i 

No. 03-15-00079-CR

__________________________________________________________ 

IN THE COURT OF APPEALS FOR THE THIRD 

DISTRICT OF TEXAS 

__________________________________________________________ 

DAVID KENT THACKER, Appellant 

v.

THE STATE OF TEXAS, Appellee

__________________________________________________________ 

On Appeal from the 207th Judicial District Court of Comal County, Texas 

 Cause No. CR2013-096 

Honorable Jack Robison, District Judge Presiding 

__________________________________________________________ 

 

BRIEF FOR THE STATE 

__________________________________________________________ 

Jennifer Tharp 

Criminal District Attorney 

By

Joshua D. Presley 

SBN: 24088254 

Assistant District Attorney 

150 N. Seguin Avenue, Suite #307 

(830) 221-1300 

Fax (830) 608-2008 

New Braunfels, Texas 78130 

E-mail: preslj@co.comal.tx.us 

Attorney for the State 

Oral Argument Is Requested

ACCEPTED

03-15-00079-CR

6836382

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/8/2015 11:32:44 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/8/2015 11:32:44 PM JEFFREY D. KYLE Clerk
ii

Identity of Parties and Counsel

Attorneys for the Appellant David Kent Thacker

AT TRIAL & ON APPEAL

Gerald C. Moton

Moton Law Office

PMB 248 

San Antonio, TX 78216

Tel: (830) 221-1300

Fax: (830) 620-5599

Email: motongerald32@gmail.com

Attorneys for the Appellee, The State of Texas

AT TRIAL 

Daniel Palmitier

Assistant District Attorney

COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE

150 N. Seguin Avenue, Suite 307

New Braunfels, Texas 78130

Telephone: (830) 221-1300

Facsimile: (830) 608-2008

Email: palmid@co.comal.tx.us

ON APPEAL

Joshua D. Presley - SBN# 24088254

Assistant District Attorney

COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE

150 N. Seguin Avenue, Suite 307

New Braunfels, Texas 78130

Telephone: (830) 221-1300

Facsimile: (830) 608-2008

Email: preslj@co.comal.tx.us
iii

Table of Contents

Index of Authorities ............................................................................................v

Statement of the Case..........................................................................................1

Statement of Facts...............................................................................................2

Facts Learned During Tucker’s Initial Encounter with Appellant Gave Rise to 

Reasonable Suspicion for an Investigatory Stop...............................................7

Summary of the Argument........................................................................7

A. Officer Tucker observed that Appellant’s vehicle was in violation of § 

545.302 of the Transportation Code ...........................................................9

B. Officer Tucker could have investigated Appellant’s car parked on the 

railroad tracks pursuant to the community caretaking function ..................10

C. Facts learned from Tucker’s and Flugrath’s observations of Appellant led 

to reasonable suspicion justifying an investigative detention .....................15

Miranda Warnings Are Not Required at the Outset of an Investigatory 

Detention.........................................................................................................19

Summary of the Argument......................................................................19

Argument................................................................................................20

The Evidence Was Legally Sufficient to Convict Appellant of Operating a 

Motor Vehicle in a Public Place......................................................................25

Summary of the Argument......................................................................25

Argument................................................................................................28

Appellant’s Sentence Did Not Violate the Constitutional Prohibition on Cruel 

and Unusual Punishment................................................................................37

Summary of the Argument......................................................................37
iv

Argument................................................................................................38

Summary of Historical Developments in Eighth Amendment Caselaw ......40

Prayer...............................................................................................................58

Certificate of Service ........................................................................................59

Certificate of Compliance..................................................................................59

Appendix..........................................................................................................60
v

Index of Authorities

Statutes, Rules & Secondary Sources

Tex. Pen. Code Ann. § 1.07(a)(40) 

(West, Westlaw through 2015 R.S.)...................................................................34

Tex. Transp. Code Ann. § 545.302 (West, Westlaw through 2015 R.S.)....... passim

Tex. R. App. P. 33.1(a) .....................................................................................10

Tex. R. App. P. 38.1(h) .....................................................................................10

Tex. R. Evid. 103(a)(1) .....................................................................................21

Cases

Abernathy v. State, 963 S.W.2d 822 (Tex. 

App.—San Antonio 1998, pet. ref’d).................................................................22

Balentine v. State, 71 S.W.3d 763 (Tex. 

Crim. App. 2002)................................................................................................8

Belcher v. State, 244 S.W.3d 531 (Tex. 

App.—Fort Worth 2007, no pet.).......................................................................18

Brown v. State, 649 S.W.2d 160 (Tex. 

App.—Austin 1983, no pet.)..............................................................................28

Cortez v. State, 08-02-00363-CR, 2004 

WL 178587 (Tex. App.—El Paso Jan. 29, 

2004, pet. ref’d)................................................................................................27

Davidson v. State, 03-13-00708-CR, 2014 

WL 3809813 (Tex. App.—Austin Aug. 1, 

2014, no pet.) (not designated for 

publication) ...........................................................................................39, 40, 57
vi

Ewing v. California, 538 U.S. 11 (2003) ............................................................51

Fowler v. State, 65 S.W.3d 116 (Tex. 

App.—Amarillo 2001, no pet.)..........................................................................36

Garcia v. State, 43 S.W.3d 527 (Tex. 

Crim. App. 2001).......................................................................................... 8, 14

Garza Gonzalez v. State, 783 S.W.2d 

774 (Tex. App.—Corpus Christi 1990, 

no pet.)....................................................................................................... 21, 22

Gonzales v. State, 369 S.W.3d 851 (Tex. 

Crim. App. 2012)....................................................................................... passim

Graham v. West Virginia, 224 U.S. 616 

(1912) ........................................................................................................ 40, 41

Hall v. State, AP-75,121, 2007 

WL 1847314 (Tex. Crim. App. June 27, 

2007).......................................................................................................... 16, 18

Harmelin v. Michigan, 501 U.S. 957 

(U.S. 1991).......................................................................................................50

Hearne v. State, 80 S.W.3d 677 (Tex. 

App.—Houston [1st Dist.] 2002, no pet.)...........................................................31

Hernandez v. State, 599 S.W.2d 614 (Tex. 

Crim. App. 1980) (op. on reh’g) ........................................................................21

Hernandez v. State, 107 S.W.3d 41 (Tex. 

App.—San Antonio 2003, pet. ref’d).................................................................22

Herrera v. State, 241 S.W.3d 520 (Tex. 

Crim. App. 2007)..............................................................................................22
vii

Holloman v. State, 11-95-275-CR, 1995 

WL 17212433 (Tex. App.—Eastland Dec. 

21, 1995, pet. ref’d) (not designated for 

publication) ......................................................................................................35

Hutto v. Davis, 454 U.S. 370 (U.S. 1982)........................................... 43-45, 49-50

Jackson v. Virginia, 443 U.S. 307 (1979)..................................................... 26, 28

Jacobs v. State, 80 S.W.3d 631 (Tex.App.

—Tyler 2002; no pet.).......................................................................................55

Jordan v. State, 2-05-364-CR, 2006 WL 

2310531 (Tex. App.—Fort Worth Aug. 

10, 2006, no pet.)..............................................................................................24

Kiffe v. State, 361 S.W.3d 104 (Tex. App.

—Houston [1st Dist.] 2011, pet. ref’d)......................................................... 26, 27

Kirsch v. State, 357 S.W.3d 645 (Tex. 

Crim. App. 2012)..............................................................................................29

Kuciemba v. State, 310 S.W.3d 460 (Tex. 

Crim. App. 2010)..............................................................................................33

Margraves v. State, 34 S.W.3d 912 (Tex. 

Crim. App. 2000)..............................................................................................28

McGruder v. Puckett, 954 F.2d 313 (5th 

Cir. 1992)....................................................................................................52-54

Mitten v. State, 228 S.W.3d 693 (Tex. 

App.—Corpus Christi 2005, pet. ref’d, 

untimely filed)..................................................................................................23

Priego v. State, 457 S.W.3d 565 (Tex. 

App.—Texarkana 2015), petition for 

discretionary review refused (June 3, 

2015)...........................................................................................................29-32
viii

Pryor v. State, 03-13-00347-CR, 2015 

WL 2066228 (Tex. App.—Austin May 1, 

2015) (not designated for publication), 

petition for discretionary review filed

(Aug. 6, 2015) ..................................................................................................39

Rachal v. State, 917 S.W.2d 799 (Tex. 

Crim. App. 1996)..............................................................................................17

Roberson v. State, 16 S.W.3d 156 (Tex. 

App.—Austin 2000, pet. ref’d).................................................................... 27, 28

Rockwell v. State, AP-76,737, 2013 WL 

6529575 (Tex. Crim. App. Dec. 11, 2013) 

(not designated for publication) .........................................................................27

Rubeck v. State, 61 S.W.3d 741 (Tex. 

App.—Fort Worth 2001, no pet.).........................................................................9

Rummel v. Estelle, 445 U.S. 263 (U.S. 

1980)......................................................................................................... passim

Russeau v. State, 291 S.W.3d 426 (Tex. 

Crim. App. 2009)..............................................................................................10

Shaub v. State, 99 S.W.3d 253 (Tex. App.

—Fort Worth 2003, no pet.)........................................................................ 34, 35

Simmons v. State, 14-07-00301-CR, 2008 

WL 2580380 (Tex. App.—Houston [14th 

Dist.] July 1, 2008, no pet.)...............................................................................10

Smith v. State, 683 S.W.2d 393, 410 (Tex. 

Crim. App. 1984)..............................................................................................10

Solem v. Helm, 463 U.S. 277 (U.S. 1983)......................................................46-49

State v. Duran, 396 S.W.3d 563 (Tex. 

Crim. App. 2013)........................................................................................ 16, 18
ix

State v. Gray, 158 S.W.3d 465 (Tex. Crim. 

App. 2005) .........................................................................................................8

State v. Villarreal, PD-0306-14, 2014 WL 

6734178 (Tex. Crim. App. Nov. 26, 2014), 

reh’g granted (Feb. 25, 2015)............................................................................24

State v. Waldrop, 7 S.W.3d 836 (Tex. App.

—Austin 1999, no pet.).....................................................................................21

Tanner v. State, 228 S.W.3d 852 (Tex. 

App.—Austin 2007, no pet.)....................................................................... passim

Terry v. Ohio, 392 U.S. 1 (1968) .......................................................................15

Trevino v. State, 07-04-0066-CR, 2005 WL 

1404037 (Tex. App.—Amarillo June 15, 

2005, pet. ref'd) (not designated for 

publication) ......................................................................................................56

Tufele v. State, 130 S.W.3d 267 (Tex. App.

—Houston [14th Dist.] 2004, no pet.)................................................................10

U.S. v. Arvizu, 534 U.S. 266, 273 (2002)............................................................15

Wiede v. State, 214 S.W.3d 17 (Tex. Crim. 

App. 2007) .........................................................................................................8

Wiegand v. State, 03-98-00303-CR, 1999 

WL 546844, at *1 (Tex. App.—Austin 

July 29, 1999, pet. ref’d) (not designated 

for publication)............................................................................................. 9, 18

Winfrey v. State, 393 S.W.3d 763 (Tex. 

Crim. App. 2013), reh’g denied (Apr. 17, 

2013)................................................................................................................26
1

Statement of the Case

Appellant was charged by indictment with Driving While Intoxicated with 

Two or More Previous Convictions for the Same Type of Offense (I C.R. at 6). 

The charge was enhanced from a third degree felony to habitual offender status 

(id.). Although the trial court initially denied Appellant’s motion to suppress the 

results of his warrantless blood draw, it later reconsidered and granted the motion 

to suppress, apparently based solely on the holding in “The State of Texas v. David 

Villareal, P.D. 0306-14” (id. at 146). 

Appellant plead not guilty and was subsequently convicted by a jury (I Supp. 

