David Lee Cunningham v. The State of Texas--Appeal from County Court at Law No 2 of Bexar County

MEMORANDUM OPINION
No. 04-03-00935-CR
David L. CUNNINGHAM, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law Number Two, Bexar County, Texas
Trial Court No. 786860
Honorable Paul Canales, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 8, 2004

AFFIRMED.

In this appeal from a conviction for driving while intoxicated, appellant challenges the legality of a citizen's arrest. Appellant David L. Cunningham, Jr. raises four issues on appeal. In his first and third issues, Cunningham contends the trial court erred in denying his motions to suppress because evidence was illegally obtained against him. Specifically, Cunningham asserts that the private citizen in this case was unauthorized under Texas law to conduct an investigatory detention and warrantless arrest for DWI. See Tex. Code. Crim. Pro. Ann. art. 14.01(a) (Vernon 1977). In his second and fourth issues, Cunningham contends his testimony created fact issues for the jury to consider regarding the legality of the detention and citizen's arrest, and he was therefore entitled to have his requested jury instructions submitted under Article 38.23 of the Code of Criminal Procedure. We overrule Cunningham's issues on appeal and affirm the trial court's judgment.

Background

Rosalio Hernandez, a private security officer, testified that on May 19, 2001, at approximately 4:00 a.m., he was driving home from work when Cunningham's vehicle darted out of a shopping center and nearly struck his vehicle. Hernandez testified he had to swerve and drive onto the median to avoid a collision. Hernandez noticed Cunningham's vehicle was weaving as Cunningham drove away. Hernandez called his dispatcher to inform her he had been run off the road and gave her Cunningham's vehicle information. Cunningham drove through a green light, pulled into a fast food restaurant parking lot, and stopped his vehicle at the drive-through. Hernandez testified that he followed Cunningham into the parking lot and approached Cunningham's vehicle to determine if he was all right. When Cunningham rolled down his window, Hernandez noticed he had blood-shot eyes, slurred speech, and smelled of alcohol. Cunningham admitted he had consumed several beers that evening. Hernandez asked Cunningham to step down from his vehicle and noted that Cunningham was unsteady on his feet and braced himself against his vehicle for support. Hernandez held Cunningham in the parking lot until the police arrived approximately forty-five minutes later. The police conducted various field sobriety tests and concluded Cunningham was intoxicated.

Cunningham's version of the events is somewhat different. Cunningham testified he had been at a friend's home until 2:00 a.m. where he had consumed several beers over the course of the evening. Cunningham stated he could not remember the exact number of beers he consumed, but he was not intoxicated. He testified he remembered seeing Hernandez driving beside him, but did not remember running Hernandez off the road. Cunningham denied that such an incident occurred, and testified that he did not drive erratically or commit any conduct that would justify a citizen's arrest for DWI. He testified that Hernandez and the security guard on duty at the restaurant asked for his keys, license, and proof of insurance. Cunningham stated that he was informed he was being held for the police on suspicion of DWI.

Legality of the Detention and Arrest

In his first and third issues, Cunningham challenges the judgment of the trial court on the grounds that all evidence obtained against him stemmed from an illegal detention and arrest. Cunningham filed pretrial motions to suppress all physical evidence taken after the arrest along with his oral and written statements. The trial court denied Cunningham's motions, finding that Cunningham's actions amounted to a breach of the peace, thus justifying the citizen's arrest. We review a trial court's ruling on a motion to suppress for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We give almost total deference to the trial court's determination of historical facts, especially when the fact findings are based on an evaluation of the witness' credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review the court's application of the law de novo. Id.

In his first issue, Cunningham contends that Hernandez impermissibly stopped and detained him. Cunningham argues the stop was illegal because Texas law does not allow private citizens to conduct investigatory stops. See Garner v. State, 779 S.W.2d 498, 501 (Tex. App.-Fort Worth 1989, pet. ref'd) (holding that a private citizen may not conduct a Terry stop and must have probable cause to believe an offense is being committed in order to justify an arrest or detention). We do not agree that Cunningham was impermissibly stopped. Hernandez did not pull Cunningham over to conduct an investigation; Cunningham stopped his own vehicle in a public parking lot. Further, we need not address the issue of whether Hernandez had reasonable suspicion to detain Cunningham because the record supports the conclusion that this was an arrest, not a detention. The Court of Criminal Appeals has held that an "arrest" occurs when a person's liberty of movement is restricted or restrained. Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991); see also Hardinge v. State, 500 S.W.2d 870, 873 (Tex. Crim. App. 1973) (citizen's arrest occurred where a security guard held defendant for police). By his own testimony, Cunningham stated he was held in the parking lot against his will and that Hernandez informed him he was being held for the police on suspicion of DWI. There was ample proof presented for the trial court to conclude that Hernandez effected a citizen's arrest of Cunningham and not merely a detention for investigative purposes. We therefore overrule Cunningham's first issue.

