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Cunningham v. State12/8/2004
56) (upholding citizen's arrest of defendant where citizen observed defendant drive at a high rate of speed, strike the esplanade three times, and run red lights); Ruiz v. State, 907 S.W.2d 600 (Tex. App.-Corpus Christi 1995, no pet.) (finding breach of the peace for DWI where defendant was driving on wrong side of the highway). In addition, being intoxicated in a public place has been held to be a breach of the peace. State v. Nailor, 949 S.W.2d 357, 358 (Tex. App.-San Antonio 1997, no pet.), (citing Romo, 577 S.W.2d at 253). "Public place" is defined in the Penal Code as "any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets and highways, and the common areas of schools, apartment houses, office buildings, transport facilities, and shops." Tex. Pen. Code Ann. § 1.07(a)(40) (Vernon 2003) (emphasis added).
Cunningham argues that the conduct described by Hernandez amounted to no more than traffic violations and therefore did not justify a citizen's arrest. We disagree. The trial court heard testimony that Cunningham nearly hit Hernandez's vehicle, forced Hernandez off the road, and then proceeded to weave in his lane. Based on this testimony, the trial court could properly determine that these actions constituted a breach of the peace and posed a continuing threat to the safety of the community. See Romo, 577 S.W.2d at 253. Additionally, upon being approached after stopping his vehicle at a drive-through, Cunningham exhibited further symptoms of intoxication and admitted he had consumed several beers. We hold that Cunningham committed a breach of the peace and a citizen's arrest was authorized in this instance. Therefore, all evidence was obtained pursuant to a lawful arrest. The trial court did not err by denying Cunningham's motions to suppress the evidence. Cunningham's third issue is overruled.
Requested Jury Instructions
In his second issue and fourth issues, Cunningham argues his testimony created a factual dispute underlying the basis for his detention and arrest, and that he was therefore entitled to his proposed jury instructions under Article 38.23 of the Code of Criminal Procedure. Tex. Code Crim. Pro. Ann. art. 38.23 (Vernon Supp. 2004). Cunningham asserts he was harmed by the trial court's failure to include his requested jury instructions because he was unable to reference them in his closing arguments.
Article 38.23 of the Texas Code of Criminal Procedure provides that evidence obtained in violation of the law shall not be admitted against the defendant in a criminal case. Id. It further provides that where the evidence raises an issue under this provision, the jury shall be instructed to disregard such evidence if the jury believes the evidence was obtained in violation of the law. Id. In his first requested jury instruction, Cunningham sought to have the jury instructed that a private person, including a private security guard, does not have authority under Texas law to conduct a temporary detention for investigative purposes. Cunningham's requested instruction asked the jury to determine whether he had been detained by Hernandez. We hold the trial court properly refused this instruction because Cunningham was entitled to an instruction only if the evidence raised a fact issue concerning whether evidence was obtained in violation of the law. See Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L. E. 2d 46 (1997). The facts in this case established that Hernandez effected a citizen's arrest of Cunningham and not a temporary detention for investigative purposes. Cunningham's second issue is overruled.
In his fourth issue, Cunningham asse
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