUES PRESENTED FOR REVIEW...................................................                       6

STATEMENT OF THE FACTS...............................................…...........                    7

A. Officer Jason Tucker..........................................................….............      7

B. Officer Terry Flugrath..........................................................…............     10

SUMMARY OF THE ARGUMENT.......................................................                       12

ARGUMENT..............................................…….....................................        14

        POINT OF ERROR NO. ONE
        THE TRIAL COURT ERRED IN FAILING TO GRANT
        THACKER'S MOTION TO SUPPRESS ANY AND ALL
        EVIDENCE STEMMING FROM HIS DETENTION WHICH
        WAS MADE WITHOUT A WARRANT AS THE OFFICER


                                                        iii
     DID NOT HAVE AN OBJECTIVE BASIS
     FOR THE DETENTION...............................................................                        14
A.   Standard of Review........................................................................              14

B.   Applicable Law...............................................................................           15

C.   Care-taking Function Did Not Justify Continued Traffic Stop
     Investigation......................................................................…...........         17

D.   Analysis.............................................................................................   19

     POINT OF ERROR NO. TWO
     THE TRIAL COURT ERRED IN FAILING TO
     GRANT THACKER'S MOTION TO SUPPRESS
     ORAL STATEMENTS AS THEY WERE CUSTODIAL
     INTERROGATIONS THAT VIOLATED THE LAW................                                                    21
A.   Standard of Review........................................................................              21

B.   Custodial Interrogation..................................................................               22

     POINT OF ERROR NO.THREE
     WHETHER THE EVIDENCE WAS LEGALLY
     INSUFFICIENT TO CONVICT THACKER OF
     “OPERATING” A MOTOR VEHICLE...................................                                          24

     POINT OF ERROR NO. FOUR
     THE EVIDENCE WAS LEGALLY INSUFFICIENT
     TO CONVICT THACKER OF OPERATING A
     MOTOR VEHICLE IN A “PUBLIC PLACE”............................                                           29

     POINT OF ERROR NO. FIVE
     THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
     CONVICT THACKER OF OPERATING A MOTOR
     VEHICLE WITHOUT NORMAL USE OF FACILITIES.........                                                       32



                                                         iv
        POINT OF ERROR NO. SIX
        WHETHER THACKER'S LIFE SENTENCE WAS CRUEL
        AND UNUSAL PUNISHMENT...........................................                         34
PRAYER ..............................................................................…….......   36

CERTIFICATE OF SERVICE............................................................               37

CERTIFICATE OF COMPLIANCE.......................................................                 38




                                                         v
                                   INDEX OF AUTHORITIES
                                                                                                 PAGE
CASES

Tamez v. State,
   11 S.W. 3d 198 (Tex.Crim.App. 2000)..........................................                  3

Robles v. State,
      85 S.W.2d 211, 212 (Tex. Crim. App. 2002)...............................                    4

Miranda v. Arizona,
     384 U.S. 436, 479 (1966)................................................................     12, 21
                                                                                                   24
Guzman v. State,
    955 S.W.2d 85, 89 (Tex. Crim. App. 1997)...............................                       14, 20
                                                                                                   21
Ornelas v. United States,
     517 U.S. 690, 699(1996)..............................................................        14

State v. Mendoza,
       365 S.W.3d. 666, 670 (Tex. Crim. App. 2012)..........................                      15

State v. Castleberry,
       332 S.W.3d 460, 465 (Tex. Crim. App. 2011)...........................                      15, 17

State v. Sheppard,
       271 S.W. 3d 281, 288 (Tex. Crim. App. 2008)............................                    15

Amador v. State,
   221 S.W. 3D 666, 672 (2007)...........................................................         15

Terry v. Ohio,
      392 U.S. 1, 28 (1968)...................................................................    16, 22

Derichsweiler v. State,
      348 S.W.3d 906, 914 (Tex. Crim. App. 2011).............................                     16



                                                      vi
Hiibel v. Sixth Judicial Dist. Court,
       542 U.S. 177, 185 (2004).............................................................   16

York v. State,
      342 S.W.3d 528, 536 (Tex. Crim. App. 2011)..............................                 16, 17
                                                                                                20
Martinez v. State,
      348 S.W.3d 919, 923 (Tex. Crim. App. 2011)..............................                 16

United States v. Arvizu,
      534 U.S. 266, 274 (2002)..........................................................       16

Gamble v. State,
    8 S.W.3d 452, 454
     (Tex. App.-Houston [1st Dist.] 1999, no pet.)............................                 17, 20

Mincey v. Arizona,
     437 U.S. 385, 390 (1978)...........................................................       17

Cady v. Dombrowski,
     413 U.S. 433 (1973)....................................................................   17,18

Wright v. State,
     7 S.W.3d 148,151 (Tex. Crim.App.1999)........................................             18, 19

Corbin v. State,
     85 S.W.3d 272, 277 (Tex. Crim.App.2002)..................................                 18

Gonzales v. State,
    369 S.W.3d 851, 855 ftn 18 (Tex.Cr.App. 2012) ............................                 19

Dowthitt v. State,
     931 S.W.2d 244, 263 (Tex.Crim.App. 1996)............................                      21, 23

Ripkowski v. State,
     61 S.W/3d 378, 381-52 (Tex.Crim.App. 2001)...........................                     21



                                                      vii
Riley v. United States,
       923 A.2d 868, 883-84 (D.C.App. 2007),
       cert. denied, 555 U.S. 830, (2008).........................................             22

Abernathy v. State,
     963 S.W.2d 822, 824 n. 4
     (Tex.App.-San Antonio 1998, pet. ref'd). ...................................              22

Berkemer v. McCarty,
    468 U.S. 420, 439 (1984)...............................................................    22, 23

California v. Beheler,
      463 U.S. 1121, 1125 (1983).........................................................      23

Stansbury v. California,
    511 U.S. 318, 324 (1994)................................................................   24

Jackson v. Virginia,
      443 U.S. 307, 319(1979)............................................................      25
Anderson v. State,
     416 S.W.3d 884, 888 (Tex. Crim. App. 2013)...........................                     25
Brooks v. State,
     323 S.W.3d 893, 899 (Tex. Crim. App. 2010)............................                    25
Carrizales v. State,
      414 S.W. 3d 737, 742 (Tex. Crim. App. 2013)............................                  25

Hooper v. State,
    214 S.W. 3d 9, 13 (Tex. Crim. App. 2007). ...............................                  25

Wicker v. State,
     667 S.W.2d 137, 143 (Tex. Crim. App. 1984)............................                    25

Matson v. State,
      819 S.W.2d. 830, 846 (Tex. Crim. App.1991).............................                  25

Fuentes v. State,
      991 S.W.2d 267, 271 (Tex. Crim. App. 1999).............................                  25

                                                     viii
Sharp v. State,
      707 S.W2d 611, 614 (Tex. Crim. App. 1986)...............................         26

Turro v. State,
      867 S.W.2d 43,47 (Tex. Crim. App. 1993)...................................       26

McDuff v. State,
     939 S.W.2d 607, 614 (Tex. Crim. App. 1997).............................           26