Alternatively, in his third issue, Cunningham contends that Hernandez was unauthorized by Texas law to make a citizen's arrest. Article 14.01 of the Texas Code of Criminal Procedure authorizes a citizen to arrest an offender when a felony or a breach of the peace is committed in his presence or view. Tex. Code Crim. Pro. Ann. art. 14.01(a). The statute is limited to the time the offense is committed or while there is continuing danger of its renewal. See id.; Turner v. State, 901 S.W.2d 767, 771 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd). "Breach of the peace" has not been statutorily defined, but the Court of Criminal Appeals has explained:

Actual or threatened violence is an essential element of a breach of the peace. Either one is sufficient to constitute the offense. Accordingly, where means which cause disquiet and disorder, and which threaten danger and disaster to the community, are used, it amounts to a breach of the peace, although no actual personal violence is employed.

Woods v. State, 152 Tex. Crim. 338, 342, 213 S.W.2d 685, 687 (1948). Whether certain actions constitute a breach of the peace must be determined on a case-by-case basis, looking to the facts and circumstances surrounding the act. Turner, 901 S.W.2d at 770.

Traffic violations per se do not qualify as a breach of the peace under Texas law and do not justify a citizen's arrest. See Pierce v. State, 32 S.W.3d 247, 248 (Tex. Crim. App. 2000) (finding no breach of the peace where the defendant swerved in front of another vehicle, forcing an officer outside his jurisdiction to apply his breaks to avoid a collision); Perkins v. State, 812 S.W.2d 326 (Tex. Crim. App. 1991) (finding no breach of the peace when a car sped through a red light at 3:30 in the morning); Reichaert v. State, 830 S.W.2d 348, 352 (Tex. App.-San Antonio 1992, pet. ref'd) (arrest for breach of the peace not justified where a vehicle was speeding and almost hit a retaining wall). The law requires something more than witnessing mere traffic violations or temporary erratic driving to permit a private citizen to conduct an arrest. See Pierce, 32 S.W.3d at 253.

Depending on the circumstances of a case, traffic violations in the context of suspected DWI can give rise to a breach of the peace. Driving while intoxicated has been held to be a breach of the peace, and several courts have found that conduct suggesting that a motorist was driving while intoxicated could be classified as a breach of the peace. See, e.g., Romo v. State, 577 S.W.2d 251, 252 (Tex. Crim. App. 1979) (holding that defendant committed a breach of the peace by driving while intoxicated where he drove erratically and swerved at the citizen's vehicle, forcing him off the road); McEathron v. State, 163 Tex. Crim. 619, 620, 294 S.W.2d 822, 823 (1956) (upholding citizen's arrest of defendant where citizen observed defendant drive at a high rate of speed, strike the esplanade three times, and run red lights); Ruiz v. State, 907 S.W.2d 600 (Tex. App.-Corpus Christi 1995, no pet.) (finding breach of the peace for DWI where defendant was driving on wrong side of the highway). In addition, being intoxicated in a public place has been held to be a breach of the peace. State v. Nailor, 949 S.W.2d 357, 358 (Tex. App.-San Antonio 1997, no pet.), (citing Romo, 577 S.W.2d at 253). "Public place" is defined in the Penal Code as "any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets and highways, and the common areas of schools, apartment houses, office buildings, transport facilities, and shops." Tex. Pen. Code Ann. 1.07(a)(40) (Vernon 2003) (emphasis added).

Cunningham argues that the conduct described by Hernandez amounted to no more than traffic violations and therefore did not justify a citizen's arrest. We disagree. The trial court heard testimony that Cunningham nearly hit Hernandez's vehicle, forced Hernandez off the road, and then proceeded to weave in his lane. Based on this testimony, the trial court could properly determine that these actions constituted a breach of the peace and posed a continuing threat to the safety of the community. See Romo, 577 S.W.2d at 253. Additionally, upon being approached after stopping his vehicle at a drive-through, Cunningham exhibited further symptoms of intoxication and admitted he had consumed several beers. We hold that Cunningham committed a breach of the peace and a citizen's arrest was authorized in this instance. Therefore, all evidence was obtained pursuant to a lawful arrest. The trial court did not err by denying Cunningham's motions to suppress the evidence. Cunningham's third issue is overruled.

