Longoria v. State

• Decision Date: 02 December 1981
• Docket Number: No. 2,No. 67040,67040,2
• Parties: David Wayne LONGORIA, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 582

624 S.W.2d 582

David Wayne LONGORIA, Appellant, v. The STATE of Texas, Appellee.

No. 67040.

Court of Criminal Appeals of Texas, Panel No. 2.

Dec. 2, 1981.

J. Patrick Wiseman, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Ray Elvin Speece and Susan Crump, Asst. Dist.

Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

DALLY, Judge.

This is an appeal from an order revoking probation.

On October 24, 1978, the appellant pled guilty to the offense of sexual abuse of a child; punishment was assessed at imprisonment for five years, probated. One of the conditions of probation was that the appellant commit no offense against the laws of this state.

On December 26, 1979, the State filed a motion to revoke probation alleging that the appellant had possessed a usable quantity of marihuana under two ounces and had knowingly engaged in an act of deviate sexual intercourse with another man in a public place. Thereafter, the trial court revoked the appellant's probation, his punishment was reduced and he was sentenced to imprisonment for four years.

The appellant makes several contentions that the trial court abused its discretion in revoking his probation. The first contention is that the State introduced insufficient evidence in support of its motion that the appellant intentionally or knowingly committed the act of deviate sexual intercourse. The appellant says that because he was asleep at the time he was arrested there is no evidence that he was intentionally or knowingly involved in any crime.

V.T.C.A. Penal Code, Sec. 21.07(a)(2), provides that:

"(a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his act:

"(1) ....

"(2) an act of deviate sexual intercourse."

In the early morning hours of November 30, 1979, Officer M. S. Garrett of the Houston Police Department, on routine patrol in a public park in Houston, saw a car parked ten to twenty feet off the main paved road that runs through the park. After observing two heads in the front seat of the car, he approached the car and saw the appellant lying directly behind another man; both men were asleep and nude from the waist down. Officer Garrett called for assistance and Officer Michael Akervik of the Houston Police Department responded. Both officers then approached the car; Officer Garrett testified that he observed the appellant's penis in the other man's anus and upon awakening the men he observed feces on the appellant's left index finger, the back of his hand, and completely coating his penis. Officer Akervik additionally added that while asleep, the appellant had his arms around the other man. We find that although both men were apparently asleep when they were found by police officers, the evidence circumstantially supports a finding that the appellant knowingly engaged in the act of deviate sexual intercourse. See Wood v. State, 577 S.W.2d 477 (Tex.Cr.App.1978); Dillon v. State, 574 S.W.2d 92 (Tex.Cr.App.1978).

The appellant also contends that his probation cannot be revoked under V.T.C.A. Penal Code, Sec. 21.07(a)(3), since a car is not within the statutory definition of "public place." V.T.C.A. Penal Code, Sec. 1.07(a)(29), defines "public place" as "any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops."

In Kirtley v. State, 585 S.W.2d 724 (Tex.Cr.App.1979), this Court said that whether a car is a public place is a question of fact for the fact finder and generally depends on the surrounding circumstances adduced by the State showing the public nature of the car; the Court found that the defendant's car, which was traveling down a public road, was not a public place since there was no showing that the car was accessible to the public or a substantial group of the public. We hold that the evidence adduced by the State in this case is sufficient to support a finding that the car containing the appellant and the other man, which was parked in a public park ten to twenty feet off the main park road with its interior in open view, was readily accessible to the public or a substantial group of the public and therefore is a public place under Penal Code, Sec. 1.07(a)(29), supra. See and compare Kirtley v. State, supra; Resnick v. State, 574 S.W.2d 558 (Tex.Cr.App.1978); Green v. State, 566 S.W.2d 578 (Tex.Cr.App.1978); Bishoff v. State, 531 S.W.2d 346 (Tex.Cr.App.1976).

The appellant next contends that the allegations in the State's motion to revoke his probation were insufficient to put him on notice of what type of deviate sexual intercourse the State would rely on to prove its accusation. The record reflects that both sides announced ready and the appellant entered a plea of not true. Thereafter, the appellant orally urged that the second count of the motion be dismissed because "deviate sexual intercourse (was) not specific enough to inform the probationer of the allegations against him." The oral motion, which was made after the proceedings in the revocation hearing had commenced, was not timely asserted and the court did not abuse its discretion in failing to grant the motion. See Tone v. State, 505 S.W.2d 300 (Tex.Cr.App.1973); Dempsey v. State, 496 S.W.2d 49 (Tex.Cr.App.1973). We do not reach the appellant's challenges with regard to the other alleged probation violation.

The trial court did not abuse its discretion in revoking probation. The judgment is affirmed.

CLINTON, Judge, dissenting.

The factual question of whether appellant and his companion were in a public place is a close one. In my judgment finding the answer becomes even more difficult when two specified factual items not particularized in the opinion of the Court are considered: Park Police Officer Garrett spotted the car at 5:40 a. m. dark, and not until he manuevered his patrol unit in such a way that its headlights were shining "up there" was he able to see two heads in the car. ¹ It is also true that in the entire fifteen hundred acres of the park which Garrett was patrolling that morning this car was the only one parked in it.

Unlike the information in Kirtley v. State, 585 S.W.2d 724 (Tex.Cr.App.1979), expressly describing the public place as "an automobile on Lake June Road...," id., at 725, the motion to revoke probation in the case at bar says merely that appellant engaged in the alleged conduct "in a public place." The questions put to Garrett and his answers seem more directed to showing that the area in the park is a public place. ² However, now in its appellate brief the State urges and the Court...