Feinberg v. State

Full title: RAYMOND STEELE FEINBERG, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 20, 2007

No. 05-06-01367-CR (Tex. App. Nov. 20, 2007)

Opinion

No. 05-06-01367-CR

Opinion issued November 20, 2007. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the Criminal County Court No. 8, Dallas County, Texas, Trial Court Cause No. M04-49941-J.

Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.

OPINION

MARK WHITTINGTON, JUSTICE.

Raymond Steel Feinberg appeals his conviction for driving while intoxicated. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). After finding appellant guilty, the trial judge assessed punishment at 180 days' confinement, probated for twenty-four months, and a fine of $1200. In two issues, appellant claims the evidence is legally and factually insufficient to support his conviction because the evidence shows appellant was not (i) in a public place and (ii) operating a motor vehicle at the time the offense occurred. We affirm the trial court's judgment. Initially, we note the State argues appellant failed to adequately brief his factual sufficiency complaints. Specifically, the State contends appellant does not present any argument in support of his factual sufficiency complaints. Rule 38.1 provides that a party's brief must contain a "clear and concise argument for the contentions made, with appropriate citations to authorities and the record." Tex. R. App. P. 38.1(h). Although appellant provides the appropriate standard of review for a factual sufficiency review in his brief, he does not argue how the evidence is factually insufficient to support his conviction nor does he apply any law discussing or analyzing a factual insufficiency analysis to the facts of his case. In addition, appellant requests only that we reverse the trial court's judgment and "enter a judgment of acquittal." See Tex. R. App. P. 38.1(i) (prayer must contain short conclusion that clearly states nature of relief sought). We agree with the State's contentions and conclude appellant has failed to present anything for our review regarding the factual sufficiency of the evidence to support his conviction. See Tex. R. App. P. 38.1(h); Perez v. State, 113 S.W.3d 819, 837 (Tex.App.-Austin 2003, pet. ref'd) (citing McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App. 1997)); see also James v. State, 48 S.W.3d 482, 487 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (concluding appellant waived complaint when he failed to specifically argue how evidence is factually insufficient). We now turn to appellant's challenge of the legal sufficiency of the evidence to support his conviction.

Standard of Review

In addressing legal sufficiency complaints, we apply well-known standards: we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). The reviewing court must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 13 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). A person commits the offense of driving while intoxicated if he is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04. Appellant does not challenge that he was intoxicated; rather, he contends there is no evidence (i) he was in a public place at the time he was discovered and (ii) he operated a vehicle.

Public Place

A public place is defined as

any place 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.

Tex. Pen. Code Ann. § 1.07(a)(40) (Vernon Supp. 2007). The penal code's list of public places is nonexclusive; in determining whether an area is a public place, the relevant inquiry is whether the public has access to it. Loera v. State, 14 S.W.3d 464, 467 (Tex.App.-Dallas 2000, no pet.); see Banda v. State, 890 S.W.2d 42, 52 (Tex.Crim.App. 1994) (place may be public one or not according to circumstances). "[I]f the public has any access to the place in question, it is public." Woodruff v. State, 899 S.W.2d 443, 445 (Tex.App.-Austin 1995, pet. ref'd) (quoting 6 Michael B. Charlton, Texas Criminal Law § 1.6 (Texas Practice 1994)). Thus, our focus in determining whether the State's evidence was sufficient to prove the element "public place" should be "whether the place is one to which the public has access." State v. Nailor, 949 S.W.2d 357, 359 (Tex.App.-San Antonio 1997, no pet.). At trial, Sergeant Lawrence Nichols of the Dallas Police Department testified he responded to a call about a person who was found passed out in a vehicle. That person was appellant. When Sergeant Nichols arrived, he noticed appellant's vehicle was "at the exit gate of an apartment complex blocking the exit." According to Sergeant Nichols, the apartment parking lot where appellant was found is a public parking lot. He conceded that the parking lot was gated and agreed that a person would have to "have some way of getting the gate to open before . . . get[ting] access inside the parking lot." Nevertheless, Sergeant Nichols testified that, when he responded to the call, the gate was open and appellant's vehicle was blocking the exit. This evidence shows that, although the parking lot was gated, it was open to the public at the time appellant was found. We therefore conclude the evidence is legally sufficient to support the conclusion that the parking lot was a public place at the time appellant was found passed out in his vehicle. See Tracey v. State, 171 Tex. Crim. 408, 409-10, 350 S.W.2d 563, 563-64 (1961) (concluding boulevard inside air force base, which was open and traveled by public as well as defendant on date in question, was public place); Woodruff, 899 S.W.2d at 445-46 (although base had monitored access, witness's testimony about degree and manner of allowing public access was sufficient to establish base was public place as contemplated by statute prohibiting driving while intoxicated). We overrule appellant's first issue.

Operating a Vehicle

Although the penal code does not define the word "operating," the plain meaning of the word requires that appellant, while intoxicated, was exerting "personal effort to cause the vehicle to function." Freeman v. State, 69 S.W.3d 374, 376 (Tex.App.-Dallas 2002, no pet.). We look to the totality of the circumstances to determine whether appellant exerted personal effort upon his vehicle in a manner that shows intentional use of the vehicle for the intended purpose. Freeman, 69 S.W.3d at 376 (citing Barton v. State, 882 S.W.2d 456, 459 (Tex.App.-Dallas 1994, no pet.)). Linda Stokes testified she is a lieutenant with the security patrol at the Village apartment complex. She and a backup officer discovered appellant in his vehicle after being told by the "mail lady" that "there was a guy passed out behind the wheel." According to Stokes, appellant's vehicle was in drive, and appellant had his foot on the brake. Stokes reached in and put the vehicle in park before trying to wake appellant. When asked what was keeping appellant's vehicle from driving or going forward, Stokes answered, "His foot on the brake." This evidence is sufficient to establish appellant was operating a vehicle. See Freeman, 69 S.W.3d at 375 (concluding appellant was operating vehicle when car had right front tire against curb, motor was running, gear was in "drive" position, and lights were on); Milam v. State, 976 S.W.2d 788, 789 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (concluding appellant was operating vehicle when his car's engine was running, car was in gear, and appellant had his foot on the brake); see also Barton, 882 S.W.2d at 459 (concluding appellant was operating vehicle when vehicle, with engine idling, was standing still in roadway protruding into intersection and appellant was asleep behind wheel with feet on clutch and brake). In reaching this conclusion, we reject appellant's argument that his vehicle was not running and he, therefore, could not have been operating the vehicle. Although Stokes did not specifically state that the vehicle's engine was running, she testified that appellant's "foot on the brake" was what kept the vehicle from driving or moving forward. The trial judge, as fact finder, was entitled to draw the reasonable inference that the engine was running and, but for appellant's foot on the brake, the vehicle would have driven or gone forward.¹ We overrule appellant's second issue. We affirm the trial court's judgment.