Requested Jury Instructions

In his second issue and fourth issues, Cunningham argues his testimony created a factual dispute underlying the basis for his detention and arrest, and that he was therefore entitled to his proposed jury instructions under Article 38.23 of the Code of Criminal Procedure. Tex. Code Crim. Pro. Ann. art. 38.23 (Vernon Supp. 2004). Cunningham asserts he was harmed by the trial court's failure to include his requested jury instructions because he was unable to reference them in his closing arguments.

Article 38.23 of the Texas Code of Criminal Procedure provides that evidence obtained in violation of the law shall not be admitted against the defendant in a criminal case. Id. It further provides that where the evidence raises an issue under this provision, the jury shall be instructed to disregard such evidence if the jury believes the evidence was obtained in violation of the law. Id. In his first requested jury instruction, Cunningham sought to have the jury instructed that a private person, including a private security guard, does not have authority under Texas law to conduct a temporary detention for investigative purposes. Cunningham's requested instruction asked the jury to determine whether he had been detained by Hernandez. We hold the trial court properly refused this instruction because Cunningham was entitled to an instruction only if the evidence raised a fact issue concerning whether evidence was obtained in violation of the law. See Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. E. 2d 46 (1997). The facts in this case established that Hernandez effected a citizen's arrest of Cunningham and not a temporary detention for investigative purposes. Cunningham's second issue is overruled.

In his fourth issue, Cunningham asserts the trial court erred by refusing to submit his second proposed jury instruction because there was sufficient evidence he had been illegally arrested. Cunningham proposed the following instruction:

You are instructed that under our law, a peace officer or any other person may, without a warrant, arrest an offender when the offense is committed within his presence or view if the offense is one classified as a felony or an offense against the public peace.

You are instructed that under our law, traffic violations are not offenses against the public peace. You are further instructed that driving while intoxicated is an offense against the public peace.

No evidence obtained by a peace officer or any other person in violation of any provision of the Constitution or the laws of the United States of America, shall be used as evidence of the accused [sic] guilt.

Now bearing in mind these instructions, if you find from the evidence beyond a reasonable doubt that on the occasion in question, Rosalio Hernandez was acting as a peace officer or any other person, and placed the defendant under arrest without a warrant and that offense for which the defendant was placed under arrest was one classified as a felony or an offense against the public peace, then such arrest would be legal and you will continue your deliberations. If you do not so find and believe beyond a reasonable doubt or if you have a reasonable doubt thereof, then such arrest would be illegal and in such event the jury will disregard the evidence relative to the arrest of the defendant relative to the arrest of the defendant and you will not consider such evidence for any purpose whatsoever and you will return a verdict of "NOT GUILT[Y]."

The trial court rejected Cunningham's proposed instruction, but did instruct the jury to disregard evidence obtained in violation of the law. We find the trial court acted properly in refusing Cunningham's instruction. The jury charge should "state the law applicable to the case, without expressing or intimating any opinion as to the weight of the evidence, or the credibility of the statements made by the party accused." Henry v. State, 149 Tex. Crim. 321, 323, 194 S.W.2d 264, 265 (1946). Cunningham's proposed instruction is misleading because it implies that traffic violations cannot be considered a breach of the peace under any circumstance. While traffic violations do not per se constitute a breach of the peace, Texas courts have found they can give rise to a breach of the peace in the context of suspected DWI. See Romo, 577 S.W.2d at 252-53 (traffic violations indicated defendant was driving while intoxicated, justifying the citizen's arrest); McEathron, 294 S.W.2d at 621 (same). Cunningham's proposed instruction does not accurately state the law. Therefore, the trial court did not err by refusing his second proposed instruction. Cunningham's fourth issue is overruled.

Conclusion

The testimony presented in this case, though conflicting, supports the conclusion that the arrest of Cunningham by Rosalio Hernandez was a lawful citizen's arrest for DWI, which is a breach of the peace. Accordingly, evidence obtained as a result of the arrest was properly admitted. Further, Cunningham's requested jury instruction did not properly state the applicable law. The trial court correctly refused the requested instruction. We overrule Cunningham's issues on appeal and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH