John Antwon Pete v. State

Opinion issued October 1,

2009

In The

Court of Appeals

For The

First District of

Texas

NO. 01-09-00114-CR

JOHN ANTWON PETE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1193081

MEMORANDUM OPINION

A jury convicted John Antwon Pete of

possession with the intent to deliver cocaine, a controlled substance, weighing

more than one and less than four grams. See Tex. Health & Safety Code Ann. §§ 481.102 (3)(D) (V ernon

Supp. 2008), 481.112( c) (Vernon

2003). Pete pleaded true to two enhancements, and the trial court assessed

punishment of twenty-five years’ imprisonment. Pete appeals, claiming the

trial court erred in refusing to give an article 38.23(a) instruction [1]

because a factual issue exists as to whether the interior of the car in which

Pete sat in constitutes a “public place.” Pete, however, failed to present any

evidence affirmatively disputing that the car was a public place. We therefore

affirm the judgment of the trial court.

Background

On February 22, 2008 around 1:00 a.m.,

Officer M. Daniel was patrolling the Bristol apartment complex in a high crime

area of South Houston when he saw a lone vehicle sitting in the parking lot. He

observed two people inside the car either shaking hands or exchanging an

object. He turned into the lot to investigate, followed by Officer J. Sanchez

who was also patrolling the area. Officer Daniel and Officer Sanchez

approached the car to make sure everything was all right. Officer Daniel spoke

to Pete, who was in the passenger seat of the vehicle. Pete had bloodshot

eyes, enlarged pupils, appeared disoriented, and did not respond to Officer Daniel’s

questions.

Based on Pete’s appearance and

demeanor, Officer Daniel decided to arrest Pete for public intoxication. As

Pete exited the car, he kept his hand in his pocket and refused to remove it. Pete

resisted Officer Daniel’s attempts to handcuff him, but Officer B. Ramirez

arrived at the scene to help take Pete into custody. Officer Daniel then

performed a search of Pete incident to the arrest and found a matchbox

containing three grams of crack cocaine inside Pete’s right front pocket.

Officer Daniel and Officer Sanchez

testified at Pete’s trial regarding the incident. Both officers testified that

Pete was arrested in a public place as required by the public intoxication

statute. [2]

See Tex. Penal Code Ann . § 49.02(a) (Vernon Supp. 2008). During cross-examination, defense counsel asked

Officer Sanchez hypothetical questions that Pete claims create a factual issue

as to whether the inside of the car is a public place. First, counsel asked if

the public would have access to his car if it was parked in a Target parking

lot. In response, Officer Sanchez testified that the public would not have

access to his car. Second, defense counsel presented a situation in which one

person acts as a designated driver for an intoxicated person and stops at a Wal-Mart

on the way home. Counsel then asked if the purpose of having a designated

driver is defeated if this car is considered a public place. Officer Sanchez

replied, “I guess so.” At the close of evidence, defense counsel moved to

suppress any controlled substance seized incident to Pete’s arrest for public

intoxication on the theory that the arrest was improper because the car was not

a public place. Defense counsel then requested an article 38.23(a) jury question

asking that the jury find whether the interior of the vehicle was a public

place. See Tex. Crim. Proc. Code

Ann. art. 38.23(a) (Vernon 2005). The trial court denied the request. The

proposed jury issue stated:

A person

commits an offense if the person appears in a public place while

intoxicated to the degree that the person may endanger the person or another,

then you must determine under the facts of this case if the interior of the

vehicle in which the defendant was a passenger was a public place as defined as

follows: Public place means anyplace to which the public or a substantial

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

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

office buildings, transport facilities, and shops.

If you find

from the evidence beyond a reasonable doubt or you have a reasonable doubt thereof

that the interior of the vehicle in which the defendant was a passenger was not

a public place as defined above, then you will disregard any evidence obtained

as a result of the defendant’s arrest for public intoxication.

The trial court denied the requested

question, holding that the defense had not raised a fact issue as to whether

the interior of the car was a public place.

Discussion

To determine whether the

jury charge contains reversible error, we first decide whether error exists. Middleton

v. State , 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If we conclude that

it does, we examine whether the error harmed the defendant. Id.