C.R. at 4). After hearing evidence and argument, punishment was also assessed by 

the jury at life imprisonment on January 28, 2015 (id.). Appellant timely filed his 

notice of appeal. 
2

Statement of Facts

On the night of Saturday, September 14, 2012, Officer Jason Tucker 

responded to a report of a vehicle on the railroad tracks (II R.R. at 9; IV R.R. at 

55).1 At the railroad’s dark and sparsely-populated intersection with FM 306, 

Tucker observed a maroon Cadillac parked about 20 feet off the roadway and right 

next to the tracks (II R.R. at 10; Defense Ex. 1 at 11:29:50 p.m.; State’s Ex. 2 

11:29:50)).2Tucker realized that any passing train would have struck the Cadillac 

(II R.R. at 10; IV R.R. at 57). Before he exited his patrol car, Tucker had police 

dispatch contact the Union Pacific railroad company to have them stop all trains on 

the track (VI R.R. at 6; IV R.R. at 59). 

As Tucker approached the vehicle, he saw that the vehicle was still running 

(VI R.R. at 6; IV R.R. at 64). He shined his flashlight into the car and observed 

Appellant, David Thacker, sitting in the driver’s seat (VI R.R. at 6; IV R.R. at 57). 

Appellant was slumped over the center console and was sound asleep (VI R.R. at 

6; IV R.R. at 57). Tucker made his way to the driver’s side of the car and 

attempted to wake Appellant up (VI R.R. at 6; IV R.R. at 57). Tucker was 

 

1

For quick reference, the Statement of Facts includes parallel citations to the suppression 

hearing first (II R.R., VI R.R. at 6-7, or Defense Ex. 1) followed by a citation to the trial itself 

(IV R.R. or State’s Ex. 2) where the information appears in both records. 

2 All times listed in this brief refer to the integrated timestamps in the videos depicting the actual 

hour, minute and second. Furthermore, the timestamp references to Defense Ex. 1 (entered into 

evidence at the motion to suppress), and State’s Ex. 2 (entered into evidence at trial), will be the 

same. 
3

eventually able to wake the Appellant by shaking and yelling at him (VI R.R. at 6; 

IV R.R. at 57). Appellant was disoriented and incoherent, and Tucker noticed a 

strong odor of alcohol coming from the vehicle (II R.R. at 12; IV R.R. at 57-59, 

62). When Tucker told Appellant to hop out of the car, Appellant said he would 

drive (Defense Ex. 1 at 11:32:10; State’s Ex. 2 at 11:32:10). 

Tucker told Appellant to put his flip-flop on so he could get out of the car, 

and Appellant struggled to get it on his foot (id.; IV R.R. at 58). When Appellant 

finally exited the vehicle, he had to use the Cadillac’s door as a crutch, and 

appeared to be “pretty unsteady on his feet” (II R.R. at 12; see also IV R.R. at 58). 

Because Tucker was worried about their dangerous location, he immediately

escorted Appellant to his patrol car, holding Appellant’s arm to help him maintain 

his balance (II R.R. at 12-13; VI R.R. at 6; IV R.R. at 58). Appellant stood by 

Tucker’s patrol vehicle – leaning on the grill guard for support – while Tucker 

returned to the Cadillac (II R.R. at 13; IV R.R. at 58-59). Tucker moved the 

Cadillac a safe distance away from the tracks, had dispatch call Union Pacific to 

inform them the line was now clear, and returned to the Appellant (VI R.R. at 6-7; 

IV R.R. at 58-60 (omitting reference to the subsequent call to Union Pacific)). 

Appellant said he lived in Canyon Lake, Texas (Defense Ex. 1 at 11:37:40; 

State’s Ex. 2 at 11:37:40). Tucker could smell a strong odor of alcohol coming 

from Appellant (VI R.R. at 7; IV R.R. at 59 (metabolized alcohol)). Tucker also 
4

noticed that Appellant’s speech was slurred, and his eyes were bloodshot and 

glassy (II R.R. at 14; IV R.R. at 62). Appellant said he had been with some friends, 

and he was going to another friend’s house in Boerne (Defense Ex. 1 at 11:37:50, 

11:39:10; State’s Ex. 2 at 11:37:50, 11:39:10). When Tucker asked Appellant 

where he was, he believed he was in Boerne (Defense Ex. 1 at 11:38:10; State’s 

Ex. 2 at 11:38:10). Appellant said he “may have made a mistake” (Defense Ex. 1 at 

11:38:28; State’s Ex. 2 at 11:38:28). When Tucker asked “[h]ow much have you 

had to drink, partner?” Appellant responded “[t]oo much” (Defense Ex. 1 at 

11:40:24; State’s Ex. 2 at 11:40:24). Tucker pointed out that if a train had come by 

Appellant probably would have been killed, and Appellant said he “didn’t want 

that” (Defense Ex. 1 at 11:40:30; State’s Ex. 2 at 11:40:30).

Appellant told Tucker that his mother could come pick him up, adding that 

he knew he “messed up” (Defense Ex. 1 at 11:43:52; State’s Ex. 2 at 11:43:52). 

Tucker explained that there would be an investigation, stating that “we’re far from 

making a decision – [on] what we’re gonna do tonight” (Defense Ex. 1 at 11:43:52; 

State’s Ex. 2 at 11:43:52). Appellant again stated “I know I messed up. I 

apologize” (Defense Ex. 1 at 11:44:13; State’s Ex. 2 at 11:44:13). Tucker told 

Appellant that Officer Flugrath would ask him some questions to figure out what 

was going on (Defense Ex. 1 at 11:44:13; State’s Ex. 2 at 11:44:13). 
5

Officer Flugrath arrived soon after Tucker (Defense Ex. 1 at 11:41:15; 

State’s Ex. 2 at 11:41:15). Flugrath had extensive experience with Driving While 

Intoxicated investigations (II R.R. at 39; VI R.R. at 9; IV R.R. at 85-86). When he 

walked up to Tucker and Appellant, Flugrath observed that Appellant appeared to 

be very disoriented (II R.R. at 35; IV R.R. at 88). After speaking with Tucker, 

Flugrath asked Appellant to come over to his vehicle so he could continue the 

interview (II R.R. at 35; IV R.R. at 90). 

Flugrath likewise observed Appellant’s glassy, bloodshot eyes and the 

strong odor of alcohol coming from Appellant (II R.R. at 36-37; IV R.R. at 90). 

Appellant said he had been visiting a friend in New Braunfels (VI R.R. at 10; 

State’s Ex. 3-A at 11:47:03). Appellant said “I know I’m in trouble,” and “I’m the 

worst” (State’s Ex. 3-A at 11:47:48). Appellant thought it was 11:30 p.m., and told 

Flugrath he had left his friend’s house around 10:30 p.m. (State’s Ex. 3-A at 

11:48:33; see also II R.R. at 37). Appellant told Flugrath that he had been alone in 

the car and that he remembered driving over the tracks, but did not remember 

parking next to them (II R.R. at 37; State’s Ex. 3-A at 11:49:10; IV R.R. at 92). 

Appellant said “[a]pparently I made a mistake because if I was on a railroad track I 

apologize” (State’s Ex. 3-A at 11:50:28; see also II R.R. at 39). When asked how 

much he drank at his friend’s house, Appellant said “enough” (II R.R. at 37; 

State’s Ex. 3-A at 11:50:55). 
6

Flugrath performed the Horizontal Gaze Nystagmus test on Appellant, 

observing all six clues out of a possible six (II R.R. at 38; IV R.R. at 100). When 

the officer tried to have Appellant perform the walk-and-turn, Appellant said he 

could not do anything heel-to-toe (II R.R. at 39; IV R.R. at 102). When asked to 

perform the one-legged stand, Appellant refused, saying he was used to carrying 

200-pound weights on his shoulders and could not balance without them (II R.R. at 

39; State’s Ex. 3-A at 11:58:50). Flugrath then asked Appellant to recite the 

alphabet; Appellant recited “A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, M, M, 

L, M, N, O, P. Then he paused for a minute. Q, R, S, T, U, V, W, Y, X. Then he 

paused again, and then Y, Z” (II R.R. at 40; see also IV R.R. at 106). Appellant 

then said he could not perform the Romberg test because he was once in a rollover 

accident and could not tilt his head back (II R.R. at 40; State’s Ex. 3-A at 

12:00:50). Appellant then offered his hands behind his back so Flugrath could 

handcuff him (State’s Ex. 3-A at 12:01:00).

Flugrath read Appellant his DIC-24 warning and Appellant refused to give a 

voluntary sample of his blood (II R.R. at 41-42; State’s Ex. 3-A at 12:05:30, 

12:09:55). After Appellant’s arrest, Tucker performed an inventory search of the 

vehicle and located an open container of Calypso Spiced Rum – 1⁄4 of it missing –

in the passenger floorboard of the Cadillac (II R.R. at 15; IV R.R. at 63). Officer 

Tucker observed that “[a]s drunk as he is, he had to be drinking something else, 
7

cause there wasn’t enough missing out of that bottle to be that drunk” (Defense Ex. 

1. at 12:12:24; State’s Ex. 2 at 12:12:24). At trial, both Flugrath and Tucker 

testified that based on their training and experience, Appellant was too intoxicated 

to drive that night (IV R.R. at 77, 106-07; see also II R.R. at 40-41). 

Facts Learned During Tucker’s Initial Encounter with Appellant

Gave Rise to Reasonable Suspicion for an Investigatory Stop

Summary of the Argument

Although Appellant complains that his arrest was made without a warrant, at 

the time of his arrest, officers had developed probable cause to believe he had been 

Driving While Intoxicated. Officer Tucker’s initial encounter with Appellant was 

not a “stop” – though Tucker would have been justified in “stopping” Appellant for 

an apparent violation of the Transportation Code or pursuant to the community 

caretaking function. Facts learned during Tucker’s encounter – communicated to 

Officer Flugrath – gave rise to reasonable suspicion to investigate Appellant for 

Driving While Intoxicated, and the subsequent investigative detention gave rise to 

probable cause for the arrest. 

Motion to Suppress Standard of Review

When reviewing a trial court’s decision on a motion to suppress, appellate 

courts will give almost total deference to the trial court’s determination of 
8

historical facts, but review de novo its application of the law to the facts. Tanner v. 

State, 228 S.W.3d 852, 856 (Tex. App.—Austin 2007, no pet.) (citing Maxwell v. 

State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002)). However, appellate courts 

should also give almost total deference to a trial court’s application of the law to 

fact questions that turn on credibility and demeanor. Garcia v. State, 43 S.W.3d 

527, 530 (Tex. Crim. App. 2001) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. 

Crim. App. 1997)).

Where trial courts do not make explicit findings of fact, the appellate court 

will review the evidence in a light most favorable to the trial court’s ruling and 

assume it made implicit findings of fact supported by the record. Wiede v. State, 

214 S.W.3d 17, 25 (Tex. Crim. App. 2007); Balentine v. State, 71 S.W.3d 763, 768 

(Tex. Crim. App. 2002) (citing Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.

Crim. App. 2000)) (internal citations omitted). “[C]ourts afford the prevailing party 

‘the strongest legitimate view of the evidence and all reasonable inferences that 

may be drawn from that evidence.” Gonzales v. State, 369 S.W.3d 851, 854 (Tex. 

Crim. App. 2012). Courts must sustain the trial court’s ruling if it is reasonably 

supported by the record and is correct on any theory of law applicable to the case. 

State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005) (citing State v. Ross, 

32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000)).
9

A. Officer Tucker observed that Appellant’s vehicle was in violation of § 

545.302 of the Transportation Code. 

Section 545.302 of the Transportation Code prohibits stopping, standing, or 

parking in certain areas. Tex. Transp. Code Ann. § 545.302 (West, Westlaw 

through 2015 R.S.). It states that “[a]n operator may not stop, stand, or park a 

vehicle: ... on a railroad track ....” Id. § 545.302(a)(8); see also id. § 545.302 

(c)(1) (prohibiting parking “within 50 feet of the nearest rail of a railroad 

crossing”).

At the suppression hearing, Tucker testified that while he did not know the 

specific provision, “the way [Appellant] was parked ... is a violation of the Traffic 

Code of some sort” (II R.R. at 18; id. at 10 (Appellant was parked only 20 feet off 

the roadway and right next to the track)). Because Appellant was parked in 

violation of § 545.302, even if the encounter can be considered a “stop” (see infra), 

Tucker had at least reasonable suspicion that Appellant had committed a traffic 

offense. From his subsequent observation of Appellant, Tucker learned additional 

facts leading to reasonable suspicion to investigate for Driving While Intoxicated. 