Kirsch v. State,
      357 S.W.3d 645, 650-51 (Tex. Crim. App. 2012).........................           26

Denton v. State,
     911 S.W.2d 388, 389 (Tex. Crim. App. 1995)...............................          26

Barton v. State,
      882 S.W.2d 456 (Tex. App.—Dallas 1994, no pet.).....................              27, 28

Dornbusch v. State,
     262 S.W.3d 432 (Tex. App.—Fort Worth 2008, no pet.)..............                 28

Reynolds v. State,
     744 S.W.2d 156 (Tex. App.—Amarillo 1987, pet. ref’d) ............                 28

Pope v. State,
      802 S.W.2d 418 (Tex. App.—Austin 1991, no pet.).....................             28

Hernandez v. State,
     773 S.W.2d 761 (Tex. App.—San Antonio 1989, no pet.)...........                   28

Hearne v. State,
     80 S.W.3d 677
     (Tex. App.—Houston [1st Dist.] 2002, no pet.)............................         28

Shaub v. State,
     99 S.W.3d 253, 256
     (Tex.App.-Fort Worth 2003, no pet.)............................................   29


                                                 ix
Loera v. State,
      14 S.W.3d 464, 467 (Tex.App.-Dallas 2000, no pet.)...............                  30, 31
                                                                                         32
State v. Nailor,
       949 S.W.2d 357
        (Tex.App.-San Antonio 1997, no pet.)..…................................          30, 31
                                                                                         32
Holloman v. State,
     No. 11-95-275-CR, 1995 WL 17212433
     (Tex.App.—Eastland 1995).…...................................................       30

In re W.T.O.,
      No. 03-01-00630-CV,
       2002 Tex. App. LEXIS 8214, at *7
       (Austin Nov. 21, 2002, no pet. h.).............................................   30

Kapuscinski v. State,
     878 S.W.2d 248, 250
     (Tex.App.-San Antonio 1994, pet. ref'd)....................................         30

Thibaut v. State,
      782 S.W.2d 307, 309,
     (Tex.App.-Eastland 1989, no pet.) .............................................     30

Cornealius v. State,
     900 S.W.2d 731, 734 (Tex.Crim.App. 1995)............................                31

Commander v. State,
    748 S.W.2d 270
    (Tex. App.-Houston [14th Dist.] 1988, no writ)......................                 31

Fowler v. State,
     65 S.W.3d 116 (Tex.App.—Amarillo 2001, no pet.)................                     32

Findlay v. State,
      9 S.W.3d 397, 400
       (Tex.App.-Houston [14th Dist.] 1999)......................................        32


                                                    x
Stoutner v. State,
      36 S.W.3d 716, 721
       (Tex.App.-Houston [1st Dist.]2001, pet. ref'd).........................                 33, 34

Weaver v. State,
     721 S.W.2d 495, 498
      (Tex.App.-Houston [1st Dist.] 1986, pet. ref'd)........................                  33, 34

Scillitani v. State,
       297 S.W.3d 498
        (Tex.App.-Houston [14th Dist.] 2009)......................................             33

Graham v. Florida,
     560 U.S. 48, 59-60 (2010)..........................................................       34

Ewing v. California,
     538 U.S. 11 (2003).....................................................................   34

Harmelin v.Michigan,
    501 U.S. 957 (1991)....................................................................    34

Solem v. Helm,
     463 U.S. 277 (1983)....................................................................   34

Rummel v.Estelle,
    445 U.S. 263 (1980)..................................................................      34, 35

Winchester v. State,
     246 S.W.3d 386, 390-91
      (Tex. App.-Amarillo 2008, pet. ref'd) .......................................            35

Vrba v. State,
      69 S.W. 3D 713, 716, 724-725 …...............................................            35

Davidson v. State,
    03-13-00708-CR
   (Tex.App.-Austin 8-1-2014)(unpublished).....................................                35


                                                      xi
Harris v. State,
   204 S.W.3d 19, 29
    (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd)......................                         35

Hicks v. State,
    15 S.W.3d 626, 632
    (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd).......................                        35

Nunn v. State, 14-14-00704-CR
   (Tex.App.-Houston [14th Dist.] 4-9-2015) (unpublished).....….....                                35

                              UNITED STATES CONSTITUTION

Fourth Amendment to the United States Constitution.........................                         15, 16
                                                                                                    17, 18
United States Constitution.....................................................................     15,17

Fifth Amendment to the United States Constitution............................                       22

U.S. Const. amend VIII.........................................................................     34

                                        FEDERAL STATUTES

None
                                      TEXAS CONSTITUTION
None
                                           STATE STATUES

Tex. Pen. Code § 49.04...........................................................................     22, 32

Tex. Pen. Code Ann § 49.04(a)(West Supp. 2013)................................                        26

Tex. Pen. Code Ann § 49.01(2)(West Supp. 2013)................................                       26

Tex. Pen. Code Ann § 1.07(a)(40)..........................................................           29



                                                        xii
                                               STATE RULES

Tex.R.App. P. 9.4(e).................................................................................    38

Tex.R.App. P. 9.4(i)..................................................................................   38

Tex.R.App. P. 9.4(i)(1).............................................................................     38

                                           MISCELLANEOUS

Black's Law Dictionary 13 (7th ed. 1999)...................................................              31

Senate Criminal Justice Comm., Bill Analysis,
   Tex. S.B. 35, 75 th Leg., R.S. (1997)...................................................              33




                                                         xiii
                                No. 03-15-00079-CR
                                       IN THE
                           THIRD COURT OF APPEALS
                                      at AUSTIN
                          DAVID KENT THACKER, JR.,
                                         VS.
                                 STATE OF TEXAS
                                       Appellee

                 Appealed from the 207th District Court of
           Comal County, Texas, Trial Court Case No. CR2013-096
     __________________________________________________________
     __________________________________________________________
        DAVID KENT THACKER, JR., (hereinafter referred to as “ “Thacker”
files his brief. Appellee, State of Texas, will be referred to as appellee.)




                                           1
                           STATEMENT OF THE CASE1

A.     Nature of the Case

       Thacker appeals from a conviction for a third degree felony enhanced to

habitual driving while intoxicated offense. (CR.6-8, 423). It was alleged that on

or about the 15th day of September, 2012 that Thacker operated a motor vehicle in

a public place while intoxicated and that prior to the commission of this offense

that he had been legally convicted two or more times of offenses relating to the

operating of motor vehicles while intoxicated. (CR.6-8).             Thacker pleaded not

guilty. (CR. 25). The jury found Thacker guilty of a third degree felony enhanced

to habitual driving while intoxicated offense, and the trial court on the jury's

recommendation assessed punishment at confinement for Life. ( CR. 413).

B.     The Course of Proceedings

       On March 13, 2013 Thacker was indicted as a third degree felony enhanced

to habitual driving while intoxicated offense. (CR. 6-8). It was alleged that on or

about the 15th day of September, 2012 that Thacker operated a motor vehicle in a

public place while intoxicated and that prior to the commission of this offense that

he had been legally convicted two or more times of offenses relating to the
1Undersigned counsel has prepared this brief in reliance on the electronic record on appeal,
which contains the Clerk's Record and any reference to a document filed in this case, or to a
portion of these documents will be made by “CR” page number, or numbers, and the trial court
transcript, with reference to this document or portion thereof being made in the following
manner: “TR. [volume number]:[page number].”