Under article 38.23(a), a

defendant must meet three requirements before he is entitled to a jury instruction:

(1) The evidence heard by the jury must raise an issue of fact; (2) the

evidence on that fact must be affirmatively contested; and (3) that contested

fact must be material to the lawfulness of the challenged conduct in obtaining

the evidence. Madden v. State , 242 S.W.3d 504, 510 (Tex. Crim. App.

2007). If no factual dispute exists, the legality of the conduct is determined

by the trial court alone, as a question of law. Id. at 510 . Questions

on cross-examination cannot create the required conflict; only a witness’s

answers, which are evidence, may create a dispute. Id. at 514 .

Pete cites Kirtley v. State

for the proposition that the inside of a car is not per se a public place, and

thus presents a question for the fact-finder. 585 S.W.2d 724, 726 (Tex. Crim.

App. 1979). In Kirtley , the Court of Criminal Appeals addressed whether

the “public” element of the public lewdness statute was met under circumstances

in which the defendant, while driving his car on a public road, reached across

the seat and touched his female passenger’s breast. Id. at 725 . In

holding that the record did not support the assertion that the car was a public

place, the court reasoned that the car was not a commercial establishment, and,

while in motion, was not readily accessible to the public. Id. at 726 .

Since Kirtley was

decided, both the United States Supreme Court and the Texas Court of Criminal

Appeals have weighed in on whether a person has a reasonable expectation of

privacy inside a car when it is parked in a public place. See Texas v.

Brown , 460 U.S. 730, 740 , 103 S. Ct. 1535, 1542 (1983) (holding that

defendant had “no legitimate expectation of privacy shielding that portion of

the interior of an automobile which may be viewed from outside the vehicle by

inquisitive passersby or diligent police officers”); Longoria v. State ,

624 S.W.2d 582, 584 (Tex. Crim. App. 1981) (holding that interior of car parked

ten to twenty feet off the main paved road of a Houston public park after

midnight was “readily accessible to the public . . . and

therefore is a public place under the Penal Code”).

The Penal Code defines as a

“public place” as any place where a substantial group of the public has access,

including, but not limited to, the common areas of apartment houses. Tex. Penal Code Ann . § 1.07(a)(40)

(Vernon Supp. 2008). These include the parking lots and sidewalks. Evans

v. State , 995 S.W.2d 284, 286 (Tex. App.—Houston [14th Dist.] 1999, pet.

ref’d) (citing Bower v. State , 769 S.W.2d 887 , 897–98 (Tex. Crim. App.

1989), overruled on other grounds by Heitman v. State , 815 S.W.2d 681

(Tex. Crim. App. 1991)); Cuero v. State , 845 S.W.2d 387 , 391–92 (Tex.

App.—Houston [1st Dist.] 1992, pet. ref’d) (holding that defendant had no

reasonable expectation of privacy while in condominium complex parking lot

surrounded by security fence). These authorities together demonstrate that the

interior of a car in an apartment parking lot is a public place should it be

viewed from the outside by diligent police officers. See Brown , 460 U.S.

at 740 , 103 S. Ct. at 1542 . The officers’ testimony, given in response to

defense counsel’s hypothetical questions, do not create a fact issue because it

is undisputed that Pete was in a parked car in a public place in view of the

patrolling officers. Consequently, the trial court correctly rejected the

requested jury question.

Conclusion

Pete failed to raise a

factual issue as to whether the interior of the car constituted a public place

under these circumstances, and thus the trial court did not err in refusing the

requested jury question. We therefore affirm the judgment of the trial court.

Jane

Bland

Justice

Panel consists of Chief Justice

Radack and Justices Bland and Massengale.

Do not publish. Tex. R. App. P. 47.2 (b) .

[1] Article

38.23(a) reads:

No evidence obtained by an officer or other person in

violation of any provisions of the Constitution or laws of the State of Texas,

or of the Constitution or laws of the United States of America, shall be

admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue

hereunder, the jury shall be instructed that if it believes, or has a

reasonable doubt, that the evidence was obtained in violation of the provisions

of this Article, then and in such event, the jury shall disregard any such

evidence so obtained.

Tex. Code Crim. Proc. Ann . art. 38.23(a) (Vernon 2005).

[2] The relevant portion of the public intoxication

statute reads:

A person commits an offense if the person appears in a

public place while intoxicated to the degree that the person may endanger the

person or another.

Tex. Penal Code Ann . § 49.02(a) (Vernon Supp. 2008).