See Rubeck v. State, 61 S.W.3d 741, 745 (Tex. App.—Fort Worth 2001, no pet.) 

(“Once a police officer makes a bona fide stop for a traffic offense, he may also 

investigate any other offense that he reasonably suspects has been committed.”); 

Wiegand v. State, 03-98-00303-CR, 1999 WL 546844, at *1 (Tex. App.—Austin 

July 29, 1999, pet. ref’d) (not designated for publication) (where officer initially 
10

stopped appellant for traffic violation, appellant’s manner of speech and the odor 

of alcohol on his breath gave rise to reasonable suspicion to investigate for DWI). 

As discussed infra, Tucker communicated these facts to Flugrath, and Appellant’s 

contention that Flugrath lacked reasonable suspicion for the investigative detention 

therefore lacks merit. 

B. Officer Tucker could have investigated Appellant’s car parked on the 

railroad tracks pursuant to the community caretaking function. 

Although Appellant recites some of the standard of review for community 

caretaking stops, he does not apparently challenge Tucker’s ability to rely on the 

community caretaking function in the instant case. See Brief for Appellant at 12, 

17-20. The lack of any specific argument or citations to the record regarding the 

caretaking function should preclude review of that issue. See Tex. R. App. P. 

33.1(a), 38.1(h), (i); Smith v. State, 683 S.W.2d 393, 410 (Tex. Crim. App. 1984) 

(holding that nothing was preserved for appellate review when appellant did not 

cite authority and did not present argument on issue); Russeau v. State, 291 S.W.3d 

426, 437 (Tex. Crim. App. 2009) (appellant failed to point out in record where he 

made argument to the trial court); Tufele v. State, 130 S.W.3d 267, 270-71 (Tex. 

App.—Houston [14th Dist.] 2004, no pet.). However, out of an abundance of 

caution, the State will address it.
11

Community Caretaking Standard of Review

“‘As a part of his duty to ‘serve and protect,’ a police officer may stop and 

assist an individual whom a reasonable person, given the totality of the 

circumstances, would believe is in need of help.’” Gonzales v. State, 369 S.W.3d 

851, 854 (Tex. Crim. App. 2012) (emphasis in original). In evaluating a 

community-caretaking stop, courts will determine whether the officer was 

primarily motivated by the community-caretaking purpose and whether the 

officer’s belief that the individual needed help was reasonable. Id. at 854-55. To 

determine the reasonableness of the officer’s belief, the Court of Criminal Appeals 

proposed a non-exclusive list of factors to consider:

(1) the nature and level of the distress exhibited by the individual; (2) 

the location of the individual; (3) whether or not the individual was 

alone and/or had access to assistance independent of that offered by 

the officer; and (4) to what extent the individual—if not assisted—

presented a danger to himself or others.

Id. at 855. The first factor is generally accorded the greatest weight but is not 

always dispositive. Id. The unique facts of each case determine the result, and 

different factors may be inapplicable or have varying weights in a given case. Id. 

In Gonzales, the officer observed the defendant’s vehicle pull off the road 

just before 1:00 a.m. in an area with few business and little traffic. Id. at 853. 

When the officer decided to see if the driver needed assistance, he activated his 

traffic lights and began to pull onto the shoulder behind the defendant’s vehicle. Id. 
12

The defendant began to drive away, but quickly stopped. Id. When the officer 

approached to ask the defendant if he was okay, he noticed a strong odor of alcohol 

coming from the vehicle, and that the defendant’s eyes were bloodshot and his 

speech was slurred. Id. The officer then began a driving-while-intoxicated 

investigation. Id. 

The Court of Criminal Appeals observed that it would not second-guess the 

trial court’s determination that the officer was primarily motivated by his public -

safety role. Id. at 855. The Court deferred to the trial court’s determination of that 

issue because it was highly dependent on credibility and demeanor. Id. The Court 

then evaluated the reasonableness of the officer’s belief that the defendant needed 

help. First, it was reasonable based on the officer’s observations and inferences to 

believe the defendant was experiencing some form of distress. Id. at 856. Second, 

the location compounded the defendant’s distress, in that the events took place in a 

lightly populated area on the way out of town, with minimal traffic at that late 

hour. Id. Third, the defendant’s location also limited his access to assistance. Id. 

The Court afforded little weight to the fourth factor – whether the unassisted 

defendant was a danger to himself or others – because of its awkward fit with the 

facts of that case. Id. at 856-57. The Court found that the officer’s belief that the 

defendant needed help was reasonable under the totality of the circumstances. Id. 

at 857. 
13

Analysis

Appellant appears to concede that Officer Tucker’s initial check on 

Appellant was justified by the community caretaking exception. See Brief for 

Appellant at 19 (Appellant only contests Officer Flugrath’s investigation). 

Furthermore, at the outset it is important to note that Appellant was not “seized” 

when Tucker first came to investigate and determine why he was parked on the 

tracks because Appellant was unconscious in his car (II R.R. at 10-12). See Crain 

v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010) (whereas an investigative 

detention occurs “when a person yields to the police officer’s show of authority 

under a reasonable belief that he is not free to leave,” a consensual encounter is not 

a seizure). Though Appellant’s encounter with Tucker was not truly a “seizure” 

until sometime after Tucker learned of information warranting reasonable 

suspicion to conduct an investigative detention, even if it was a community 

caretaking “stop,” it would have been justified on the extraordinary facts of the 

case. 

There was ample support in the record for the trial court to determine that

Tucker was primarily motivated by the community-caretaking function. See 

Statement of Facts at 2-6; II R.R. at 10 (Tucker testified that Appellant’s car was 

close enough to the active railroad tracks that any train would have collided with 

it); id. at 12-13 (“Knowing that we had a danger involved,” Tucker did not 
14

immediately ask questions, instead escorting Appellant to safety). Because the trial 

court’s implied finding on this issue is highly dependent on credibility and 

demeanor, the Court should defer to the trial court’s finding in the State’s favor. 

See Garcia, 43 S.W.3d at 530; see also Gonzales, 369 S.W.3d at 855. 

When evaluating the reasonableness of the officer’s belief that the defendant 

needed help, just as in Gonzales, the Appellant was located in a lightly-populated 

area at a late hour with relatively little traffic. See Defense Ex. 1 at 11:29:50 p.m. 

Over and above Gonzales, however, Tucker (and the private citizen who called the 

police) could infer distress from the fact that Appellant was parked on an active 

railroad track. See id.; II R.R. at 12-13. This potentially deadly location 

compounded Appellant’s distress exponentially more than the mere “isolation” of 

the defendant in Gonzales. Compare with 369 S.W.3d at 856. Furthermore, while 

in both cases there was little chance of independent assistance, in Appellant’s case, 

Tucker was aware of the fact that a private citizen had called the police to handle 

the issue. See II R.R. at 9, 18. This fact further established that – likely due to the 

inherent danger of the situation – there would be no intervention independent of 

the police. Finally, while in Gonzales the final factor was largely inapplicable, in 

Appellant’s case, there was a clear danger that if left parked on the active track, 

Appellant was at serious risk of losing his life, not to mention a potential threat for

bystanders, train passengers, or derailment. See 369 S.W.3d at 856-57. Every 
15

single factor in the instant case is far more compelling than the circumstances 

found sufficient in Gonzales, and the Court should find that any communitycaretaking stop of Appellant was likewise reasonable based on the totality of the 

circumstances. See 369 S.W.3d at 857. 

C. Facts learned from Tucker’s and Flugrath’s observations of Appellant 

led to reasonable suspicion justifying an investigative detention. 

Reasonable Suspicion Standard of Review

The Supreme Court has noted that “[t]here is ‘no ready test for determining 

reasonableness other than by balancing the need to search [or seize] against the 

invasion which the search [or seizure] entails.’” Terry v. Ohio, 392 U.S. 1, 21 

(1968) (quoting Camara v. Municipal Court, 387 U.S. 523, 534-37 (1967)). The 

reasonableness of a temporary detention must be considered in view of the totality 

of the circumstances and the cumulative information available at the inception of 

the encounter. Tanner v. State, 228 S.W.3d 852, 855 (Tex. App.—Austin 2007, no 

pet.); U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (overruled in part on other grounds 

by Davis v. Washington, 547 U.S. 813 (2006)). Courts must not isolate each fact 

and decide whether each one independently is consistent with innocent activity. 

Arvizu, 534 U.S. at 274.

Reviewing courts will factor in an officer’s training and experience when 

evaluating whether he had reasonable suspicion to justify an investigative 
16

detention. Id. at 276. The reviewing court will consider all information available to 

the officer at the time of the stop, including that obtained from his own 

observations or relayed to him by other members of law enforcement. Hall v. State, 

AP-75,121, 2007 WL 1847314, at *3 (Tex. Crim. App. June 27, 2007) (citing 

Jackson v. State, 745 S.W.2d 4, 11-17 (Tex. Crim. App. 1988)). Additionally, 

under the “collective knowledge” doctrine, the cumulative information available to 

several cooperating officers may be considered. State v. Duran, 396 S.W.3d 563, 

574 n.12 (Tex. Crim. App. 2013) (“[T]he detaining officer need not be personally 

aware of every fact that objectively supports a reasonable suspicion to detain; 

rather, ‘the cumulative information known to the cooperating officers at the time of 

the stop is to be considered in determining whether reasonable suspicion exists.’”) 

(quoting Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)). 

Reasonable suspicion that criminal activity may be afoot must be based upon 

commonsense judgments and inferences about human behavior. Tanner, 228 

S.W.3d at 855. Courts require only a “minimal level of objective justification” on 

the part of the officer. Id. (citing U.S. v. Sokolow, 490 U.S. 1, 7 (1989)). An 

officer’s determination of the likelihood of criminal activity need not rise to the 

level required for probable cause, and it falls considerably short of satisfying a 

preponderance of the evidence standard. Tanner, 228 S.W.3d at 856 (citing Arvizu, 

534 U.S. at 274). 
17

Analysis

Appellant apparently asserts that when Officer Flugrath arrived on the scene, 

he lacked information necessary to form reasonable suspicion to justify 

Appellant’s investigative detention for DWI. Brief for Appellant at 19. However, 

Flugrath had ample information from his own observations and from Tucker to 

justify the temporary investigative detention. 

Officer Tucker had been a police officer for around 12 years at the time of 

the offense (II R.R. at 9; IV R.R. at 52).3 As detailed in the statement of facts, 

supra (at 2-7), Officer Tucker initially came upon Appellant passed out in his 

running car, which was parked on an active railroad track (VI R.R. at 6). When 

Tucker finally managed to wake him, Appellant was disoriented, was very 

unsteady on his feet, had bloodshot and glassy eyes, slurred his speech, and had a 

strong odor of alcohol coming from his person (id. at 6-7). Officer Flugrath arrived

while Tucker was still speaking with Appellant, less than 10 minutes after 

Appellant woke up (Defense Ex. 1 at 11:31:22; id. at 11:41:15).

4

 

3 The State went into the officers’ training and experience in greater detail at trial. See Rachal v. 

State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (“Where the State raises the issue at trial 

either without objection or with subsequent participation in the inquiry by the defense, the 

defendant has made an election to re-open the evidence, and consideration of the relevant trial 

testimony is appropriate in our review”).

4 One court of appeals found a 27-minute delay while merely waiting for another officer 

reasonable: 

Legitimate law enforcement purposes include a delay to permit the arrival of a 

DWI enforcement officer so that the supervisory officer initiating the stop can 

return to duty, a delay for the arrival of a video camera so that the DWI 

investigation and the field sobriety tests can be taped in accordance with 
18

Officer Flugrath had been employed as a patrol officer since 1995 (II R.R. at

39) and testified that he had probably conducted over a thousand DWI stops in his 

career (IV R.R. at 85-86). Flugrath discussed the situation with Tucker – including 

the fact that Appellant was parked on the tracks – before Flugrath set up his patrol 

car and camera for sobriety testing (II R.R. at 35, 37; see also VI R.R. at 10 

(Flugrath states in his report he spoke with Tucker and verified certain facts about 

the incident). The trial court could reasonably infer that Tucker relayed his other 

observations to Flugrath. See Gonzales, 369 S.W.3d at 854. Because Flugrath 

could rely on the information Tucker gave him – along with his own personal 

observations that Appellant was looking down and was very disoriented (II R.R. at 

35), smelled strongly of alcohol and had bloodshot and glassy eyes (id. at 36-38) –

Flugrath had reasonable suspicion sufficient to justify his investigative detention 

and sobriety testing. See Hall, 2007 WL 1847314, at *3; Duran, 396 S.W.3d at 574 

n.12; Wiegand, 1999 WL 546844, at *1.

