# Longoria v. State > Court of Criminal Appeals of Texas · December 2, 1981 · 624 S.W.2d 582 URL: https://www.frixlaw.com/law-library/cases/9680385 ## Case - **Full name:** David Wayne LONGORIA, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** December 2, 1981 - **Citations:** 624 S.W.2d 582; 1981 Tex. Crim. App. LEXIS 1266 - **Precedential status:** Published - **Opinion:** Dissent by Clinton - **Judges:** Dally, Davis, Clinton - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9680385 ## How later opinions describe it (automated extraction) - holding that the trial court did not abuse its discretion by denying appellant=s motion to dismiss State=s motion to revoke when appellant, who contended that the allegations in the State=s motion to revoke probation were insufficient to put him on notice, announced ready, ent… - 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” ## Opinion text CLINTON, Judge, dissenting. The factual question of whether appellant and his companion were in a public place is a close one. In my judgment finding the answer becomes even more difficult when two specified factual items not particularized in the opinion of the Court are considered: Park Police Officer Garrett spotted the car at 5:40 a. m. dark, and not until he manuevered his patrol unit in such a way that its headlights were shining “up there” was he able to see two heads in the car. 1 It is also true that in the entire fifteen hundred acres of the park which Garrett was patrolling that morning this car was the only one parked in it. Unlike the information in Kirtley v. State, 585 S.W.2d 724 (Tex.Cr.App.1979), expressly describing the public place as “an automobile on Lake June Road. ..,” id., at 725 , the motion to revoke probation in the case at bar says merely that appellant engaged in the alleged conduct “in a public place.” The questions put to Garrett and his answers seem more directed to showing that the area in the park is a public place. 2 *585 However, now in its appellate brief the State urges and the Court finds that there is sufficient evidence for the trial court, as trier of the fact, to find that the car was then “a ‘public place’ within the contemplation of the statute.” If the “status of the roadway as public does not extend to a vehicle traveling on that road,” during the middle of the day, Kirtley, supra, at 725 , it follows that the public status of the park and an area within it do not extend to a car parked in the area in the dark of night. Also, in Kirtley the Court opined that whether a motor vehicle is a public place depends on the surrounding circumstances, pointing out that one traveling at high speed at night may not be a public place, though on a public road. This example serves to illustrate, I take it, that to which the public does not have “access.” By a parity of reasoning it seems to me that the public does not have “access” to the interior of a car parked in a dark place which cannot be seen without walking around it and viewing the interior with aid of headlights from a vehicle situated for that purpose. The Court held as much under the former penal code in McCrary v. State, 131 Tex.Cr.R. 233 , 97 S.W.2d 236 (1936). One Brown operated a service station on the outskirts of a small village called Anna; 3 when the station was closed at night he used it as his residence. The closest residence was seventy five yards away. Between the station and the public road was a driveway, the view to which from the highway was obstructed by two brick posts and two gasoline pumps. About 2:00 a. m. a woman came to the station in a car and parked in the driveway. Brown came out in his underclothes, got in the car and engaged in sexual intercourse. The car was solid halfway up and closed; the night was dark and the lights were out. No cars were passing along the highway. As McCrary, the town marshal, approached he “saw the car shaking and heard grunting.” Reaching it he flashed his light inside and discovered the pair in the act of sexual intercourse. McCrary placed them under arrest, and the legality of his doing so was an issue in the case. The trial court instructed the jury that the arrest was illegal. McCrary sought to justify his arresting the pair on grounds they were committing an offense against the public peace in that they were indecently exposing their persons in a public place, in violation of what was then Article 474, Penal Code (1925). 4 The Court rejected the justification, largely because of the location of the car McCrary was unable to see the parties “until he had flashed his light in the car.” 5 This decision, as well as Kirtley , demonstrates that the interior of a motor vehicle is not converted to a “public place” when the activity within is not readily visible to third persons without the aid of purposefully directed artificial lighting. Accordingly, I am unable to agree that at 5:40 a. m. on the occasion in question, the automobile in which appellant was found had become a public place. I respectfully dissent. . Garrett testified, “The back of my car was on the pavement. I pulled up directly with their car with my headlights shining up there.” It was dark and when Garrett first stopped his unit he could see the top part of the head of the companion up against the door and that there was another head in there, but “I couldn’t tell what they were doing from my sitting position in my car.” Only when he left his unit and walked around the other car would Garrett see that appellant was “apparently having sexual intercourse” with his companion. . “Q: What kind of a park is Memorial Park? What kind of activities go on there? A: It’s a public park. Family activities and so forth. * ⅜ * * * * Q: The area you found them in is that an area the public has access to in Memorial Park? A: Yes.” The main thoroughfare alongside the park is Memorial Drive. Garrett conceded that none of the area where the car with appellant and friend was found was “observable” from Memorial Drive. . It was thus a public place by day since, in the words of old Article 475, Penal Code (1925), it was a “store... or any place... to which people commonly resort for purposes of business, amusement or other lawful purpose.” . “Whoever shall go into or near any public place or... near any private house... and shall... expose his or her person to another person...” . The Court alluded to the fact the premises belonged to Brown, but that element was clearly not decisive, for the offense McCrary claimed could also be committed “near any private house,” see note 4. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680385. Public record. Not legal advice.