                                             2
operating of motor vehicles while intoxicated. Id.

       New Braunfels Police Department Officer       Flugrath after arresting Thacker

for driving while intoxicated requested that Thacker give a voluntary blood

sample, which Thacker refused to provide. (TR. Vol. 4, 109). Acting on the

response from dispatch that Thacker had at least two previous convictions for

driving while intoxicated and took Thacker to Christus Santa Rosa New Braunfels

for a warrantless blood draw. (TR. Vo. 2, 42-43 ).

       On July 30, 2013 Thacker waived arraignment and entered a plea of not

guilty to the indictment. (CR. 80).

      On October 10, 2013 the trial court denied Thacker's motion to suppress

his arrest and his motion to suppress his warrantless blood draw. (CR. 432). On

January 23, 2015, on reconsideration, the trial court granted Thacker's motion to

suppress the warrantless blood draw results. (CR. 146).

      On August 14, 2014 Thacker elected to have punishment assessed by the

jury. (CR.143).

      Thacker stipulated to the jurisdictional priors pursuant to Tamez v. State,

11 S.W. 3d 198 (Tex.Crim.App. 2000), and on the condition that if he stipulated

to the jurisdictional prior convictions, the State not only would not have to present

evidence of those prior convictions during the guilt phase of trial but would barred


                                          3
from doing so. Robles v. State, 85 S.W.3d 211, 212 (Tex.Crim.App. 2002) ( TR.

Vol. 4,8-9)2

C.    Trial Court's Disposition of the Case

      On the trial court on the jury's recommendation assessed punishment at

confinement     for Life     in the Texas Department of Corrections-Institutional

Division. (TR. Vol. 5,76). A Notice of Appeal was filed on January 30, 2015.

(CR. 423).




2 Namely, Thacker stipulated to previous driving while intoxicated offenses as follows: 1. In
  Cause Number 93-CR-113, in the County Court at Law of Comal County, Texas on or about
  the 18th day of March, 1993; and 2. In Number 9723-95, in the County Court of Kendall
  County, Texas,on or about the 19th day of October, 1995.” ( TR. Vol. 8, 39)

                                             4
              STATEMENT REGARDING ORAL ARGUMENT

       Thacker respectfully requests oral argument. Oral discussion of the facts

and the applicable precedent would benefit the Court.




                                        5
             ISSUES PRESENTED FOR REVIEW

    POINT OF ERROR NO. ONE
    WHETHER THE TRIAL COURT ERRED IN FAILING TO
    GRANT THACKER'S MOTION TO SUPPRESS ANY AND
    ALL EVIDENCE STEMMING FROM HIS DETENTION
    WHICH WAS MADE WITHOUT A WARRANT AS THE
    OFFICER DID NOT HAVE AN OBJECTIVE BASIS FOR THE
    DETENTION
    POINT OF ERROR NO. TWO
    WHETHER THE TRIAL COURT ERRED IN FAILING TO
    GRANT THACKER'S MOTION TO SUPPRESS ORAL
    STATEMENTS AS THEY WERE CUSTODIAL
    INTERROGATIONS THAT VIOLATED THE LAW.
    POINT OF ERROR NO. THREE
    WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT
    TO CONVICT THACKER OF “OPERATING” A MOTOR
    VEHICLE

    POINT OF ERROR NO. FOUR
    WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT
    TO CONVICT THACKER OF OPERATING     A MOTOR
    VEHICLE IN A “PUBLIC PLACE”.

    POINT OF ERROR NO. FIVE
    WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT
    TO CONVICT THACKER OF OPERATING      A MOTOR
    VEHICLE WITHOUT NORMAL USE OF FACILITIES.
`
    POINT OF ERROR NO. SIX
    WHETHER THACKER'S LIFE SENTENCE WAS CRUEL
    AND UNUSAL PUNISHMENT.




                             6
                            STATEMENT OF FACTS

A.     Officer   Jason Tucker

      On Saturday September 14, 2012 at 11:15 p.m.           Officer   Jason Tucker

(“ Officer Tucker”) was dispatched to the 1400 block of FM 306 in reference to a

stalled vehicle that was parked near the railroad tracks. Upon arrival in the area he

located a 1990 Maroon Cadillac parked parallel along the railroad tracks. (TR. Vol.

4 55). The vehicle was approximately 20 to 25 feet off the roadway. Id. Officer

Tucker initially had difficulty finding the vehicle because it was not close to the

roadway “where normally a vehicle would be....” (TR. Vol. 4, 56). The vehicle

was not on top of the tracks but it was parked so close to the tracks a passing train

would have struck the vehicle. (TR. Vol.4, 57). The property was a part of the

Union Pacific railroad easement. (TR. Vol. 4, 69). Officer Tucker testified that

although he had been in the area generally before, he had never seen other

vehicles on that railroad easement. Id.

      Officer Tucker had police dispatch contact the Union Pacific railroad

company to stop all trains on that track until the vehicle could be moved to a safer

location. (TR. Vol. 59). The vehicle was running.(TR. Vol. 55).

       It was dark and there were no other lights other than those of Officer

Tucker's patrol car. (TR. Vol. 4, 68). Officer Tucker turned his patrol car around


                                          7
and shined his lights on the vehicle. (TR. Vol. 4, 57). Officer Tucker didn't see any

headlights or brake lights illuminated on the vehicle. (TR. Vol. 4, 67). Officer

Tucker testified that based on his training and experience if Tucker had had his

foot on the brake petal the brake lights would have been on. (TR. Vol. 4, 68).

Additionally, the vehicle was parked. (TR. Vol. 4, 68). Thacker cut the engine off

after being awakened by Officer Tucker. Id.

      Officer Tucker had to step over the rail because Thacker's vehicle was so

close to the railway. Id Officer Tucker testified that he “... looked over to the

driver's side of the vehicle; saw a person slumped over, sound asleep, in – inside

the vehicle. I was able to shake, bang on the window, yell, and scream, finally get

him alert enough to make contact with him and see what was going on.” Id. Officer

Tucker testified that “It felt like an eternity because I'm worried about him getting

hit by a train, but probably, I'd say, no less than two minutes; maybe one to two

minutes total” to get the male subject, later identified as Thacker, out of the

vehicle. (TR. Vol. 4, 57).

      Thacker had a hard time putting on a flip-flop just to get out of the car. (TR.

Vol. 4, 58). Upon Thacker exiting the vehicle Officer Tucker testified that he

noticed Thacker was very unsteady on his feet and that he had to assist him by

holding his arm to help him maintain his balance. (TR. Vol. 4, 58). Officer Tucker


                                          8
brought Thacker over to the front of his patrol car which was away from the

railroad track. (TR. Vol. 4, 58)

      At that time Officer Tucker     believed he was dealing with a person that

would lead to a DWI charge or an intoxication investigation. (TR. Vol. 4, 59). As

Officer Tucker spoke with Thacker        he reported smelling a     strong odor of

alcoholic beverage coming from inside the vehicle. Id. Thacker was very sluggish

with his reactions, bloodshot eyes, kind of glassed over and slurred speech. (TR.

