Can Police Arrest Someone for Leaning Against a Car ?

A person commits the offense of public intoxication if he appears in a public place while intoxicated to the degree that he may endanger himself or another. See TEX. PEN. CODE ANN. 49.02 (Vernon Supp. 2000); see also Dickey v. State, 552 S.W.2d 467, 468 (Tex. Crim. App. 1977); Segura v. State, 826 S.W.2d 178, 184 (Tex. App.-Dallas 1992, pet. ref'd). In Commander v. State, 748 S.W.2d 270, 271 (Tex. App.-Houston [14th Dist.] 1988, no pet.), a police officer observed the defendant sit in the passenger seat of an unfamiliar pickup, get out, and lean against the back of the vehicle. Fearing a burglary in progress, the officer approached the defendant, briefly questioned him, and arrested him for public intoxication based upon observing several signs of intoxication. While the officer observed certain tell-tale signs of intoxication, no evidence suggested or intimated any real possibility of danger to the defendant or to the public. A public place is 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. See TEX. PEN. CODE ANN. 1.07(a)(40) (Vernon 1994). This definition is open ended, and, as several decisions 2 have noted, the definition leaves discretion to the courts to expand its parameters where appropriate. Clearly, however, " 'if the public has any access to the place in question, it is public.' " See Woodruff v. State, 899 S.W.2d 443, 445 (Tex. App.-Austin 1995, pet. ref'd) (quoting 6 MICHAEL B. CHARLTON, TEXAS CRIMINAL LAW 1.6 (Texas Practice 1994)). The focus of our attention in considering whether the State's evidence was sufficient to prove the element, "public place," should be "whether the place is one to which the public has access." See State v. Nailor, 949 S.W.2d 357, 359 (Tex. App.-San Antonio 1997, no pet.). The term "access," while not defined in the penal code in relation to the crime of public intoxication, is commonly defined as: "freedom of approach or communication; or the means, power, or opportunity of approaching, communicating, or passing to and from." See BLACK'S LAW DICTIONARY 13 (6th ed. 1990).