XV. Specific Elements

A. PUBLIC ROAD – PLACE

  1. PARKING LOTS
    • Rouse v. State, 651 S.W.2d 736 (Tex.Crim.App. [panel op.] 1983).
    • Thibaut v. State, 782 S.W.2d 307 (Tex.App.-Eastland 1989, no pet.).
      • Though a “parking lot“ is not a “road“ under Article 67011-1, evidence may show a road through a parking lot.
    • Crouse v. State, 441 S.W.3d 508 (Tex.App.-Dallas 2014, no pet).
    • Kapuscinski v. State, 878 S.W.2d 248 (Tex.App.-San Antonio 1994, pet. ref’d).
    • State v. Nailor, 949 S.W.2d 357 (Tex.App.-San Antonio 1997, no pet.). 
      • Parking lot can be a “public place”.
    • 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 mechanism” to allow the resident to enter the complex. The guests to the complex would push the resident’s apartment number and then the phone in the resident’s apartment would ring. If the resident wanted the guest to be admitted, the resident would then push a number and the gate would open. The apartment complex placed no restrictions on residents as to whom they could allow to come into the complex. Court held sufficient evidence that parking lot was “public place.”
  2. MILITARY BASES
    • Woodruff v. State, 899 S.W.2d 443 (Tex.App.-Austin 1995, pet. ref’d).
    • Tracey v. State, 350 S.W.2d 563 (Tex.Crim.App. 1961).
      • Military base can be “public place”.
  3. PARK AS A PUBLIC PLACE
    • Perry v. State, 991 S.W.2d 50 (Tex.App.-Fort Worth 1998, pet. ref’d).
      • The fact that a park is closed (its hours of operation are over) and the public is not supposed to use the park is irrelevant to the determination of whether the place is one to which the public has access. Held park was a “public place”.
  4. DRIVEWAY
    • Fowler v. State, 65 S.W.3d 116 (Tex.App.-Amarillo 2001, no pet.).
      • Unpaved driveway of a rural residence located approximately ¼ mile from a country road in an isolated and secluded part of county was not a “public place”.
  5. MARINA
    • Shaub v. State, 99 S.W.3d 253 (Tex.App.-Fort Worth 2003, no pet.).
      • In holding that the marina where the defendant operated his vehicle was a public place, the Court focused on evidence that the entire marina area appeared to be accessible to anyone who wants to use it.
  6. GATED COMMUNITY
    • State v. Gerstenkorn, 239 S.W.3d 357 (Tex.App.-San Antonio 2007, no pet.).
      • The defendant was stopped in a gated community with a security guard and limited access. He argued that it was not a “public place”. In rejecting that argument, the Court found that anyone could gain access to the community “under the right set of circumstances”. It found the situation analogous to that in the Woodruff case which found the grounds of a military base to be a “public place.”
  7. PRIVATE ROAD
    • Texas Department of Public Safety v. Castro, No. 04-08-00687-CV, 2009 WL 1154360 (Tex.App.-San Antonio 2009) (not designated for publication).
      • This case arises from an ALR ruling that the Defendant was not operating a motor vehicle in a public place. The road the Defendant was stopped on was Private Road 1115, which according to the officer, the public had unrestricted access to. Even though an affidavit from a local resident asserted that the use and actual function of Private Road 1115 was limited to serving residents, and that local residents would occasionally stop unfamiliar vehicles on the road, the Court found that this evidence highlights that the general public could gain access to Private Road 1115. While travelers on the road may have been infrequent, there is no evidence that the public was restricted from accessing Private Road 1115. Based on that evidence, the Court of Appeals found that the road was a “public place”.

B. PROOF OF “STATE”

Barton v. State, 948 S.W.2d 364 (Tex.App.-Fort Worth 1997, no pet.).

State proved offense occurred in Texas when it proved it occurred in Denton County. Court could take judicial notice of that fact.

C. PROOF OF “MOTOR VEHICLE”

Turner v. State, 877 S.W.2d 513 (Tex.App.-Fort Worth 1994, no pet.).

Reference by police officer to vehicle as “car” sufficient to establish that the vehicle involved in the DWI was a motor vehicle.

D. “NORMAL USE OF MENTAL OR PHYSICAL FACULTIES”

Hernandez v. State, 107 S.W.3d 41 (Tex.App.-San Antonio 2003, pet. ref’d)

Railsback v. State, 95 S.W.3d 473 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d).

Fogle v. State, 988 S.W.2d 891 (Tex.App.-Fort Worth 1999, pet. ref’d).

Reagan v. State, 968 S.W.2d 571 (Tex.App.-Texarkana 1998, pet. ref’d).

Massie v. State, 744 S.W.2d 314 (Tex.App.-Dallas 1988, pet. ref’d).

Allegation that defendant did not have the “normal use of his mental and physical faculties” does not require the State to prove what the defendant’s normal faculties are. It simply means that the faculties to be tested must belong to the defendant.

E. ADMISSIBILITY OF ILLEGAL DRUGS TO PROVE INTOXICATION

Cook v. State, No. 12-05-00201-CR, 2006 WL 1633250 (Tex.App.-Tyler 2006, no pet.) (not designated for publication).

The defendant was arrested for DWI. Clues of intoxication included horizontal and vertical nystagmus, bloodshot and glassy eyes, odor of alcohol on his breath, slurred speech and unsteadiness on his feet. Incident to his arrest, marijuana was found on his person. The defendant refused to give a sample of his breath. The State alleged the general definition of intoxication in its charging instrument. The Court held that the possession of marijuana made it more likely that he had smoked marijuana, and that supported an inference his intoxication could be explained in part by the use of marijuana. It is worth noting that no odor of marijuana is mentioned by the officer though unobjected to in testimony about vertical nystagmus being present and its relation to the consumption of narcotics. The Court held that the admission at trial of the marijuana was not error.

F. STIPULATING TO AN ELEMENT

Reynolds v. State, No. 08-14-00307-CR, 2017 WL 2824021, 2017 Tex.App. LEXIS 6040 (Tex.App. – El Paso, 2017.

The prosecution is entitled to prove its case by evidence of its own choice. The court distinguishes between an offer to stipulate to an element of the offense and an offer to stipulate to a prior.

Practice tip: Do not let the defense dictate your evidence. If they are offering to stipulate to a piece of evidence there is probably a good reason they do not want your jury to hear it.