Vol. 4, 59). Once a second officer, Officer Terry Flugrath arrived, conducted field

sobriety testing and placed Thacker under arrest, Officer Tucker conducted an

inventory of Thacker's car. ((TR. Vol. 4, 64).

      Officer Tucker had never met Thacker before. (TR. Vol. 4, 71). He knew

nothing about his physical or mental condition. (TR. Vol. 4,71.). Thacker was able

to provide his driver's license number by memory. (TR. Vol. 4,72). Thacker was

also able to provide his Zip Code, birthdate and Social Security number. Id.

      During a post-arrest inventory of Thacker's vehicle Officer Tucker located

a Calypso Spiced Rum bottle in the front passenger side floor board. The bottle of

rum had been open and was 3/4 full. (TR. Vol. 4, 71). Officer Tucker did not

make a determination if, or when Thacker had drank any of the bottle's contents.

(TR. Vol. 4, 71).


                                          9
B.     Officer Terry Flugrath

     In the late hours of September 14 th while on patrol, Officer Terry Flugrath

(“Officer Flugrath”) was dispatched to the 1400 block of FM 306 to assist K-9

Officer Tucker, who had been dispatched to the area for a stalled          vehicle.

(TR. Vol. 4, 88). Upon his arrival, he observed Officer Tucker speaking to a male,

who from a distance appeared to be disoriented. Id. After speaking to Officer

Tucker briefly Officer Flugrath made contact with Thacker. Id. Officer Flugrath

set up the camera to document his interactions with the Thacker. (TR. Vol. 4, 90).

      Officer Flugrath directed Thacker to join him in front of his police vehicle.

Id. Officer Flugrath determined there was a strong order of alcohol coming from

Thacker's breath and person. I d . Officer Flugrath opinion was because the

vehicle's motor had been running “Basically, that would put him in control of the

vehicle.” (TR. Vol. 4,100). Officer Flugrath then sought to have Thacker perform

three National Highway Traffic Safety Administration standardized test- the

horizontal gaze nystagmus, the walk-and-turn, and the one-leg stand. (TR. Vol. 4,

116). Officer Flugrath also sought to have Thacker perform two non standardized

test- putting his head back and the ABC's. (TR. Vol. 4, 118). Officer Flugrath had

no medical training. Id.

      Officer Flugrath admitted that there were 24 National Highway


                                        10
Transportation Association driving clues that are predictors of DWI. (TR. Vol. 4,

120). None of these clues where part of his judgment in arresting Thacker for

driving while intoxicated. (TR. Vol. 4, 126). Officer Flugrath did not know

whether Thacker had had anything to drink while he was parked parallel to the

railroad track. Id. Officer Flugrath admitted with respect to the horizontal gaze

nystagmus test “you can't look at their eyes and tell what their blood level is going

to be” and that he did not known what level of blood alcohol eye jerkiness began.

(TR. Vol. 4, 134).

      When Officer Flugrath was asked whether he made a determination as to

when Thacker had consumed alcohol, he stated “I believe the one answer he gave

me was he'd gotten to his friend's around – at one time he said 10:30; at one time

he said 9:30. So somewhere in that time frame between 9:30 and – or after 10:30

somewhere in that time frame. He never would exactly say. This is what I had at

this time.” (TR. Vol. 4, 126). Further Officer Flugrath did not know whether or not

Thacker had anything to drink while he was parked parallel to the railroad track.

Id.




                                         11
                       SUMMARY OF THE ARGUMENT

      The trial court erred in failing to grant Thacker's motion to suppress any and

all evidence stemming from his detention which was made without a warrant as

the officer did not have objective basis for the detention. The trial court made few

if any findings of fact, therefore Officer Tucker and/or Officer Flugrath's

determination of reasonable suspicion should be reviewed de novo on appeal, with

deference to judges' findings of historical facts.

      The trial court erred in failing to grant Thacker's motion to suppress oral

statements as they were custodial interrogations that violated the law. At the time

of removing Thacker from his vehicle Officer Tucker believed he was dealing

with a person that would lead to a DWI charge or an intoxication investigation.

(TR. Vol. 4, 59). Thus the “care-taking” function terminated and Thacker should

have been read his Miranda rights before further questioning continued.

      The evidence was legally insufficient to convict Thacker of “operating” a

motor vehicle. Given the totality of the circumstances the State failed to

demonstrate that Thacker took action to affect the functioning of his vehicle in a

manner that would enable the vehicle’s use. Further, the evidence was legally

insufficient to     convict Thacker     of operating   a motor vehicle in a “public

place”. Thacker's vehicle was approximately 20 to 25 feet off the roadway. Id.


                                          12
Officer Tucker initially had difficulty finding the vehicle because it was not close

to the roadway “where normally a vehicle would be....” (TR. Vol. 4, 56). Nor did

the State provide     sufficient evidence that the remote railway easement was

normally used by the public as would be the case with a parking lot, military base,

gated community or other area that could be associated with the purpose of the

Texas driving while intoxicated law -protecting the safety of those traveling on the

roads by prohibiting intoxicated persons from driving a vehicle.

      The evidence was legally insufficient to     convict Thacker of operating a

motor vehicle without normal use of facilities. In Texas every person who drinks

alcoholic beverages will not automatically become intoxicated under our driving

while intoxicated (DWI) statute. Here the law officers' knew nothing of Thacker's

mental of physical condition without any alcoholic beverages. Further the law

officers did not know whether Thacker had consumed alcoholic beverages while

“parked” along the railroad.

        Lastly, Thacker's life sentence was cruel and unusual punishment. An

objective comparison of the gravity of the offense against the severity of the

sentence reveals the sentence to be extreme. Alcoholism is an addiction. This is not

a crime of violence. Additionally, the life sentence does not further the purposes of

the Texas DWI law.


                                         13
                                   ARGUMENT

      POINT OF ERROR NO. ONE
      THE TRIAL COURT ERRED IN FAILING TO GRANT
      THACKER'S MOTION TO SUPPRESS       ANY AND ALL
      EVIDENCE STEMMING FROM HIS DETENTION WHICH
      WAS MADE WITHOUT A WARRANT AS THE OFFICER
      DID NOT HAVE OBJECTIVE BASIS FOR THE DETENTION

      The trial court abused its discretion in denying Thacker's motion to suppress

because Officer Flugrath did not have sufficient reasonable suspicion to believe

Thacker had committed a traffic violation and was without an objective reason for

initiating the driving while intoxicated tests on Thacker.

A.    Standard of Review

       This Court     reviews a motion to suppress evidence under a bifurcated

standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial

judge's determinations of historical facts and mixed questions of law and fact that

rely on credibility are granted almost total deference when supported by the record.

Id. But when mixed questions of law and fact do not depend on the evaluation of

credibility and demeanor, this Court review the trial judge's ruling de novo. Id.

Whether the facts known to the officer at the time of the detention amount to

reasonable suspicion is a mixed question of law that is reviewed de novo on

appeal. Ornelas v. United States,        517 U.S. 690, 699 (1996) (holding that

determination of reasonable suspicion should be reviewed de novo on appeal, with

                                          14
deference to judges' findings of historical facts); State v. Mendoza, 365 S.W.3d.

666, 670 (Tex. Crim. App. 2012).

      Accordingly, when a trial judge rules on a motion to suppress and makes

explicit factual findings, an appellate court must determine whether the findings

are supported by the record, using an abuse of discretion standard and giving the

trial court almost "total deference." See State v. Castleberry, 332 S.W.3d 460, 465

(Tex. Crim. App. 2011) ("When the trial judge makes explicit findings of fact, we

afford those findings almost total deference as long as the record supports them,

regardless of whether the motion to suppress was granted or denied."). The Court

must then undertake a de novo review when considering whether the findings of

fact support the legal conclusions of the trial court. State v. Sheppard, 271 S.W. 3d

281, 288 (Tex. Crim. App. 2008).

 B. Applicable Law

      To suppress evidence because of an alleged          violation of the    Fourth

Amendment      to the United States Constitution the defendant bears the initial

burden of producing evidence that rebuts the presumption of proper police

conduct. Amador v. State, 221 S.W. 3d 666, 672 (2007). A defendant satisfies this

burden by establishing that a search or seizure occurred without a warrant. Id.

Once the defendant has made this showing, the State has the burden of proof to


                                         15
establish that the law enforcement officer conducted the search or seizure pursuant

to a warrant or that he acted reasonably. Id. at 672-73. The Fourth Amendment

permits a warrantless detention of a person if the detention is justified by

reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 28          (1968); Derichsweiler v.

State, 348 S.W.3d 906, 914        (Tex. Crim. App. 2011). "[A] law enforcement

officer's reasonable suspicion that a person may be involved in criminal activity

permits the officer to stop the person for a brief time and take additional steps to

investigate further." Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185 (2004).

      Reasonable suspicion to detain a person exists if an officer has specific,

articulable facts that, combined with rational inferences from those facts, would

lead him to reasonably conclude that the person detained is, has been, or soon will

be engaged in criminal activity. York v. State, 342 S.W.3d 528, 536 (Tex. Crim.

App. 2011). These facts must show unusual activity, some evidence that connects

the detainee to the unusual activity, and some indication that the unusual activity

is related to a crime. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App.

2011). "Although an officer's reliance on a mere `hunch' is insufficient to justify an

investigatory stop, . . . the likelihood of criminal activity need not rise to the level

required for probable cause." United States v. Arvizu, 534 U.S. 266, 274 (2002).

The test for reasonable suspicion focuses solely on whether an objective basis


                                          16
exists for the detention and disregards the officer's subjective intent. Terry, 392

U.S. at 21-22 ; York, 342 S.W.3d at 536 .

       A reasonable suspicion determination requires looking at the totality of the

circumstances and reasonable suspicion may exist even if those circumstances

standing alone may be just as consistent with innocent activity as with criminal

activity. York, 342 S.W.3d at 536. Courts have considered an officer's testimony

that activity occurs in a high crime area as support for the existence of reasonable

suspicion. See Castleberry, 332 S.W.3d at 368. However, this fact is not sufficient,

on its own or in conjunction with other purely speculative evidence, to create

reasonable suspicion. See Gamble v. State, 8 S.W.3d 452, 454 (Tex. App.-Houston

[1st Dist.] 1999, no pet.).

       C.    Care-taking Function Did Not Justify Continued Traffic Stop
             Investigation

       "The Amendment [of the United States Constitution] proscribes all

unreasonable searches and seizures, and it is a cardinal principle that 'searches

conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment —subject only

to a few specifically established and well-delineated exceptions.'"Mincey v.

Arizona, 437 U.S. 385, 390 (1978).

        In Cady v. Dombrowski, 413 U.S. 433 (1973), the United States Supreme

                                         17
Court established what has become known as the "community-caretaking"

exception to the warrant requirement in recognizing that police officers may

contact citizens "and engage in what, for want of a better term, may be described as

community caretaking functions, totally divorced from the detection, investigation,

or acquisition of evidence relating to the violation of a criminal statute." Cady v.

Dombrowski, 413 U.S. at 441, 447-48. But the Cady Court acknowledged that the

Fourth Amendment requires reasonableness. Id. at 339.

       In recognizing the community-caretaking function as an exception,         the

Tex.Crim.App stated in Wright v. State, 7 S.W.3d 148,151 (Tex. Crim.App.1999)

that "[a]s a part of his duty to 'serve and protect,' a police officer may stop and

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

circumstances, would believe is in need of help". However, "a police officer may

not properly invoke his community caretaking function if he is primarily motivated

by a non-community caretaking purpose." Corbin v. State, 85 S.W.3d 272, 277

(Tex. Crim.App.2002).

      Whether an officer properly invoked his community-caretaking function

requires a two-step inquiry: (1) whether the officer was primarily motivated by a

community-caretaking purpose; and (2) whether the officer's belief that the

individual needs help was reasonable. Id.


                                         18
      To determine the reasonableness of      the     police officer's belief that an

individual needs assistance, the Wright court proposed a non-exclusive list of

factors that courts may consider: (1) the nature and level of the distress exhibited

by the individual; (2) the location of the individual; (3) whether or not the

individual was alone and/or had access to assistance independent of that offered by

the officer; and (4) to what extent the individual — if not assisted — presented a

danger to himself or others. Wright, 7 S.W.3d at 151-52.

      T he    Wright    factors were intended to assist courts in determining

reasonableness in this context; they are not elements of reasonableness. Gonzales

v. State, 369 S.W.3d 851, 855 ftn 18 (Tex.Cr.App. 2012).

       D. Analysis

      Here the trial court made very few, if any, specific findings of fact.

Consequently, the only objective facts from the findings of fact this Court is left

to consider in its appellate de novo review of the court's conclusions of law are

that Officer Flugrath approached Thacker who was standing next to another police

cruiser after his vehicle had been moved from its parked position along side a

railroad track. (TR. Vol. 4, 88). This is not enough to support a claim of reasonable

suspicion to detain.

       The trial court made limited findings of fact regarding the officers'


                                         19
testimony therefore, this Court must give the court discretion to disbelieve the

officer's testimony in this regard. See Guzman, 955 S.W. 2d at 89. However, even

if this Court were to determine that the trial court believed all of the officers'

testimony, these facts would be insufficient         to lead a reasonable officer to

conclude that Thacker had committing or was about to commit a crime, as this

evidence was      too speculative to support a rational      inference driving while

intoxicated or other crime could be in progress. See York, 342 S.W.3d at 536.

The officers testimony did not establish enough facts about the specific situation

which, in conjunction with           Officer Flugrath's knowledge   of driving while

intoxicated violations    would support a reasonable suspicion of such a violation

by Thacker. See Gamble, 8 S.W.3d at 454.         There is no evidence of when Thacker

drove on the highway or that he was legally intoxicated at that time. Further on the

facts of this case he could have parked along side the railroad track, drank rum

from the bottle, then fell asleep.

        Therefore, given the totality of the circumstances as determined from the

trial court's, at best, limited findings of fact and Officer Flugrath's speculative

testimony, this Court should find that Officer Flugrath lacked reasonable suspicion

to detain Thacker. See Terry, 392 U.S. at 21-22; York, 342 S.W. 3d 536.




                                            20
      POINT OF ERROR NO. TWO
      THE TRIAL COURT ERRED IN FAILING TO GRANT
      THACKER'S MOTION TO SUPPRESS ORAL STATEMENTS
      AS THEY WERE CUSTODIAL INTERROGATIONS THAT
      VIOLATED THE LAW.
      Thacker asserts that he was questioned while in custody without being first

warned of his rights and without voluntarily waiving those rights, and that any

evidence obtained as part of that questioning should not be used against him at

trial. See Miranda v. Arizona, 384 U.S. 436, 479 (1966); see also Tex. Code Crim.

Proc. Ann. Art. 38.22 . Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App.

1996).

A. Standard of Review

      In reviewing a trial court's ruling on a Miranda-violation claim, an appellate

court conducts a bifurcated review: it affords almost total deference the trial

judge's rulings on questions of historical fact and on application of law to fact

questions that turn upon credibility and demeanor, and it reviews de novo the trial

court's rulings on application of law to fact questions that do not turn upon

credibility and demeanor. Ripkowski v. State, 61 S.W/3d 378, 381-52

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

1997)). The decision as to whether custodial questioning constitutes "interrogation"



                                          21
under Miranda is a mixed question of law and fact, and appellate court's defer to

the trial court's fact findings that turn on an evaluation of credibility and demeanor.

See id. If credibility and demeanor are not necessary to the resolution of an issue,

whether a set of historical facts constitutes custodial interrogation under the Fifth

Amendment is subject to de novo review because that is an issue of law: it requires

application of legal principles to a specific set of facts. See id.; see also Riley v.

United States, 923 A.2d 868, 883-84 (D.C.App. 2007), cert. denied, 555 U.S. 830,

(2008) ("[W]e review de novo whether the defendant's rights were `scrupulously

honored' and whether the police conduct constituted `interrogation' because these

are questions of law.").

B. Custodial Interrogation

      Being in custody is distinguishable from being held as part of a temporary

investigative detention. See Abernathy v. State,        963 S.W.2d 822, 824 n. 4

(Tex.App.-San Antonio 1998, pet. ref'd). An officer who lacks probable cause but

whose observations led to a reasonable suspicion that a particular person has

committed, is committing, or is about to commit a crime, may detain that person

briefly in order to investigate the circumstances that provoke the suspicion.

Berkemer v. McCarty, 468 U.S. 420, 439 (1984); see also Terry v. Ohio, 392 U.S.

at 30 (discussing an officer's restricted search when he reasonably concludes that


                                          22
criminal activity may be afoot). The officer may ask a moderate number of

questions to determine the person's identity and to try to gather information to

confirm or dispel the officer's suspicions. McCarty, 468 U.S. at 439.

       Like a temporary investigative detention, a traffic stop does not exert "upon

a detained person pressures that sufficiently impair his free exercise of his

privilege against self-incrimination to require that he be warned of his

constitutional rights." Id. at 437. This is for two reasons: Traffic stops tend to be

brief, so drivers expect to answer a few questions and be on their way shortly.

Also, traffic stops tend to be in public rather than at a station house, so drivers do

not feel completely at the mercy of the police. Id. at 437-39. Neither of these

circumstances existed in this case. After the care-taking investigation Thacker was

not released.

       In this case it is important to observed that     in determining whether an

individual was in custody the ultimate inquiry is simply whether there was a formal

arrest or restraint on freedom of movement to the degree associated with a formal

arrest. California v. Beheler, 463 U.S. 1121, 1125 (1983). The relevant question is

not the officer's subjective intent, but rather how a reasonable person in the

suspect's position would have understood the situation. McCarty, 463 U.S. at 442.

The “reasonable person" standard assumes an innocent person. Dowthitt, 931


                                         23
S.W.2d at 254. The officer's subjective view that the individual under questioning

is a suspect, if undisclosed, is irrelevant to the question of whether an individual is

in custody for Miranda purposes. Stansbury v. California, 511 U.S. 318, 324

(1994).

        The traffic stop in this case was not an investigative detention based on a

reasonable suspicion that a crime was being committed. Specifically, no one, law

enforcement or otherwise, had observed Thacker speeding, weaving between lanes

without signaling, or otherwise engage in activity that might be associated with a

traffic offense. The   questioning and field sobriety tests occurred at      a private

railway easement in the middle of the night. Thacker would have felt completely

at the mercy of the police and would not have expected to be able to proceed along

his way if he passed the field sobriety tests. Because Thacker was in custody when

he made the oral statements, the statements were improperly admitted against him

at trial.

        POINT OF ERROR NO. THREE
        THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
        CONVICT THACKER OF “OPERATING” A MOTOR
        VEHICLE

        Thacker asserts that the evidence is legally insufficient to prove he

committed the offense of driving while intoxicated. In particular, he asserts that

there is no evidence that he was “operating” a motor vehicle while intoxicated.

                                          24
     When reviewing the sufficiency of the evidence to support a conviction, this

Court consider all of the evidence in the light most favorable to the verdict to

determine whether, based on the evidence and reasonable inferences therefrom,

any rational fact-finder could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443         U.S. 307, 319(1979);

Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013); see Brooks v.

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). It is not necessary that the

evidence directly proves the defendant's guilt; circumstantial evidence is as

probative as direct evidence in establishing the guilt of the actor, and

circumstantial evidence alone can be sufficient to establish guilt. Carrizales v.

State, 414 S.W. 3d 737, 742 (Tex. Crim. App. 2013); Hooper v. State, 214 S.W.

3D 9, 13 (Tex. Crim. App. 2007).

      Restated the issue on appeal is not whether this Court believes the State's

evidence or believes that Thacker's evidence outweighs the State's evidence.

Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may

not be overturned unless it is irrational or unsupported by proof beyond a

reasonable doubt. Matson v. State, 819 S.W.2d. 830, 846 (Tex. Crim. App.1991).

The trier of fact "is the sole judge of the credibility of the witnesses and of the

strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.


                                        25
1999). The trier of fact may choose to believe or disbelieve any portion of the

witnesses' testimony. Sharp v. State, 707 S.W2d 611, 614 (Tex. Crim. App. 1986).

When faced with conflicting evidence, this Court        presumes the trier of fact

resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d

43,47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt, this Court

will affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

      T h e State convicted Thacker of driving while intoxicated under section

49.04 of the Texas Penal Code. Thus, it was obligated to have shown, beyond

reasonable doubt, that Thacker was “intoxicated while operating a motor vehicle in

a public place.” TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2013).

      One is intoxicated when he lacks the normal use of his mental or physical

faculties by reason of the introduction of alcohol, among other substances, into his

body or when having a blood alcohol concentration of 0.08 or more. Id. § 49.01(2).

And, though the statute does not define the term “operate,” our Court of Criminal

Appeals has held that a person operates a vehicle when the totality of the

circumstances demonstrate that he “took action to affect the functioning of his

vehicle in a manner that would enable the vehicle’s use.” Kirsch v. State, 357

S.W.3d 645, 650-51 (Tex. Crim. App. 2012); Denton v. State, 911 S.W.2d 388,


                                        26
389 (Tex. Crim. App. 1995), quoting Barton v. State, 882 S.W.2d 456 (Tex. App.

—Dallas 1994, no pet.). In other words, the circumstances must illustrate that the

“defendant exerted personal effort upon his vehicle for its intended purpose.”

Denton v. State, 911 S.W.2d at 389, quoting Barton v. State, supra. Thacker

contends that the State failed to prove he was operating the vehicle as

contemplated by the statute.

        The record illustrates that Officer Tucker found Thacker alone, slumped

over, asleep in the seat of his car   in the middle of the night of September 14,

2012. (TR. Vol. 4, 55) The vehicle was parked on a private railroad easement,

along    Union Pacific railroad tracks. Id. The vehicle was at least 20 to 25 feet

from a public roadway. Id. So far from the highway that Officer Tucker at first

had difficulty even finding the vehicle.(TR. Vol. 4, 56). While its motor was

running, its transmission was not engaged; that is, it was in park. (TR. Vol. 4, 68).

No signs of containers holding alcoholic substances were found around the vehicle

until after Thacker had been arrested for driving while intoxicated. (TR. Vol. 4,

71). How long Thacker and his vehicle were at the locale went unmentioned, as did

the time at which he arrived there.

        Whether Thacker began ingesting alcoholic substances at a locale prior to

arriving at the private railroad easement      went undeveloped, as did whether


                                         27
Thacker had ingested intoxicating substances while parked.

       There is    no evidence of the vehicle’s transmission being engaged, as in

Dornbusch v. State, 262 S.W.3d 432 (Tex. App.—Fort Worth 2008, no pet.).3

Although      Thacker had driven the car, as in Reynolds v. State, 744 S.W.2d 156

(Tex. App.—Amarillo 1987, pet. ref’d) there is no record that he had consumed

intoxicating substances prior to driving or that he was legally intoxicated while

driving4. Nor was the vehicle running while actually on the roadway, as in Barton

v. State, supra and Pope v. State, 802 S.W.2d 418 (Tex. App.—Austin 1991, no

pet.) and Hernandez v. State, 773 S.W.2d 761 (Tex. App.—San Antonio 1989, no

pet.). Nor was the vehicle found running in a moving lane of traffic, as in Hearne

v. State, 80 S.W.3d 677 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Nor is

there evidence that Thacker attempted to manipulate the vehicle’s controls, like the

steering wheel, gear lever, brakes, or accelerator, as in Barton v. State, supra, or

Hernandez v. State, supra. Each of those prosecutions may have involved someone

finding someone awake or asleep behind a steering wheel of an idling car, yet,

each had more indicia allowing a fact finder to reasonably infer that the accused

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

3 Indeed, that the car was in gear was the determinative factor according to the justice who
  concurred in Dornbusch v. State, 262 S.W.3d 432, 438-39 (Tex. App.—Fort Worth 2008, no
  pet.) (concurring).
4 Although Thacker had consumed alcohol the evidence was insufficient to determine when
  and where he consumed alcohol at levels to be legally intoxicated under the DWI law.

                                             28
the vehicle’s use or that the defendant exerted personal effort upon his vehicle for

its intended purpose. Here, however, Thacker was simply found asleep in a running

vehicle while parked off the roadway and totally on a private railway easement.

      In this case there is no direct or circumstantial evidence appears of record

enabling a reasonable fact finder to infer that Thacker operated his vehicle while

intoxicated.

      POINT OF ERROR NO. FOUR
      THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
      CONVICT T H A C K E R O F O P E R A T I N G A M O T O R
      VEHICLE IN A “PUBLIC PLACE”.

      Thacker    asserts that the evidence is legally insufficient to prove he

committed the offense of driving while intoxicated because there is no

evidence that he was operating a motor vehicle in a “public place” while

intoxicated.

      A public place is defined as "any place to which the public or a substantial

group of the public has access." Tex. Pen. Code Ann. § 1.07(a)(40). The remaining

portion of section 1.07(a)(40) contains a nonexclusive list of illustrative examples,

including "but not limited to, streets, highways, and the common areas of schools,

hospitals, apartment houses, office buildings, transport facilities, and shops." In

determining whether a place is public, the relevant inquiry is whether the public

has access to it. Shaub v. State, 99 S.W.3d 253,256 (Tex.App.-Fort Worth 2003,

                                         29
no pet.); Loera v. State, 14 S.W.3d 464, 467     (Tex.App.-Dallas 2000, no pet.);

State v. Nailor, 949 S.W.2d 357     (Tex.App.-San Antonio 1997, no pet.). When

proof is sufficient courts have held that parking lots that are plainly open to the

public or a substantial group of the public are public places. See e.g. Holloman v.

State, No. 11-95-275-CR, 1995 WL 17212433 (Tex.App.—Eastland 1995) (not

designated for publication).

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

Also see e.g., In re W.T.O., No. 03-01-00630-CV,2002 Tex. App. LEXIS 8214, at

*7 (Austin Nov. 21, 2002, no pet. h.) (mem. op.) (apartment house parking lot);

Nailor, 949 S.W.2d at 359 (hotel parking garage even though people must pay to

enter); Kapuscinski v. State, 878 S.W.2d 248, 250 (Tex.App.-San Antonio 1994,

pet. ref'd) (mall parking lot); Thibaut v. State, 782 S.W.2d 307, 309 , (Tex.App.-

Eastland 1989, no pet.) (parking lot of condominium complex).

    However these parking lot cases are distinguishable because here the record is

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

railroad easement away from the roadway was plainly open to the public.

      Second “access" is commonly defined as "an opportunity or ability to

                                        30
enter, approach, pass to and from, or communicate with." Black's Law Dictionary

13 (7th ed. 1999). Generally, the front yard of a residence and areas leading to the

porch are all locations to which the public might have access. See Loera, 14

S.W.3d at 469 . It has further been recognized "that anyone, be it law enforcement

officer or common citizen, has the right to approach an appellant's front door."

Cornealius v. State, 900 S.W.2d 731, 734 (Tex.Crim.App. 1995). However the

record is devoid that anyone had a similar right to be upon the private railroad

easement when Thacker was initially located.

      Third, this case is similar to Commander v. State, 748 S.W.2d 270 (Tex.

App.-Houston [14th Dist.] 1988, no writ), in which an officer saw the defendant

leaning against a van in a private driveway. 748 S.W.2d at 272. The defendant's

eyes were glassy, he smelled of alcohol, and he seemed unsteady. Id. The

Commander court held that "under the limited circumstances presented" the officer

did not have sufficient probable cause to arrest the defendant for public

intoxication. Id.

      Moreover this case is in contrast to State v. Nailor, 949 S.W.2d 357, 359

(Tex.App.-San Antonio 1997, no pet.). The issue in Nailor was determining

whether a place was      "public" by asking whether the public could enter the

premises.    Nailor had been arrested for driving while intoxicated in a Holiday Inn


                                         31
parking lot that was open to the public 24 hours a day. The evidence also showed

that Holiday Inn advertised and rented monthly parking permits and in fact,

solicited the public to use the lot. Thus, Nailor and similar cases should not be

controlling and extended to the facts presented here.