Based on the forgoing facts, an officer as experienced with DWI’s as 

Flugrath could reasonably infer there was a substantial chance Appellant – who 

was sleeping while parked on the railroad track – had been driving while 

intoxicated. See also The Evidence Was Legally Sufficient, infra (at 25). The 

 

department procedures, and a delay for the arrival of a rookie officer who needs 

training.

Belcher v. State, 244 S.W.3d 531, 540-41 (Tex. App.—Fort Worth 2007, no pet.). 
19

Court should give due weight to the trial court’s implied finding that Officers 

Tucker and Flugrath were credible and that their inferences were reasonable. See 

Tanner, 228 S.W.3d at 857; Gonzales, 369 S.W.3d at 854. When Flugrath took 

over the investigation, if he had not further investigated the situation – with all the 

cumulative evidence available to him at that point – it would have been poor police 

work. See Tanner, 228 S.W.3d at 859 (quoting Terry v. Ohio, 392 U.S. 1, 21 

(1968)). The record supports the trial court’s conclusion that Flugrath had 

reasonable suspicion that Appellant had been driving while intoxicated, based on 

commonsense inferences about human behavior in the context of the totality of 

information available to him.

Miranda Warnings Are Not Required at the Outset of an 

Investigatory Detention

Summary of the Argument

Appellant argues that because Officer Tucker believed he would undertake a 

DWI investigation, he should have immediately given Miranda warnings. 

However, even if Appellant had adequately preserved his point of error, Miranda 

warnings are not required for investigative detentions. Furthermore, in Appellant’s 

case, even if all of Appellant’s testimonial statements had been suppressed, the 

remaining overwhelming evidence would still have led to his conviction. 
20

Argument

In Appellant’s second point of error, he complains that trial court erred in 

failing to grant his broad motion to suppress “all written and oral statements made 

by Defendant to any law enforcement officers or others in connection with this 

case, and any testimony by the San Antonio Police Department or any other law 

enforcement officers or others concerning any such statements.” I C.R. at 46; see 

also Brief for Appellant at 21. Appellant claims that officers never observed a 

traffic offense, and the fact that questioning occurred at night on the side of the 

road meant Appellant was interrogated during a custodial interrogation. Brief for 

Appellant at 24. Specifically, Appellant asserts that Tucker’s belief that there 

would be a DWI investigation at the time he removed Appellant from his car 

means that Tucker should have read the Miranda warnings before he proceeded 

any further. Id. at 12.

First, Appellant’s overbroad motion to suppress “all ... statements made by 

Defendant to any law enforcement officers or others” (I C.R. at 46) is not specific 

as to the objectionable statements Appellant wished to suppress, nor did Appellant 

identify for the trial court (or this Court)5any particular statement he wished to 

 

5

See Tex. R. App. P. 33.1(a), 38.1(h), (i); Smith v. State, 683 S.W.2d 393, 410 (Tex. Crim. App. 

1984) (holding that nothing was preserved for appellate review when appellant did not cite 

authority and did not present argument on issue); Russeau v. State, 291 S.W.3d 426, 437 (Tex. 

Crim. App. 2009) (appellant failed to point out in record where he made argument to the trial 

court); Tufele v. State, 130 S.W.3d 267, 270-71 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
21

suppress. See Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. 1980)

(op. on reh’g) (observing that even if that appellant’s “objection sufficiently stated 

grounds for the objection, it did not identify what was objected to.”); see also Tex. 

R. Evid. 103(a)(1) (requiring a specific objection). Because at least some of 

Appellant’s statements were admissible (e.g., statements made while the Tucker 

was trying to get Appellant and his Cadillac safely off the tracks), Appellant’s 

failure to point out for the trial court which statement was inadmissible – based on 

what particular ground – waived error. See Garza Gonzalez v. State, 783 S.W.2d 

774, 778 (Tex. App.—Corpus Christi 1990, no pet.) (observing the appellant failed 

to adequately raise his complaint in the trial court, noting that “the necessity of 

presenting a specific objection with supporting grounds is particularly important in 

a case such as this one where the accused made more than one statement”); see 

also II R.R. at 53-55 (where Appellant did not point out specific statements or 

grounds to support suppression of those statements). 

Second, as discussed supra (at *9-10), Tucker observed that Appellant was 

parked in violation of Texas Transportation Code § 545.302. The mere fact that the 

investigatory detention occurred on the side of the road at night (Brief for 

Appellant at 24) does not transform the situation into a custodial interrogation. See 

State v. Waldrop, 7 S.W.3d 836, 839 (Tex. App.—Austin 1999, no pet.) 

(statements made during an investigatory detention on the roadside after midnight 
22

were not part of a custodial interrogation). Appellant failed to adequately explain 

to the trial court how any of his statements were made during a “custodial 

interrogation.” See Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) 

(“At trial, the defendant bears the initial burden of proving that a statement was the 

product of ‘custodial interrogation’”).

Furthermore, Appellant’s complaint on appeal that Tucker’s belief there 

would be a DWI investigation somehow necessitated a Miranda warning (Brief for 

Appellant at 12, 24) was not presented to the trial court (II R.R. at 53-55). See 

Garza Gonzales, 783 S.W.2d at 778 (because the appellant’s complaint in the trial 

court did not comport with that raised on appeal, “nothing is preserved for 

review”). Notably, even if such a complaint had been adequately presented to the 

trial court, the trial court would not have erred in rejecting it. See Hernandez v. 

State, 107 S.W.3d 41, 48 (Tex. App.—San Antonio 2003, pet. ref’d) (investigatory 

detentions do not require Miranda warnings); Abernathy v. State, 963 S.W.2d 822, 

824 (Tex. App.—San Antonio 1998, pet. ref’d) (observing the Supreme Court had 

held that a “motorist was not in custody for purposes of Miranda even though the 

traffic officer ‘apparently decided as soon as [the motorist] stepped out of his car 

that [the motorist] would be taken into custody and charged with a traffic 

offense’”); Simmons v. State, 14-07-00301-CR, 2008 WL 2580380, at *3 (Tex. 

App.—Houston [14th Dist.] July 1, 2008, no pet.) (not designated for publication) 
23

(“the right to Miranda warnings is not triggered during an investigative 

detention”). 

Finally, even if Appellant had preserved his issues and the trial court had 

erred in admitting one of Appellant’s multiple statements, in light of the other 

overwhelming evidence of Appellant’s guilt, any error would have had no – or 

only slight – influence on the verdict, and would be harmless. See Mitten v. State, 

228 S.W.3d 693, 696 (Tex. App.—Corpus Christi 2005, pet. ref’d, untimely filed). 

As discussed in the Statement of Facts, supra, Appellant was discovered slumped 

over his center console, sleeping, while parked on an active railroad track. When 

Tucker finally managed to wake him up, Appellant was sluggish, disoriented and 

incoherent (see, e.g., IV R.R. at 57). Officers noticed the strong odor of 

metabolized alcohol coming from Appellant (IV R.R. at 59, 90-91). Appellant 

struggled to put his flip-flop on (State’s Ex. 2 at 11:32:10; IV R.R. at 58). He had 

obvious problems with his balance, having to use vehicles as a crutch and needing 

the officer’s assistance to walk (IV R.R. at 58). Appellant slurred his speech, and 

his eyes were bloodshot and glassy (id. at 62). 

Furthermore, Appellant failed or refused to perform several sobriety tests, 

often giving outlandish explanations for his refusals. Statement of Facts, supra (at 

6-7). Such tests do not implicate Miranda:

The court of criminal appeals has held that sobriety tests yield 

physical evidence of a suspect’s mental and physical faculties, and 
24

thus, the results are not testimonial evidence that implicates Miranda. 

Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997) (holding 

that field sobriety tests do not violate the privilege against selfincrimination). Specifically, the court of criminal appeals has 

reasoned that field sobriety tests are not testimonial because their 

results do not create “an express or implied assertion of fact or belief.” 

Id. 

Jordan v. State, 2-05-364-CR, 2006 WL 2310531, at *2 (Tex. App.—Fort Worth 

Aug. 10, 2006, no pet.). Jordan also observed that no statute requires warnings 

prior to the administration of field sobriety tests. Id. at *3 (citing Martin v. State, 

97 S.W.3d 718, 720 (Tex. App.—Waco 2003, pet. ref’d). Appellant also refused to 

give a voluntary sample of his blood (State’s Ex. 3-A at 12:05:30, 12:09:55).6

Officers found a container of rum missing 1⁄4 of its contents in the vehicle, an 

amount which Tucker observed was insufficient to render Appellant as drunk as he 

was (State’s Ex. 2 at 12:12:24). Flugrath – who estimated he had conducted over 

1,000 DWI investigations (IV R.R. at 85-86) – testified that in his opinion 

 

6 The trial court erred in suppressing warrantless blood-draw evidence based on The State of 

Texas vs. David Villareal; this will be particularly evident if the Court of Criminal Appeals 

determines on rehearing that the blood draw statute at issue is constitutional (I C.R. at 146, citing 

P.D. 0306-14; see also Order Suppressing, attached). State v. Villarreal, PD-0306-14, 2014 WL 

6734178, at *1 (Tex. Crim. App. Nov. 26, 2014), reh’g granted (Feb. 25, 2015). The State 

therefore appeals the following cross point: the trial court erred in ruling that suppression was 

mandated based on Villareal, 2014 WL 6734178. See Tex. Crim. Proc. Code Ann. § art. 44.01(c)

(West, Westlaw through 2015 Sess.) (“the state is entitled to appeal a ruling on a question of law 

if the defendant is convicted and appeals the judgment”); see also II R.R. at 60 (where the trial 

court would have denied suppression of the blood draw before it subsequently granted 

suppression based solely on the Villareal case). In the event the Court finds the trial court did err 

in this respect, the blood-draw evidence Appellant fought to suppress would be one more factor 

contributing to the already overwhelming evidence of Appellant’s guilt. 
25

Appellant had been so intoxicated that he had lost the normal use of his mental 

faculties when Appellant drove and parked his vehicle on the tracks (id. at 107 

(State: “Do you have an opinion as to whether or not he lost [the normal use of his 

mental faculties]?”.... Flugrath: “I don’t believe a normal person would park their 

car that close to a railroad track without any type of vehicle difficulty....”). 

Though Appellant fails to specify which testimonial statements should have 

been suppressed, even absent any of his testimonial statements, in light of the 

overwhelming evidence of Appellant’s guilt, the jury’s verdict would have been 

the same. For all of the foregoing reasons, the Court should reject Appellant’s 

second point of error. 

The Evidence Was Legally Sufficient to Convict Appellant of 

Operating a Motor Vehicle in a Public Place

Summary of the Argument

In points of error three through five, Appellant claims the evidence was 

legally insufficient to show that he operated a motor vehicle in a public place 

without the normal use of his faculties. However, the overwhelming evidence –

and reasonable inferences from that evidence – easily allowed the jury to conclude 

that Appellant was guilty of Driving While Intoxicated. Because it cannot be said 
26

that no reasonable jury would have convicted Appellant based on the evidence at 

trial, the Court should affirm Appellant’s conviction. 

Legal Sufficiency Standard of Review

After the decision of the Court of Criminal Appeals in Brooks v. State, Texas 

appellate courts review legal and factual sufficiency challenges in criminal cases 

using the same legal sufficiency standard of review. Kiffe v. State, 361 S.W.3d 104, 

107 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Ervin v. State, 331 

S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)). Evidence is only 

insufficient if, when considering all the evidence in the light most favorable to the 

verdict, “no rational factfinder could have found each essential element of the 

charged offense beyond a reasonable doubt.” Id.

7

(citing Jackson v. Virginia, 443 

U.S. 307, 319 (1979)). 

When reviewing the legal sufficiency of the evidence, a reviewing court 

“considers all evidence in the record of the trial, whether it was admissible or 

inadmissible.” Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013), 

reh’g denied (Apr. 17, 2013). Courts will treat direct and circumstantial evidence 

equally. Kiffe, 361 S.W.3d at 108. “[D]irect evidence of a fact, standing alone and 

 

7 When viewing the evidence in the light most favorable to the verdict, evidence can be 

insufficient in two circumstances: when the record contains “no evidence, or merely a 

‘modicum’ of evidence, probative of an element of the offense” or when “the evidence 

conclusively establishes a reasonable doubt.” Id. The evidence may also be insufficient when the 

acts alleged do not constitute the offense charged. Id. at 108.
27

if believed by the jury, is always... sufficient to prove that fact.” Cortez v. State, 

08-02-00363-CR, 2004 WL 178587, at *3 (Tex. App.—El Paso Jan. 29, 2004, pet. 

ref’d) (citing Goodman v. State, 66 S.W.3d 283, 286 (Tex. Crim. App. 2001)). 

Furthermore, “[c]ircumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence alone can be 

sufficient to establish guilt.” Rockwell v. State, AP-76,737, 2013 WL 6529575, at 

*1 (Tex. Crim. App. Dec. 11, 2013) (not designated for publication) (citing Hooper 

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)), cert. denied, 134 S. Ct. 2724 

(2014).

Legal sufficiency review “gives full play to the responsibility of the trier of 

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. 

Each fact in isolation need not establish the guilt of the accused. Roberson v. State, 

16 S.W.3d 156, 164 (Tex. App.—Austin 2000, pet. ref’d). Reviewing courts will 

determine whether the necessary inferences are reasonable based on the “combined 

and cumulative force of the evidence when viewed in the light most favorable to 

the verdict.” Kiffe, 361 S.W.3d at 108. Appellate courts will presume that the 

factfinder “resolved any conflicting inferences in favor of the verdict” and defer to 

that resolution. Id. The reviewing courts will also defer to “the factfinder’s 

evaluation of the credibility and the weight of the evidence.” Id. The factfinder is 
28

entitled to accept some testimony and reject other testimony, in whole or in part. 

Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), abrogated on 

other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009); see also 

Roberson, 16 S.W.3d at 164 (factfinder may accept or reject any or all evidence 

presented by either party). 

Ultimately, the reviewing court is not to determine “whether it believes that 

the evidence at the trial established guilt beyond a reasonable doubt,” but whether 

“after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.” Jackson, 443 U.S. at 318-19 (emphasis in original).

Accordingly, “the verdict will be sustained if there is any evidence which, if 

believed, shows the guilt of the accused.” Brown v. State, 649 S.W.2d 160, 163 

(Tex. App.—Austin 1983, no pet.).

Argument

Appellant contends there was legally insufficient evidence to show 

Appellant operated a motor vehicle in a public place while intoxicated. Although 

Appellant breaks his argument up into three separate points of error, because the 

cumulative evidence to support each element is largely duplicative, the State will 
29

answer points of error three through five in the same section to avoid excessive 

repetition. 

Appellant points out that officers did not personally see Appellant driving on 

a public road while he was intoxicated. Brief for Appellant at 27. Notably, Tucker 

did observe him turn the vehicle off after he woke Appellant (IV R.R. at 64). 

Regardless, the fact that an officer may not have personally observed every 

element of the offense does not render the evidence legally insufficient. See 

Rockwell, 2013 WL 6529575, at *1 (“circumstantial evidence alone can be

sufficient to establish guilt”); Kirsch v. State, 357 S.W.3d 645, 650-51 (Tex. Crim. 

App. 2012) (the Court of Criminal Appeals has concluded that “a person ‘operates’ 

a vehicle when ‘the totality of the circumstances [] demonstrate that the defendant 

took action to affect the functioning of his vehicle in a manner that would enable 

the vehicle’s use”). 

In Priego v. State, the appellant testified that after she obtained two whiskey 

bottles from another person, she drove to the parking lot of C W Ford Rentals near 

a dumpster. 457 S.W.3d 565, 567 (Tex. App.—Texarkana 2015), petition for 

discretionary review refused (June 3, 2015). The appellant claimed she consumed 

one bottle while the truck was in the parking lot, threw it in the dumpster, and 

began drinking from the second bottle until she lost consciousness. Id. 
30

A manager of the rental company noticed the appellant’s truck in the 

otherwise empty parking lot. Id. When he approached and knocked on her window, 

the appellant was unresponsive. Id. When no one could wake the appellant, she 

was eventually transported to a hospital where her blood was drawn. Id. at 568. No 

field sobriety tests were administered. Id. n.3. The manager “never saw [the 

appellant] actually drive the truck, which was parked straight in the parking lot.” 

Id. at 568. 

After the appellant’s conviction, she contested the legal sufficiency of the 

evidence that she had operated her vehicle while intoxicated. Id. at 569. She 

contended that “she did not consume any alcohol before she parked her truck in the 

parking lot of C W Ford Rentals and that there is no direct or circumstantial 

evidence which would enable a reasonable fact-finder to determine otherwise.” Id. 

Among other facts, the court of appeals observed that there was no evidence 

in the record suggesting anyone else had operated the appellant’s vehicle. Id. at 

570. The appellant’s car had been parked in the lot for around an hour when the 

officer was first dispatched to the scene. Id. A partially consumed whiskey bottle 

was found on the truck’s floorboard, and the appellant smelled strongly of alcohol. 

Id. Although the gear selector was in “park,” the engine was running and the 

appellant was still wearing her seatbelt. Id. Despite the fact that there was no direct 

evidence that the appellant “became intoxicated prior to or during the time she was 
31

driving the truck, the jury could reasonably infer that she was operating her truck 

while intoxicated.” Id. Considering the evidence in the light most favorable to the 

verdict, the court of appeals found the evidence legally sufficient. Id. at 571. 

In Appellant’s case, there was extensive evidence that Appellant was highly 

intoxicated while operating his vehicle in a public place. Statement of facts, supra

(at 2-7). While in Priego there was no evidence anyone else had operated the 

appellant’s vehicle, in the instant case Appellant admitted that no one else was in 

the vehicle with him and that he was driving (IV R.R. at 92). At 11:48:33 p.m., 

Appellant stated it was “about 11:30 now,” and that he had driven from his friend’s 

house around “10:30” – around one hour earlier, just as in Priego (State’s Ex. 3-A 

at 11:48:33; see also State’s Ex. 2 at 11:29:50 (Tucker arrives at the scene)). 

Further mirroring Priego, a partially consumed liquor bottle was found in 

Appellant’s floorboard (IV R.R. at 63). Appellant’s gear selector was in “park,” the 

engine was running, and Appellant was sitting in the driver’s seat and slumped 

over the center console, sound asleep.8 Compare with Priego, 457 S.W.3d at 570.

 

8 Appellant contrasts the particular facts constituting legally sufficient evidence in other cases 

with the facts in his case. Brief for Appellant at 28 (e.g. “There is no evidence of the vehicle’s 

transmission being engaged, as in Dornbusch v. State”); but see Priego, 457 S.W.3d at 570 

(gearshift in “park”); Hearne v. State, 80 S.W.3d 677, 679 (Tex. App.—Houston [1st Dist.] 

2002, no pet.) (gearshift in “park”). In any event, Appellant conflates sufficiency with necessity 

– although a given fact may help constitute legally sufficient evidence in one case, it is not 

thereafter required to be proved in every subsequent case. Cf. Tanner, 228 S.W.3d at 858 (citing 

Ornelas v. U.S., 517 U.S. 690, 698 (1996) (warning that in the context of reasonable suspicion

determinations, courts should avoid comparing the individual facts in one case to the treatment 

of similar facts in other cases). 
32

Additionally, whereas the appellant in Priego never underwent field sobriety 

tests, video of Appellant’s various attempts and refusals to complete such tests 

were in evidence before the jury. See Statement of Facts, supra (e.g., State’s Ex. 3-

A at 11:58:50 (Appellant refused to perform one-legged stand because he could not 

balance without 200-pound weights on his shoulders)). While the appellant in 

Priego claimed that she only drank in the parking lot – and further argued there 

was nothing in evidence to the contrary – Appellant admitted to drinking at his 

friend’s house before driving to the railroad track (State’s Ex. 3-A at 11:50:55 

(when asked how much he had to drink there, Appellant replied “enough”)). 

Furthermore, in addition to his slurred speech and demeanor, jurors could watch

Appellant’s various apologies and admissions of culpability. Statement of Facts, 

supra (e.g., State’s Ex. 2 at 11:40:24 (Appellant said he’d had “[t]oo much” to 

drink); id. at 11:44:13 (“I know I messed up. I apologize.”); State’s Ex. 3-A at 

11:47:48 (“I know I’m in trouble” and “I’m the worst”)). This evidence – over and 

above that found sufficient by the Texarkana court of appeals – must also be 

considered in light of the most profound circumstance elevating Appellant’s case 

over Priego: whereas Priego parked her vehicle “straight in [a] parking lot,” 

Appellant parked his Cadillac on an active railroad track. 

The jury could reasonably infer that when Appellant drove to and parked his 

Cadillac on the active railroad track, he had lost the normal use of his mental 
33

faculties. Cf. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) 

(“Being intoxicated at the scene of a traffic accident in which the actor was a driver 

is some circumstantial evidence that the actor’s intoxication caused the accident, 

and the inference of causation is even stronger when the accident is a one-car 

collision with an inanimate object”). Parking in such circumstances could lead to 

two inferences – either the Appellant had lost the normal use of his mental 

faculties when he drove and parked there, or he was suicidal. See II R.R. at 55 

(where Appellant tried to argue during the pretrial motion to suppress that it may 

have been a suicide attempt). However, when Officer Tucker pointed out that if a 

train had come, Appellant probably would have been killed, Appellant stated “I 

didn’t want that” (State’s Ex. 2 at 11:40:20). See also State’s Ex. 3-A (“Apparently 

I made a mistake because if I was on a railroad track I apologize.”). 

Accordingly, given the totality of the evidence at trial, the jury made what 

was the only reasonable inference: that Appellant – by virtue of his intoxication –

had lost the normal use of his mental faculties when he drove and parked his 

Cadillac on the train tracks before passing out. When viewing the combined and 

cumulative force of the evidence in the light most favorable to the prosecution, it 

cannot be said that the factfinder’s inferences were not reasonable. 

Appellant also contends the evidence was legally insufficient to prove he 

operated his vehicle in a “public place;” he claims the allegedly “private” railroad 
34

easement does not qualify. Brief for Appellant at 30. However, as mentioned 

supra, the jury could reasonably infer that Appellant operated his vehicle in 

another public place: he drove on the public road from which he reached the 

railway easement. As the State observed during the hearing on the motion to 

suppress, “unless [Appellant] has some magic trick, he had to drive to that spot. So 

he was on public roadways to get there” (II R.R. at 56). 

Moreover, even if the evidence only showed Appellant had driven on the 

“private railway easement,” several of Appellant’s cited cases demonstrate this 

falls under the “public place” definition. Appellant cites Shaub v. State, observing 

that “[i]n determining whether a place is public, the relevant inquiry is whether the 

public has access to it.” Brief for Appellant at 29 (citing 99 S.W.3d 253, 256 (Tex. 

App.—Fort Worth 2003, no pet.). The public has access to several locations which 

are privately owned; this fact is readily apparent in the Penal Code’s definition of 

“public place.”

As defined in the Penal Code, a “public place” means “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) (West, Westlaw through 2015 R.S.) (emphasis added). 

The emphasized examples are privately owned, yet nevertheless classified as 
35

“public places.” Indeed, in Appellant’s cited case Shaub v. State, the “public place” 

at issue appears to have been a privately leased marina. See 99 S.W.3d at 255. 

