Valerie Gonzalez v. The State of Texas--Appeal from County Court at Law No 12 of Bexar County

MEMORANDUM OPINION

No. 04-05-00573-CR

Valerie GONZALEZ,

Appellant

v.

The STATE of Texas ,

Appellee

From the County Court at Law No. 12, Bexar County, Texas

Trial Court No. 867513

Honorable Michael E. Mery , Judge Presiding

Opinion by: Karen Angelini , Justice

Sitting: Sarah B. Duncan , Justice

Karen Angelini , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: July 26, 2006

AFFIRMED

After her motion to suppress was denied, Valerie Gonzalez pled guilty to the misdemeanor offense of driving while intoxicated and was sentenced to five months of confinement in jail and a fine of $770.00. Her sentence was then suspended, and she was placed on community supervision for nine months. She appeals, arguing that the trial court should have granted her motion to suppress. We affirm.

Background

On November 1, 2003, at approximately 4:45 a.m., Valerie Gonzalez, a student, was driving west on George Brackenridge, a road on the campus of the University of Texas at San Antonio ("UTSA"). According to Officer Joshua Robinson of the UTSA Police Department, Gonzalez ignored a stop sign and then turned right (north) onto Walter Brennan, a street running somewhat perpendicular to George Brackenridge. Officer Robinson's patrol car was facing north, approximately 100 to 200 feet from the intersection. He followed Gonzalez for approximately one-half mile before engaging the lights of his patrol car. In response, Gonzalez turned into a parking lot and pulled into a parking spot. Officer Robinson approached Gonzalez's vehicle and asked for her driver's license and proof of insurance. According to Officer Robinson, Gonzalez smelled of alcohol. Based on his observations, Officer Robinson decided to administer the standardized field sobriety tests.

While administering the field sobriety tests, Officer Robinson noted eight clues indicating that Gonzalez was impaired and decided to arrest Gonzalez for the offense of driving while intoxicated. Gonzalez consented to a breathalyzer test, and an hour and a half after being stopped, she took two tests two minutes apart. The results of the tests showed a blood alcohol content of .171 and of .167 respectively.

Gonzalez filed a motion to suppress, and after a hearing, her motion was denied. She appeals, arguing that the trial court erred in denying the motion because (1) Officer Robinson did not have reasonable suspicion to believe that she committed a traffic offense, and (2) she was not operating her vehicle in a public place.

Motion to Suppress

We review the trial court's ruling on a motion to suppress for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Under this standard, we afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. When reviewing a trial court's ruling on a mixed question of law and fact, we review de novo the trial court's application of the law to the facts of the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). However, we afford almost total deference to the trial court's evaluation of the credibility and demeanor of the witnesses. Id. And, when there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court's ruling. Id. The trial court's ruling must be upheld if it is correct under any theory of law applicable to the case. Id.

First, Gonzalez argues that Officer Robinson did not have reasonable suspicion to initiate the traffic stop. Officer Robinson testified at the suppression hearing that he observed Gonzalez disregard a stop sign. According to Officer Robinson, although Gonzalez engaged her brakes, she did not come to a complete stop.

Section 544.010 of the Texas Transportation Code requires a driver approaching an intersection with a stop sign to stop before entering the crosswalk on the near side of the intersection. Texas Transp. Code Ann. 544.010 (Vernon 1999) (emphasis added). Gonzalez argues that the stop sign in question was not at an "intersection" as defined by section 541.303. Section 541.303 defines an intersection as the following:

(a) In this subtitle, "intersection" means the common area at the junction of two highways, other than the junction of an alley and a highway.

(b) The dimensions of an intersection include only the common area:

(1) within the connection of the lateral curb lines or, in the absence of curb lines, the lateral boundary lines of the roadways of intersecting highways that join at approximate right angles; or

(2) at the place where vehicles could collide if traveling on roadways of intersecting highways that join at any angle other than an approximate right angle.

(c) Each junction of each roadway of a highway that includes two roadways at least 30 feet apart with the roadway of an intersecting highway, including each roadway of an intersecting highway that includes two roadways at least 30 feet apart, is a separate intersection.

See id. 541.303.

According to Gonzalez, the intersection of George Brackenridge and Walter Brennan does not meet this statutory definition because the two streets "do not evenly intersect." We disagree. The evidence at the suppression hearing showed that although the two streets were not joined at right angles, the intersection of the two streets did meet the definition of subpart (b)(2). See id. 541.303(b)(2).

Gonzalez also complains that from Officer Robinson's position of 100 to 200 feet away from the intersection, he could not have possibly seen Gonzalez ignore the stop sign. Officer Robinson, however, testified that from his position, he saw Gonzalez ignore the stop sign. We must defer to the trial court on such credibility issues. See Estrada, 154 S.W.3d at 607.

Finally, Gonzalez argues that the evidence at the suppression hearing did not show that she was operating her vehicle in a public place. A person commits the offense of driving while intoxicated if the person "is intoxicated while operating a motor vehicle in a public place." Tex. Pen. Code Ann. 49.04(a) (Vernon 2003). According to Gonzalez, the UTSA campus is not a "public place."

For support, Gonzalez cites sections 51.202, 51.203, and 51.209 of the Texas Education Code. Section 51.201, not cited by Gonzalez, states that "[a]ll the general and criminal laws of the state are declared to be in full force and effect within the areas under the control and jurisdiction of the state institutions of higher education of this state." Tex. Educ. Code Ann. 51.201 (Vernon 2006). Section 51.202 allows a state institution of higher education to

promulgate rules and regulations for the safety and welfare of students, employees, and property, and other rules and regulations it may deem necessary to carry out the provision of this subchapter and the governance of the institution, providing for the operation and parking of vehicles on the grounds, streets, drives, alleys, and any other institutional property under its control . . .

Id. 51.202. Section 51.203 allows an institution of higher education to employ and commission peace officers for the purpose of carrying out the provisions of the subchapter. Id. 51.203. And, according to section 51.209, an institution of higher education "may refuse to allow persons having no legitimate business to enter on property under [the institution]'s control, and may eject any undesirable person from the property on his refusal to leave peaceably on request." Id. 51.209.

Relying on these provisions, Gonzalez argues that because UTSA may refuse to allow persons on the campus, the campus is not a public place. We disagree. The Texas Penal Code defines "public place" as the following:

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. 2005). This list is nonexclusive. In considering whether an area is a public place, the relevant inquiry is whether the public has access to it. Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.--Fort Worth 2003, no pet.); Loera v. State, 14 S.W.3d 464, 467 (Tex. App.--Dallas 2000, no pet.); Woodruff v. State, 899 S.W.2d 443, 445-46 (Tex. App.--Austin 1995, pet. ref'd). Even though UTSA has the right to refuse entry to the campus and to eject certain persons from the campus, the general public still has access to the campus. There is nothing preventing any member of the public from entering the UTSA campus. See Kindle v. State, No. 05-01-01818-CR, 2003 WL 22707234, at *3 (Tex. App.--Dallas 2003, no pet.) (holding that hotel parking lot was a public place because public had access to drive through lot); see also Woodruff, 899 S.W.2d at 445-46 (holding that military base was public place).We, therefore, hold that Gonzalez was operating her vehicle in a public place.

Conclusion

Because the trial court did not err in denying Gonzalez's motion to suppress, we affirm the judgment of the trial court.

Karen Angelini , Justice

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