       This case is closer to Fowler v. State, 65 S.W.3d 116 (Tex.App.—Amarillo

2001, no pet.) (Unpaved driveway of a rural residence located approximately 1/4

mile from a country road in an isolated and secluded part of county was not a

“public place.” ). As in   Fowler although it is reasonable to infer that Thacker

traveled on a public road to arrive where he was parked along the private railway

easement, see Loera v. State, 14 S.W.3d at 468, the State did not attempt to

establish when Thacker entered the railway easement or his state of intoxication

at that time he had been on the highway.

      POINT OF ERROR NO. FIVE
      THE EVIDENCE WAS LEGALLY INSUFFICIENT     TO
      CONVICT THACKER OF OPERATING        A MOTOR
      VEHICLE WITHOUT NORMAL USE OF FACILITIES.
`
      In Texas every person who drinks alcoholic beverages will not automatically

become intoxicated under our driving while intoxicated (DWI) statute Tex. Pen.

Code Ann. § 49.04 Findlay v. State, 9 S.W.3d 397, 400 (Tex.App.-Houston [14th

Dist.] 1999). The purpose of the statute is to protect the safety of those traveling

on the roads by prohibiting intoxicated persons from driving a vehicle. Id In

                                        32
contrast   the DUI statute, by contrast, was enacted as part of a “zero tolerance”

standard for minors driving under the influence of alcohol in an effort to prevent

the loss of federal highway funding.         Senate Criminal Justice Comm., Bill

Analysis, Tex. S.B. 35, 75 th Leg., R.S. (1997).   Further, the statute was enacted

to “create a separate offense for driving under the influence of alcohol.”  Id. The

DUI statute itself provides that DUI is not a lesser included offense of DWI. Tex.

Alco. Bev.Code Ann. § 106.041(g) (Vernon Supp.1998).  

       Assuming arguendo that the evidence supports a finding that Thacker was

intoxicated at the time of Officer Tucker's and/or Officer Flugrath's encounter

with him, neither this evidence nor any evidence introduced at trial constitutes

independent evidence of (1) how recently the vehicle was driven or (2) how much

time elapsed between when Thacker had driven and his discovery along side the

railway by Officer Tucker. See Stoutner v. State, 36 S.W.3D 716, 721 (Tex.App.-

Houston [1st Dist.]2001, pet. ref'd); Weaver v. State,721 S.W.2d 495, 498

(Tex.App.-Houston [1st Dist.] 1986, pet. ref'd). As stated in Scillitani v. State,

297 S.W.3d 498 (Tex.App.-Houston [14th Dist.] 2009) “If law enforcement

officers do not observe an accused operating a motor vehicle, evidence that the

accused was intoxicated when law enforcement officers arrived on the scene,

alone, does not establish that the accused was intoxicated at the prohibited time —


                                        33
while the accused was operating a motor vehicle in a public place. See Stoutner,

36 S.W.3d at 721; Weaver, 721 S.W.2d 495, 498. Absent evidence in the record

establishing the time of the accident or of the accused's driving in a public place,

the evidence is legally insufficient to show that the accused drove while he was

intoxicated.”

      POINT OF ERROR NO. SIX
      THACKER'S LIFE SENTENCE WAS
      CRUEL AND UNUSAL PUNISHMENT.

      The jury convicted Thacker of the felony offense of driving while

intoxicated, subsequent offense. Thacker's punishment was enhanced by two prior

felony convictions for the offense of driving while intoxicated and he was assessed

life sentence. Thacker asserts that the sentence of life imprisonment is "grossly

disproportionate" to the offense that he committed and thus constitutes cruel and

unusual punishment. Thacker preserved error on this point by making a timely,

specific objection to the trial court. See U.S. Const. amend. VIII; Graham v.

Florida, 560 U.S. 48, 59-60 (2010); see also Ewing v. California, 538 U.S. 11

(2003); Harmelin v.Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277

(1983); Rummel v.Estelle, 445 U.S. 263 (1980). A sentence of life imprisonment

or of similar length   has been found not grossly disproportionate to a felony

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


                                        34
inherently violent in nature. See, e.g., Rummel, 445 U.S. at 284-85 (holding that

sentence of life imprisonment for offense of obtaining $120.75 by false pretenses

not excessive); Winchester v. State, 246 S.W.3d 386, 390-91 (Tex. App.-Amarillo

2008, pet. ref'd) (holding that consecutive life sentences for the offenses of

retaliation and failure to appear were not grossly disproportionate because       of

defendant's criminal history); Vrba v. State, 69 S.W. 3d 713, 716, 724-725 (Tex.

App.-Waco 2002, no pet.) (holding that 60-year sentence for DWI conviction was

not grossly disproportionate and did not violate defendant's Eighth Amendment

rights because of defendant's prior criminal history). Nevertheless even though

contrary to the unpublished opinion in          Davidson v. State, 03-13-00708-CR

(Tex.App.-Austin 8-1-2014) the issue is raised instantly for purposes of further

review. A sentence is grossly disproportionate to a crime only when an objective

comparison of the gravity of the offense against the severity of the sentence reveals

the sentence to be extreme. Harris v. State, 204 S.W.3d 19, 29         (Tex. App.—

Houston [14th Dist.] 2006, pet. ref'd); Hicks v. State, 15 S.W.3d 626, 632 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref'd). Also see generally, Nunn v. State,

14-14-00704-CR (Tex.App.-Houston [14th Dist.] 4-9-2015) (unpublished). The

life sentence in this case plainly meets this test.




                                           35
                                       PRAYER

      For the reasons stated in this brief, Thacker asks the court to reverse the trial

court’s order of adjudication and disposition.

                                       Respectfully submitted,

                                       Gerald C. Moton
                                       11765 West Avenue, PMB 248
                                       San Antonio, TX 78216
                                       Tel: (210) 410-8153;Fax: (210) 568-4389
                                       motongerald32@gmail.com
                                       By: /s/Gerald C. Moton
                                       Gerald C. Moton, TX SBN. 14596350
                                       ATTORNEY FOR RESPONDENT




                                         36
                         CERTIFICATE OF SERVICE
      I hereby certify that a copy of the above and foregoing
Jennifer Anne Tharp for Appellee, Criminal District Attorney of Comal County,
Texas, 150 N. Seguin Avenue, Suite 307, New Braunfels, Texas 78130-5122 by
electronic delivery on this 17th day of April, 2015.

                                      BY:/s/Gerald C. Moton
                                        GERALD C. MOTON
                                           STATE BAR NO.:14596350




                                        37
                     CERTIFICATE OF COMPLIANCE

      I hereby certify that this document complies with the typeface requirements

of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface

no smaller than 14-point for text and 12-point for footnotes. Relying on the word

count function in the word processing software used to produce this document, I

further certify that this document also complies with the word-count limitations of

Tex. R. App. P. 9.4(i), if applicable, because it contains 7285 words, excluding

any parts exempted by Tex. R. App. P. 9.4(i)(1).

                                      BY:/s/Gerald C. Moton
                                      GERALD C. MOTON
                                      STATE BAR NO.:14596350




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