Appellant cites several similar cases involving privately owned areas – some of 

which involved restricted access – which were nevertheless classified as “public 

places.” Appellant observes several such fact patterns on page 30 of his brief; he 

explicitly notes of one of them that:

The manager of the complex testified that the entire complex was 

surrounded by a metal fence, that the complex had between 200 and 

300 residents, and that the parking lot was a common area for the 

complex. When a resident moved into the complex, the resident 

received a “gate card” which would electronically trigger the gate. 

Brief for Appellant at 30 (citing Holloman v. State, 11-95-275-CR, 1995 WL 

17212433, at *1 (Tex. App.—Eastland Dec. 21, 1995, pet. ref’d) (not designated 

for publication) (the court found said location to be a “public place” for purposes 

of § 49.04 of the Texas Penal Code)).

Appellant nevertheless tries to distinguish his case, asserting that the record 

is “devoid of testimony that would reasonably support a finding that the private 

railway easement away from the roadway was plainly open to the public.” Id. 

Appellant’s assertion is flatly incorrect. First, State’s Exhibit 2 clearly shows 

Appellant’s vehicle located around 20 feet off the public roadway (State’s Ex. 2 at 

11:29:50). The jury could see for itself that there were no fences or other 

obstructions; Appellant had merely pulled of the road a few steps behind his 
36

vehicle. Id.

9

Second, there was explicit testimony at trial that the railroad was a 

“public place:”

State: “Is ... the railroad a public place?”

Tucker: “Yes ma’am, it is.”

(IV R.R. at 60). 

The State belabored the point a short while later:

State: “...it was your judgment call, your opinion, that this private 

Union Pacific property was a public place. .... Union Pacific 

easement was a public place?”

Tucker: “Yes.”

(id. at 70). The State actually had Officer Tucker explain that private property 

could be a public place (id. at 74-76 (Tucker: “If you can walk there without any 

barriers or no trespassing signs, it’s usually a public place” State: “So is that 

railroad track off FM 306 considered a public place?” Tucker: “Yes, ma’am, it 

is.”)). For all the foregoing reasons, the Court should find the evidence was legally 

sufficient to support the jury’s finding that Appellant operated his vehicle in a 

public place while he was intoxicated. Because it cannot be said that no rational 

 

9 Appellant’s comparison to Fowler – where the appellant was on a gated (albeit open) unpaved 

private residence’s driveway 1⁄4 mile from a country road – is therefore inapposite. Fowler v. 

State, 65 S.W.3d 116, 117 (Tex. App.—Amarillo 2001, no pet.). The only testimony in Fowler 

that the road was a “public place” was struck from the record. Id. at 119. Additionally, unlike 

Fowler, in the instant case Appellant stated on video that he had left his friend’s house around 

10:30 p.m. after drinking, and that he remembered driving over the railroad crossing. Statement 

of Facts, supra. 
37

trier of fact could have found Appellant guilty – particularly in light of the 

combined and cumulative force of the overwhelming evidence in this case – the 

Court should defer to the jury’s determination and affirm the judgment of the trial 

court. See Jackson, 443 U.S. at 318-19. 

Appellant’s Sentence Did Not Violate the Constitutional Prohibition 

on Cruel and Unusual Punishment

Summary of the Argument

Appellant argues his life sentence was grossly disproportional and 

constitutes cruel and unusual punishment. However, in light of the fact that several 

other cases – which Appellant acknowledges in his brief – have upheld such 

sentences in similar circumstances, and because Appellant presents no novel 

arguments or compelling reasons for the Court to ignore such precedents, his final 

point of error should likewise be rejected. 

Facts at Punishment

As the State showed in the punishment phase of Appellant’s trial, Appellant 

had an extensive, serious and potentially deadly problem with alcohol. Appellant’s 

sister testified on his behalf at the punishment phase (V R.R. at 50). On crossexamination, she admitted Appellant completely lacked self-discipline (id. at 54). 

She acknowledged he had a “severe” alcohol problem (id.). She recognized the 
38

severity of his problem despite the fact that she was not aware the instant case was 

his sixth DWI conviction (id.). Appellant’s sister further acknowledged that the 

State’s repeated attempts to rehabilitate her brother had failed (id. at 55). She did 

not seem to be aware of the fact that he was on parole when he picked up his fifth 

DWI (id. at 56). She did recognize that Appellant’s “supportive” family had never 

been enough to keep Appellant from re-offending (id. at 56-57). Appellant’s sister 

apparently had not been told that he was parked on a train track for his latest DWI; 

when confronted with that information, she clearly had additional reservations 

about Appellant (id. at 58). Appellant’s sister further acknowledged that Appellant 

had endangered his own life and the life of others on each of the six occasions for 

which he was convicted of driving while intoxicated (id. at 59). Ultimately, 

although she wished to help her brother, Appellant’s sister had to admit that when 

her oldest daughter turned 16, she would want her to be safe from people like 

Appellant (id. at 59-60). 

Argument

Appellant acknowledges that his final point of error – that his sentence is 

grossly disproportionate and constitutes cruel and unusual punishment – has been

rejected by the Third Court of Appeals and other courts. Brief for Appellant at 34-

35. In Davidson v. State, the Court expressly observed that a sentence of life 

imprisonment in the context of cases such as Appellant’s is not disproportionate. 
39

See 03-13-00708-CR, 2014 WL 3809813, at *1 (Tex. App.—Austin Aug. 1, 2014, 

no pet.) (not designated for publication). In Davidson, the Court observed that 

“[b]ased on [the appellant’s] repeated commission of the offense of driving while 

intoxicated, a dangerous offense that placed her life and the lives of others in 

jeopardy, we could not conclude that a sentence of life imprisonment was grossly 

disproportionate to the offense so as to constitute cruel and unusual punishment.” 

Id. The Court further noted that “[i]t is well established that a sentence of life 

imprisonment or of similar length is not grossly disproportionate to a felony 

offense that is committed by a habitual offender, even when the felony is not 

inherently violent in nature.” Id. (citing Rummel v. Estelle, 445 U.S. 263, 284-85 

(1980)); see also Pryor v. State, 03-13-00347-CR, 2015 WL 2066228, at *5 (Tex. 

App.—Austin May 1, 2015) (not designated for publication), petition for 

discretionary review filed (Aug. 6, 2015) (where the Court noted under the 

“certainty of punishment” factor of its harmless error analysis that – given that 

appellant’s history of DWI’s – the jury would have assessed the maximum 

sentence in any event).

Appellant provides no new argument to support his point of error beyond his 

bare assertion that a life sentence is grossly disproportionate. Brief for Appellant at 

35; see also supra (at 21 n.5). In light of the above, including Appellant’s repeated 

violations, his endangerment of himself and others, and caselaw Appellant 
40

acknowledges in his brief (Brief for Appellant at 34-35), any further historical 

analysis should be unnecessary. See Davidson, 2014 WL 3809813. However, in the 

event it interests the Court, the remainder of the instant brief – adapted from a 

colleague’s – will trace some of the developments in caselaw related to the Eighth 

Amendment. Otherwise, for the foregoing reasons, Appellant’s conviction should 

be, in all things, affirmed. 

Appellant’s Sentence Is Consistent With Historical Developments in Eighth 

Amendment Case Law.

United States Supreme Court Precedent

The United States Supreme Court has decided several cases determining 

whether the length of a non-capital prison sentence is properly subject to review in 

the context of the Eighth Amendment. Those cases cover both sentences that were 

assessed for a single offense as well as those assessed as part of a habitual offender 

statute. The Supreme Court itself has indicated that its decisions have been far 

from clear. While somewhat lengthy, the following summary will set out the facts 

and holdings of the Supreme Court’s cases and provide additional support for the 

determination that Appellant’s sentence does not violate the Eighth Amendment.

In Graham v. West Virginia, 224 U.S. 616 (1912), the facts reflected that, in 

1898, the defendant had been convicted of stealing a horse valued at $50. Three 

years later, in 1901, he had been convicted of entering a stable in order to steal a 
41

horse valued at $100. Finally, in 1907, the defendant was convicted of stealing a 

horse valued at $75 and various tack and accessories valued at $85. Upon 

conviction for that last crime, the defendant was sentenced to a term of life 

imprisonment as mandated by West Virginia’s recidivist statute. 

On appeal, the defendant claimed that cruel and unusual punishment had 

been inflicted upon him. In response, the United States Supreme Court noted, 

“The propriety of inflicting severer punishment upon old offenders has long been 

recognized in this country and in England. They are not punished the second time 

for the earlier offense, but the repetition of criminal conduct aggravates their guilt 

and justifies heavier penalties when they are again convicted.” Graham v. West 

Virginia, 224 U.S. 616 at 623. Without any discussion of factors such as the 

severity of the offense or the possibility of parole, the Supreme Court concluded 

that it could not be maintained that cruel and unusual punishment had been 

inflicted. Id. at 631.

In Rummel v. Estelle, 445 U.S. 263 (U.S. 1980), the defendant had been 

charged in 1964 with fraudulent use of a credit card to obtain $80 worth of goods 

or services, a felony punishable by imprisonment for not less than two nor more 

than ten years. The defendant pled guilty and was sentenced to three years’ 

confinement. In 1969, the defendant was charged with passing a forged check in 

the amount of $28.36, a felony punishable by imprisonment for not less than two 
42

nor more than five years. The defendant also pled guilty to that offense and was 

sentenced to four years’ imprisonment. Finally, in 1973, the defendant was charged 

with obtaining $120.75 by false pretenses, a felony punishable by confinement for 

not less than two nor more than ten years. However, the defendant was prosecuted 

under Texas’ repeat offender statute and his two prior convictions were alleged in 

the indictment. A jury convicted the defendant of felony theft and also found the 

allegations that he had been convicted of two prior felonies were true. As a result, 

the trial court imposed a life sentence upon the defendant as mandated by law.

On appeal, the defendant argued that a sentence of life imprisonment was “grossly 

disproportionate” to the three felonies that formed the predicate for his sentence 

and, therefore, his sentence violated the Eighth Amendment’s ban on cruel and 

unusual punishments. Eventually, the defendant’s case reached the United States 

Supreme Court on certiorari. Rummel v. Estelle, 445 U.S. 263 at 265. Addressing 

the defendant’s claim that the absence of violence in his crimes should militate 

against the imposition of such a severe sentence, the United States Supreme Court 

rejected that proposition by stating, “But the presence or absence of violence does 

not always affect the strength of society’s interest in deterring a particular crime or 

in punishing a particular criminal.” Id. at 275. The Court also found that the 

interest of the State of Texas in the case was not simply the punishment of the 

unlawful acquisition of another person’s property. The Court recognized that there 
43

was an additional interest, expressed in all recidivist statutes, in dealing more 

harshly with those who, by repeated criminal acts, have shown that they are simply 

incapable living as law-abiding citizens. Id. at 276. The Supreme Court also noted 

that Texas had a relatively liberal policy of granting “good time” credits to its 

prisoners, a policy that had historically allowed a prisoner serving a life sentence to 

become eligible for parole in as little as 12 years. In light of such policies, the 

Court recognized that a proper assessment of Texas’ treatment of the defendant 

could hardly ignore the possibility that he would not actually be imprisoned for the 

rest of his life. Id. at 280. Finally, the Court noted that, even if the sentence 

imposed on the defendant was the most severe sentence found in any of the states, 

such fact would not necessarily make the defendant’s sentence grossly 

disproportionate to his offenses. Id. at 282. The Court also clearly recognized that 

the Texas Legislature was entitled to make its own judgments on what sentences 

should be imposed for different crimes. Id. at 284. The Supreme Court then held 

that the mandatory life sentence imposed upon the defendant did not constitute 

cruel and unusual punishment under the Eighth Amendment. 

In Hutto v. Davis, 454 U.S. 370 (U.S. 1982), officers had tape-recorded a 

transaction in which the defendant had sold marijuana and other controlled 

substances to a police informant. Several days later, on October 26, 1973, law 

enforcement officers raided the defendant’s home and seized approximately nine 
44

ounces of marijuana and assorted drug paraphernalia. The defendant was 

convicted in a Virginia state court for possession with intent to distribute and 

distribution of marijuana. The jury imposed a prison term of 20 years and a fine of 

$10,000 on each of the two counts and the prison terms were ordered to run 

consecutively. Id. at 370-371.

