Opinion
No. 05-10-00665-CR
Opinion issued January 5, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Criminal Court of Appeals No. 1 of Dallas County, Texas, Dallas County, Texas, Trial Court Cause No. MC-09-R0001-D.
Before Justices BRIDGES, FRANCIS, and LANG.
MEMORANDUM OPINION
After a bench trial, Jason James Truex was convicted of public intoxication in the municipal court of the City of Carrollton, Texas. The trial court assessed punishment at a fine of $500 and costs of court. After the trial court denied Truex's motion for new trial, Truex appealed to the County Criminal Court of Appeals No. 1 of Dallas County. On May 11, 2010, the court issued a written opinion affirming the municipal court's judgment. Truex appeals to this Court, and in two issues, he asserts the evidence is insufficient to prove the offense was committed in the location alleged in the complaint and that the location was a public place. Because the facts are well known to the parties and the issues of law are settled, we issue this memorandum opinion pursuant to Tex. R. App. P. 47.2, 47.4. For reasons that follow, we decide Truex's issues against him and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 4, 2007, Officer Allen Hollis, a Carrollton police officer, issued Truex a citation for public intoxication. The complaint stated Truex did Unlawfully appear in a public place, to-wit: 1225 EAST CROSBY ROAD within the territorial limits of the City of Carrollton, Dallas County, Texas, which said place the public or a substantial group of the public has access; the said defendant, by reason of the introduction of alcohol in the body, was then and there intoxicated to the degree that he may endanger himself or another. C.R. 26 (emphasis added). Hollis stated, "At approximately 21:55 hours, 21:56 hours," he was "dispatched to a report of a black GMC Blazer southbound on Perry" that was "driving on three wheels" with "a flat tire." Hollis was advised, "[t]he vehicle was swerving all over the median, driving very fast with the tires sparking." At first, Hollis and another officer could not locate the vehicle. Then, a truck driver for a business known as Johnson Brothers Bakery, located in the rear lot of 1225 East Crosby, attempted to make a delivery at that location. When the driver reported the vehicle to police, dispatch told Hollis the vehicle sought was at the back of the complex. Hollis said the vehicle in the bakery parking lot "was the same description" as the suspect vehicle. Hollis was "flagged" down when he was pulling up to the location. He "found a black GMC Blazer parked at the back of the lot directly behind the semitruck driver that had called it in." The Blazer had a flat tire. According to Hollis, Truex was "passed out behind the wheel." Truex was "extremely confused." Hollis smelled "a strong odor of alcohol coming from the driver." Hollis conducted the horizontal gaze nystagmus test and the walk and turn test on Truex. Based on Truex's responses to both tests, Hollis concluded Truex was intoxicated. Hollis testified that the public intoxication, all conversations with Truex, and the sobriety tests occurred at 1225 East Crosby Road and that this was a public place in the City of Carrollton. Hollis agreed Truex and the vehicle were located in the parking lot and not on the paved portion of East Crosby Road.II. LEGAL SUFFICIENCY FATAL VARIANCE
In his first issue, Truex argues the sufficiency of the evidence and that a fatal variance exists between the location alleged in the complaint and the evidence presented at trial. He contends that while the complaint alleged he was publicly intoxicated "in a public place, to-wit: 1225 EAST CROSBY ROAD," the evidence presented placed him in a parking lot at that address. Accordingly, he claims there is insufficient evidence to prove the public intoxication was committed in the location alleged in the complaint. Also, Truex claims the complaint did not inform him of the charge sufficiently to prepare an adequate defense and he would be subject to subsequent prosecution for the same crime. The State responds there is no variance between the allegations and the evidence because the address stated in the complaint includes the parking lot. Further, the State asserts the complaint met statutory requirements. We decide this issue against Truex.A. Standard of Review
Truex argues the sufficiency of the evidence under Jackson v. Virginia and the variance under Gollihar. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. "This standard measures evidenciary sufficiency against the `substantive elements of the criminal offense as defined by state law." Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002) (citing Jackson, 443 U.S. at 324 n. 16). In evaluating the sufficiency of the evidence under Gollihar, we consider "the elements of the offense as defined by the hypothetically correct jury charge for the case." Gollihar, 46 S.W.3d at 253 (internal quote marks omitted). This charge "would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. . . ." Gollihar, 46 S.W.3d at 253 (emphasis omitted).B. Applicable Law
Public intoxication occurs when a "person . . . appears in a public place while intoxicated to the degree that the person may endanger the person or another." Texas Penal Code Ann. § 49.02(a) (West 2010) (emphasis added). A location "may or may not be a public one according to the facts and circumstances." Clinton v. State, 142 S.W. 591, 591 (Tex. Crim. App. 1912); see also Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App. 1994), cert. denied, 515 U.S. 1105 (1995). 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." Texas Penal Code Ann. § 1.07(a)(40) (West 2010) (emphasis added). A business parking lot has been repeatedly held to be a public place. Ardis v. State, No. 05-00-01189-CR, 2001 WL 6783, at *3-*4 (Tex. App.-Dallas Jan. 3, 2001, pet. ref'd) (affirming trial court judgment of public intoxication where Appellant "pulled into a parking lot that was accessible to the public"); Tesarik v. State, No. 05-99-01288-CR, 2000 WL 1073025, at *2 (Tex. App.-Dallas Aug. 4, 2000, pet. ref'd) (concluding sufficient evidence for public intoxication where defendant voluntarily exited cab to 7-Eleven parking lot); see also Tex. Dep't of Pub. Safety v. Briggs, No. 03-05-00331-CV, 2006 WL 305306, at *4 (Tex. App.-Austin Feb. 9, 2006, no pet.) (mem. op.) ("Courts have consistently held that parking lots are public places"). The plain language of section 49.02(a) defines "public place" as a substantive element of public intoxication. Texas Penal Code Ann. § 49.02(a) (West 2010). However, we have noted that a specific street address is not required to allege a public place. Meza v. State, No. 05-00-01710-CR, 2001 WL 1269478, at *1 (Tex. App.-Dallas Oct. 24, 2001, no pet. h.) (mem. op.) (noting "the State was not required to plead the street address to give adequate notice of the charges against appellant."). "A `variance' occurs when there is a discrepancy between the allegations in the indictment and the proof presented at trial. Gollihar, 46 S.W.3d at 246. Variances between indictment and proof have been held to constitute legal sufficiency issues. In a case where a variance is raised, "the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the [indictment]." Id. Such a variance may render the evidence insufficient to sustain the conviction. Id. at 247. When the reviewing court is faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a material variance will render the evidence insufficient and require reversal. Id. at 257. In Gollihar, the court adopted the materiality test applied in the Fifth Circuit. Id. Under that test, a variance between the wording of an indictment and the evidence presented at trial constitutes a "fatal variance" mandating reversal only if it is material and prejudices the defendant's substantial rights. Gollihar, 46 S.W.3d at 257. When reviewing such a variance, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id.C. Application of Law to Facts
The evidence presented at trial was:* A black GMC Blazer was reported as swerving, and driving fast on three wheels and one flat tire.
* A truck driver for Johnson Brothers Bakery alerted police to the suspect vehicle in the parking lot at the rear of 1225 East Crosby Road and flagged Hollis down.
* Truex was passed out behind the wheel of the car, extremely confused when aroused, had a strong odor of alcohol, and based upon tests conducted by Hollis appeared to be intoxicated.
* Hollis testified the public intoxication occurred at 1225 East Crosby Road and this was a public place in the City of Carrollton.The evidence "satisfies the Jackson v. Virginia standard because it constitutes proof of every fact necessary to constitute the crime charged" of public intoxication. See Fuller, 73 S.W.3d at 253. Viewing this evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded that the parking lot is a public place. Accordingly, we resolve Truex's first issue under the Jackson v. Virginia standard of review against him. Having found against Truex on sufficiency of the evidence to support conviction, we likewise conclude no variance exists in this case. In Harvey v. State, the information alleged indecent exposure took place at "a public place, business located in the 1700 block of North Town East," but at trial the testimony identified the location of the offense as "at a parking lot between businesses on Town East Boulevard." Harvey v. State, 135 S.W.3d 712, 716-18 (Tex. App.-Dallas 2003, no pet.). This Court reasoned "[t]hat [the victim] testified the offense took place at a parking lot between businesses on Town East Boulevard does not mean that that location was not in the 1700 Block of North Town East." Id. at 718. Accordingly, we conclude no variance exists between the street address of 1225 East Crosby Road and the parking lot at 1225 East Crosby Road. Even were we to conclude a variance exists, the variance is immaterial. Truex was not surprised and unprepared for trial, nor is he at risk for being prosecuted for the same crime. In Meza, the defendant appealed a conviction for public lewdness. Meza, 2001 WL 1269478, at *1. "[A] person commits the offense of public lewdness if he engages in the act of sexual conduct in a public place." Id. The indictment stated the offense occurred in a "public place, to wit: a parking lot located at 500 E. Lawther Drive." Id. However, the evidence at trial proved the offense occurred "in a parking lot at 420 E. Lawther." Id. The Court considered "whether the variance . . . was a `material' one that prejudiced appellant's substantial rights," but found no merit in Meza's claims. Id. Also we noted "the State was not required to plead the street address to give adequate notice of the charges against appellant." Id. There is no indication in this record Truex was unaware he was accused of public intoxication in the parking lot of 1225 East Crosby Road or Truex "was misled by the allegation or surprised by the proof at trial." Gollihar, 46 S.W.3d at 258; Meza, 2001 WL 1269478, at *1. The State's allegation the public intoxication occurred at 1225 East Crosby Road "did not impair appellant's ability to prepare his defense." Gollihar, 46 S.W.3d at 258; Meza, 2001 WL 1269478, at *1. Neither does this allegation that the public intoxication occurred at 1225 East Crosby Road "subject appellant to the risk of being prosecuted later for the same crime." Gollihar, 46 S.W.3d at 258; Meza, 2001 WL 1269478, at *1. Accordingly, we conclude there is sufficient evidence to prove that the offense was committed in the location alleged in the complaint. Truex's first issue under the Gollihar standard is decided against him.