David Kent Thacker, Jr. v. State ( 2015 )


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  •                                                                                                                                                                               ACCEPTED
    03-15-00079-CR
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    ]cm                                                                                                                                                                  JEFFREY D. KYLE
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    ,an                                                                        Gerald C. Moton
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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
    38