The defendant filed a writ of habeas corpus asserting that a 40-year sentence 

was so grossly disproportionate to the crime of possessing less than nine ounces of 

marijuana that it constituted cruel and unusual punishment as proscribed by the 

Eighth Amendment. The District Court relied primarily upon the four factors set 

forth in Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973) to analyze the defendant’s 

claim. Hutto v. Davis, 454 U.S. 370 at 371. Applying the first Hart factor to the 

case, the District Court found “no element of violence and minimal, debatable 

danger to the person.” On Hart's second factor, which called for an examination of 

the purposes behind the criminal statute and the existence of less restrictive means 

of effectuating those purposes, the District Court was inconclusive, but noted that 

the amount of marijuana involved was less than nine ounces, implying that such 

minimal possession could adequately be deterred with shorter prison sentences. 

Applying the third Hart factor, the District Court found that defendant’s sentence 

for possession with intent to distribute exceeded the maximum penalty available 

for that offense in all but four States, and that his sentence for distribution 
45

exceeded the maximum penalty available for that offense in all but eight States. 

Finally, under the fourth Hart factor, the District Court concluded that the 

defendant’s sentence was disproportionate when compared to punishments 

applicable to other offenses under Virginia law. Id. at 373. Based on that analysis, 

the District Court granted the defendant’s writ. Id. at 371. The District Court’s 

decision was subsequently upheld by the United States Court of Appeals for the 

Fourth Circuit. Id. at 372.

The United States Supreme Court granted certiorari and addressed the 

application of the Hart factors by the lower courts. See Hutto v. Davis, 454 U.S. 

370 (U.S. 1982). The Court specifically found that it had rejected each of the Hart

factors in its opinion in Rummel. Addressing the application of the first Hart

factor, the Supreme Court noted that, in Rummel, it had held that the presence or 

absence of violence did not always affect the strength of society’s interest in 

deterring a particular crime or in punishing a particular criminal. The Court then 

found that the application of the second Hart factor had been implicitly rejected in 

Rummel by its conclusion that the amount of money taken was not relevant, 

because to have acknowledged that the State could have given the defendant a life 

sentence for stealing some amount of money would have conceded that the lines to 

be drawn were subjective and therefore properly determined by legislatures instead 

of the courts. Addressing application of the third Hart factor, the Court noted that 
46

it had rejected such comparisons in Rummel when it found that, absent a 

constitutionally imposed uniformity contrary to traditional notions of federalism, 

some State would always bear the distinction of treating particular offenders more 

severely than any other State. Finally, the Court found that it had rejected the 

application of the fourth Hart factor in Rummel because other crimes implicated 

other societal interests, making such a comparison inherently speculative. Id. at 

373. After specifically disavowing the application of each of the Hart factors, the 

Supreme Court stated, “Rummel stands for the proposition that federal courts 

should be ‘[reluctant] to review legislatively mandated terms of imprisonment,’ 

and that ‘successful challenges to the proportionality of particular sentences’ 

should be ‘exceedingly rare.’” The Court also stated, “By affirming the District 

Court decision after our decision in Rummel, the Court of Appeals sanctioned an 

intrusion into the basic linedrawing process that is ‘properly within the province of 

legislatures, not courts.’” In reversing the Fourth Circuit Court of Appeals, the 

Supreme Court concluded with a stern warning that lower federal courts were 

required to follow its precedent no matter how misguided the judges of those 

courts thought it to be. Id. at 374. 

In Solem v. Helm, 463 U.S. 277 (U.S. 1983), the facts reflected that in 1964, 

1966 and 1969, the defendant had been convicted of third-degree burglary. In 

1972, he was convicted of obtaining money under false pretenses. In 1973, the 
47

defendant was convicted of grand larceny. And, in 1975, he was convicted of 

third-offense driving while intoxicated. Thus, by 1975, the State of South Dakota 

had convicted the defendant of six nonviolent felonies. Then, in 1979, the 

defendant was charged with uttering a “no account” check for $100. The 

defendant pled guilty and was sentenced to a term of life imprisonment under the 

South Dakota repeat offender statute. Under South Dakota’s laws, a person 

sentenced to life imprisonment was not eligible for parole. Id. at 279-282. 

The defendant subsequently filed for a writ of habeas corpus arguing that his 

sentence constituted cruel and unusual punishment under the Eighth Amendment

and his case reached the United States Supreme Court on certiorari. Solem v. Helm, 

463 U.S. 277 at 283-284. Addressing the defendant’s claim, the Supreme Court 

held that, as a matter of principle, a criminal sentence must be proportionate to the 

crime for which the defendant had been convicted. The Court recognized that 

reviewing courts should grant substantial deference to the broad authority that 

legislatures necessarily possess in determining the types and limits of punishments 

for crimes, as well as to the discretion that trial courts possess in sentencing 

convicted criminals. The Supreme Court also specifically indicated that it was not 

adopting or implying approval of a general rule of appellate review of sentences. 

The Court stated, “Absent specific authority, it is not the role of an appellate court 

to substitute its judgment for that of the sentencing court as to the appropriateness 
48

of a particular sentence; rather, in applying the Eighth Amendment the appellate 

court decides only whether the sentence under review is within constitutional 

limits.” The Court added, “In view of the substantial deference that must be 

accorded legislatures and sentencing courts, a reviewing court rarely will be

required to engage in extended analysis to determine that a sentence is not 

constitutionally disproportionate.” Id. at 291.

However, the Supreme Court then stated, “When sentences are reviewed 

under the Eighth Amendment, courts should be guided by objective factors that our 

cases have recognized.” Then, the Court instructed that courts should look to the 

gravity of the offense and the harshness of the penalty. Addressing that factor, the 

Court specifically found that nonviolent crimes were less serious than crimes 

marked by violence or the threat of violence. As a second factor, the Court 

indicated that it might be helpful to compare the sentences imposed on other 

criminals in the same jurisdiction. The Court noted that it would be some 

indication that the punishment at issue might be excessive if more serious crimes 

were subject to the same or lesser penalties. Finally, the Court indicated that 

courts might find it useful to compare the sentences imposed for commission of the 

same crime in other jurisdictions. The Court summarized its holding by stating, “In 

sum, a court’s proportionality analysis under the Eighth Amendment should be 

guided by objective criteria, including (i) the gravity of the offense and the 
49

harshness of the penalty; (ii) the sentences imposed on other criminals in the same 

jurisdiction; and (iii) the sentences imposed for commission of the same crime in 

other jurisdictions.” Solem v. Helm, 463 U.S. 277 at 291-292. 

Applying the factors it had set out, the Supreme Court referred to the 

defendant’s crime as “one of the most passive felonies a person could commit.” 

The Court also found that the defendant’s prior offenses, although classified as 

felonies, were all relatively minor, all were nonviolent, and none was a crime 

against a person. Solem v. Helm, 463 U.S. 277 at 296. After reviewing all of the 

factors, the Supreme Court concluded that the defendant’s sentence was 

significantly disproportionate to his crime, and was therefore prohibited by the 

Eighth Amendment. Id. at 303. 

It is notable that the three factors endorsed in by the Supreme Court in Solem

are the first, third and fourth factors of Hart test that the Court had so vehemently 

disavowed in Hutto v. Davis as being contrary to the precedent established in 

Rummel. Indeed, the Supreme Court chastised the Fourth Circuit’s application of 

those factors after its decision in Rummel by stating that the Fourth Circuit could 

be viewed as having ignored, consciously or unconsciously, the hierarchy of the 

federal court system created by the constitution and Congress. Then, less than a 

year later, the Court seems to have done the same thing that led to the Fourth 

Circuit’s reprimand. However, despite the obvious inconsistency in its opinions, 
50

the Court did not overrule Hutto v. Davis and specifically refused to overrule 

Rummel. Solem v. Helm, 463 U.S. 277 at 303. 

In Harmelin v. Michigan, 501 U.S. 957 (U.S. 1991), the defendant was 

convicted of possessing 672 grams of cocaine and sentenced to a mandatory term 

of life in prison without possibility of parole. The defendant appealed, claiming 

that his sentence constituted cruel and unusual punishment in violation of the 

Eighth Amendment. His case eventually reached the United States Supreme Court 

on certiorari. Id. at 961.

Addressing the defendant’s claim, the United States Supreme Court issued 

numerous opinions. In an opinion joined by the Chief Justice, Justice Scalia found 

that the defendant’s sentence could not be considered unconstitutionally 

disproportional because the Eighth Amendment contained no proportionality 

guarantee. Justice Scalia also determined that Solem was wrongly decided and 

completely rejected its analysis. Harmelin v. Michigan, 501 U.S. 957 at 962-994. 

Justice Kennedy was joined by Justices O’Connor and Souter in his opinion. 

Contrary to Justice Scalia’s opinion, Justice Kennedy found that the Eighth 

Amendment does forbid sentences that are “grossly disproportionate.” Id. at 997. 

However, he specifically wrote, “The Eighth Amendment does not require strict 

proportionality between crime and sentence. Rather, it forbids only extreme 

sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1001. Justice 
51

Kennedy specifically held that the second and third factors from Solem, the 

sentences imposed on other criminals in the same jurisdiction and the sentences 

imposed for commission of the same crime in other jurisdictions, should only be 

considered in the rare case when a threshold comparison of the crime committed 

and the sentence imposed led to an inference that the sentence was grossly 

disproportionate. He then weighed the defendant’s crime of possession of over 

650 grams of cocaine against his punishment of life in prison without parole and 

concluded that the defendant’s sentence was not grossly disproportionate to the 

underlying crime. Consequently, Justice Kennedy found it unnecessary to proceed 

to the additional steps of the Solem analysis. Id. at 1005. Finally, the four 

remaining justices in Harmelin dissented and issued three separate opinions. 

However, all of the dissenting justices did agree with Justice White, who argued 

for the continued application of the full three-pronged Solem test. Id. at 1008-1009.

In Ewing v. California, 538 U.S. 11 (2003), one of the more recent Supreme 

Court cases addressing proportionality in non-capital sentencing, the Court held the 

California three strikes law was constitutional and concluded that a sentence of 

twenty-five years to life for felony grand theft did not violate the Eighth 

Amendment. In deciding the case, the Supreme Court employed the threshold 

analysis provided by Justice Kennedy in Harmelin to decide that the sentence was 

not grossly disproportionate to the crime. Id. at 23-24. The Court considered the 
52

specific circumstances of the case, including the defendant’s criminal history, the 

discretion allotted to the sentencing judge and the prosecutor in deciding how to 

charge the defendant under the statute, and the state’s interest in protecting its 

citizens from repeat offenders. Based on those factors, the Court decided in its 

initial inquiry that the sentence imposed was not grossly disproportionate to the 

offense committed. And, because the Court did not find the sentence was grossly 

disproportionate after its initial inquiry, the Court found it unnecessary to conduct 

the inter-and intra-jurisdictional analyses from Solem. Id. at 25-31.

Fifth Circuit Precedent

In McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992), the defendant, in 

1954, was found guilty of two counts of armed robbery and sentenced to serve two 

to nine years. In 1957, he was found guilty of burglary and larceny and sentenced 

to serve from one to ten years, running concurrently with his earlier sentence. The 

defendant was also sentenced in 1957, to another concurrent term of four to eight 

years for escape from a penitentiary. In 1964, he was found guilty of armed 

robbery and given three to ten years. Finally, in 1983, the defendant was convicted 

by a jury in Harrison County, Mississippi, for the burglary of an automobile, 

specifically for stealing twenty cases of beer from a delivery truck. The defendant 

had been indicted as a habitual offender under the Mississippi Code. After a 
53

sentencing hearing where the defendant’s record of prior felony convictions was 

established, he was sentenced, as a habitual offender, to life in prison without 

parole. Id. at 314.

On appeal, the defendant alleged that his sentence was unconstitutionally 

disproportionate. McGruder v. Puckett, 954 F.2d 313 at 315. Addressing that 

argument, the Fifth Circuit noted the framework of objective factors adopted by the 

Supreme Court in Solem. However, the Court also noted that Solem must be 

viewed in the light of the Supreme Court’s decision in Harmelin v. Michigan. By 

applying a head-count analysis, the Fifth Circuit found that seven members of the 

Supreme Court supported a continued Eighth Amendment guaranty against 

disproportional sentences. However, the Court recognized that only four justices 

supported the continued application of all three factors in Solem while five justices 

rejected the continued application of all five factors. The Court then stated, “Thus, 

this much is clear: disproportionality survives; Solem does not.” Relying upon 

Justice Kennedy’s opinion for guidance, the Court stated that it would initially 

make a threshold comparison of the gravity of the defendant’s offenses against the 

severity of his sentence. Then, only if the Court inferred that the defendant’s 

sentence was grossly disproportionate to the offense would it then consider the

remaining factors of the Solem test and compare the sentence received to (1) 
54

sentences for similar crimes in the same jurisdiction and (2) sentences for the same 

crime in other jurisdictions. Id. at 316.

In making the threshold comparison of the gravity of the defendant’s 

offenses against the severity of his sentence, the Court noted that the defendant had 

been sentenced as a habitual offender. The Court recognized that, because he was 

sentenced as a habitual offender, the defendant’s sentence was imposed to reflect 

the seriousness not only of his most recent offense but also the seriousness of his 

prior offenses. McGruder v. Puckett, 954 F.2d 313 at 316. In comparing the 

gravity of the defendant’s offenses in relation to the harshness of his sentence, the 

Fifth Circuit then referred to the Supreme Court’s decision in Rummel as a “handy 

guide” to assist in the determination. After comparing the offenses and criminal 

records of the defendants in each case, the Court found that, in the light of 

Rummel, there could be no argument that the defendant’s sentence was not 

disproportionate, much less grossly disproportionate, to his offense. Because the 

Court did not find that the defendant’s sentence was grossly disproportionate to the 

offense, it did not consider the remaining factors of the Solem test. Id. at 317.

Texas Precedent

Texas appellate court have followed and applied the Fifth Circuit’s 

McGruder analysis in addressing Eighth Amendment proportionality complaints. 

Under that analysis, Texas courts have initially made a threshold comparison of the 
55

gravity of the offense against the severity of the sentence. If a court has 

determined during that threshold comparison that the sentence is not grossly 

disproportionate to the offense, they have uniformly refused to consider the 

remaining Solem factors. See Jacobs v. State, 80 S.W.3d 631 (Tex.App.—Tyler 

2002; no pet.).10

In addition, in Whitehead v. State, 11-05-00179-CR, 2006 WL 3685230, at 

*1 (Tex. App.—Eastland Dec. 14, 2006), review dismissed, PD-234-07, 2008 WL 

1930673 (Tex. Crim. App. Apr. 30, 2008), one Texas appellate court addressed the 

appeal of a habitual offender who was sentenced to life in prison for failure to 

appear. In that case, a jury found the defendant guilty of the offense of bail 

jumping and failure to appear. Also finding that the defendant had been finally 

convicted of two prior felony offenses as alleged in the indictment, the jury 

assessed his punishment at life imprisonment. On appeal, the defendant argued 

that his life sentence violated the Eighth Amendment of the United States 

Constitution. Addressing that argument, the Eastland Court found that a life 

sentence imposed under Texas habitual offender statutes does not constitute cruel 

 

10 See also Moore v. State, 54 S.W.3d 529, 542 (Tex.App.—Fort Worth 2001, pet. ref’d);

Bradfield v. State, 42 S.W.3d 350, 353 (Tex.App.—Eastland 2001, pet. ref'd); Hicks v. State, 15 

S.W.3d 626, 632 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd); Dunn v. State, 997 S.W.2d 

885, 891-92 (Tex. App.—Waco 1999, pet. ref'd); Jackson v. State, 989 S.W.2d 842, 845 (Tex. 

App.—Texarkana 1999, no pet.); Mathews v. State, 918 S.W.2d 666, 669 (Tex.App.—Beaumont 

1996, pet. ref'd); Puga v. State, 916 S.W.2d 547, 549-50 (Tex.App.—San Antonio 1996, no 

pet.); Lackey v. State, 881 S.W.2d 418, 421 (Tex.App.—Dallas 1994, pet. ref'd). 
56

and unusual punishment in violation of the Eighth Amendment. The Court noted 

that the defendant was relying primarily on the case of Solem v. Helm. However, 

the Court found that Solem was distinguishable because the defendant in Solem

was sentenced to life with no possibility of parole, whereas the defendant was 

eligible for parole. The Court then held that the defendant’s life sentence for 

failure to appear did not violate the Eighth Amendment. See id.

Another court of appeals has specifically found that Solem is no longer 

controlling law. See Trevino v. State, 07-04-0066-CR, 2005 WL 1404037, at *5 

(Tex. App.—Amarillo June 15, 2005, pet. ref'd) (not designated for publication). 

Instead of applying the three Solem factors, the court has used the Fifth Circuit’s 

McGruder analysis and, after determining that a sentence is not grossly 

disproportionate to the offense, has refused to consider the remaining Solem

factors. 

 As set out above, using Rummel as a “handy guide” as suggested by the Fifth 

Circuit in McGruder, it is evident that, contrary to Appellant’s assertions, his 

sentence is not unconstitutionally disproportionate. Appellant’s status as a habitual 

offender (I Supp. C.R. at 4) means that his sentence is imposed to reflect the 

seriousness not only of his most recent offense, but also the seriousness of his prior 

offenses. In light of the catastrophic harm and loss of life Appellant could have 

caused multiple times – to himself and to others – it cannot be said that the 
57

defendant’s sentence was disproportionate, much less grossly disproportionate, to 

his offense. Therefore, evaluation under the second and third Solem factors is 

unnecessary and Appellant’s point of error should be denied, particularly in light of 

recent similar cases recognizing such sentences do not constitute cruel and unusual 

punishment. See Davidson, 2014 WL 3809813, at *1. 
58

Prayer

Wherefore, premises considered, Appellee respectfully prays that this 

Honorable Court of Appeals affirm in all matters the judgment of the trial court in 

this case. Alternatively, if the Court does not affirm the judgment of the trial court, 

Appellee prays that the Court find the trial court erred in suppressing the evidence 

from the warrantless blood draw based on Villareal. Appellee also prays for all 

other relief, both special and general, in law and in equity, to which it may be 

entitled. 

JENNIFER THARP

Criminal District Attorney

 By 

/s/ Joshua D. Presley

Joshua D. Presley

SBN: 24088254

Assistant District Attorney

150 N. Seguin Avenue, Ste. #307

New Braunfels, Texas 78130

Phone: (830) 221-1300

Fax: (830) 608-2008

E-mail: preslj@co.comal.tx.us

Attorney for the State
59

Certificate of Service

I, Joshua D. Presley, Assistant District Attorney for the State of Texas, 

Appellee, hereby certify that a true and correct copy of this Brief for the State has 

been delivered to Appellant DAVID KENT THACKER, JR.’s attorney of record in 

this matter:

Gerald C. Moton

motongerald32@gmail.com

11765 West Avenue, PMB 248

Austin, TX 78216

Attorney for Appellant on Appeal

By electronically sending it through efile.txcourts.gov to the above-listed email 

address, this the 8

th day of September, 2015.

/s/ Joshua D. Presley

Joshua D. Presley

Certificate of Compliance

I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas 

Rules of Appellate Procedure that the instant brief is computer-generated using 

Microsoft Word and said computer program has identified that there are 13,308

words or less within the portions of this brief required to be counted by Rule 

9.4(i)(1) & (2) of the Texas Rules of Appellate Procedure. 

The document was prepared in proportionally-spaced typeface using Times 

New Roman 14 for text and Times New Roman 12 for footnotes. 

/s/ Joshua D. Presley

Joshua D. Presley
60

Appendix
THE STATE OF TEXAS 

vs. 

DAVID KENT THACKER, JR. 

• . 

. 

NO. CR20 13-096 

§ IN THE DISTRICT COURT OF 

§ 

§ COMAL COUNTY, TEXAS 

§ 

§ 

TO THE HONORABLE JUDGE OF SAID COURT: 

NOW COMES DAVID KENT THACKER, JR., the Defendant in the above cause, and files 

this motion to reconsider it denial of Defendant's Motion to Suppress Blood Draw in view of Antonio 

Aviles v. The State of Texas, No. 04-11-00877-CR decided August 6, 2014. 

1. In the original submission of Antonio Aviles v. The State of Texas, No. 04-11-00877-CR 

the Fourth Court of Appeals held the trial court did not err in denying appellant Antonio Aviles's motion to 

suppress the blood specimen drawn pursuant to section 724.012(b){3)(B) of the Texas Transportation Code. 

Aviles ''· State. 385 S.WJd 110. 116 (Tex. App.-San Antonio 2012). vacated. 134 S.Ct. 902 (2014). 

Relying upon Beeman'~ State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002), we held section 724.012(b)(3) 

(B) permits a police officer to take a blood specimen from DWI suspect without a warrant if the officer has 

credible information that the suspect has been previously convicted on at least two prior occasions ofDWI. 

/d. 

Aviles sought review in the Texas Court of Criminal Appeals, but that court refused his petition. 

Thereafter, Aviles filed a petition for writ of certiorari in the United States Supreme Court. The 

Supreme Court granted the petition. vacated our judgment, and remanded the matter to us for further 

consideration in light of the Court's opinion in Missouri v . .~.\1cNee/y, 133 S.Ct. 1552 (2013). Aviles v. 

Texas, 134 S.Ct. 902, 902 (2014). After reviewing the denial of the motion to suppress in light of 

McNeely, in a published opinion the Fourth Court of Appeals reverse the trial court's judgment and 

~5~JN~& ~~ Mlfue trial court for a new trial. 

~if.~ 

co .. 

@ HEAlliER N. KELLAR 

COMAL COUNTY 

DISTRr CLER~ , 

PAGE oFf!._ I 

~-
2. A copy of the published opinion in Antonio AVILES, v. The STATE of Texas, No. 04-11-

00877-CR decided August 6, 2014 is affixed hereto and made apart hereof. 

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this 

Honorable Court will grant this motion to reconsider it denial of Defendant's Motion to Suppress in all 

things, or in the alternative, that this Court will set this matter down for a hearing prior to trial on the 

merits and that at such hearing this Motion will be in all things granted. 

CERTIFIED TO BE A TRUE AND 

CORRECT ,C9PY 

~'if.~ 

0 HEATHER N. KELLAR 

COMAL COUNTY OISTR~CLERK~ 

PAGE~ OF~ 

Respectfully submitted, 

Gerald C. Moton 

11765 West Avenue, PMB 248 

San Antonio. TX 78216 

Tel: (210) 410-8153 ' 

Fax: (21 0) 568-4389 

TXBN 145963 0 . /' / 
CERTIFICATE OF SERVICE 

~ 

\;jjfJJ 

I hereby certify that a copy of the above and foregoing document was 

was delivered to the District Attorney's Office, at the Comal County Courthouse Annex, 150 Seguin. 

New Braunfels, Texas 78130, on Thursday, August 14, 2014 by h~elivery. / 

/ 

BY: ____ ._7---~~-r--------- GERAL0 C. MOTO 

STATE IfAR N0/4'596350 

ORDER 

On~ , 2014, came on to be beard Defendant's motion to reconsider it denial of 

Defendants Motion to Suppress, and after hearing same, the Court orders that the Motion to Suppress 

Blood Draw is hereby granted for the reasons set forth in as indicated in Antonio 4uiles v. The State of 

p .J) • 0 '?;0 (.. -I~ 

Texas, No. 94 II 99877=€R decided Angust 6:-20 14. 4. 

V ·..l>/1-lt!~ 1/.HA.nQUJ.... 1 nU""'-IL<A ~ 

Ju e residing 

~ 

CERTIFIED TO BE A TRUE AND 

CORRECT 1C9PY 

~off.~ 

e HEATHER N. KELLAR 

COMAL COUNTY DISTR~ ClERK "';) 

PAGE...2.__oF_z_