Cossin, Jackie Denise v. State

Affirmed and Memorandum Opinion filed April 6, 2004 Affirmed and Memorandum Opinion filed April 6, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00476-CR ____________ JACKIE DENISE COSSIN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 39,863 M E M O R A N D U M   O P I N I O N The jury found appellant guilty of driving while intoxicated and the trial court assessed punishment at five years= confinement, probated for five years. In a single issue, appellant contends the evidence was legally insufficient to establish that she was operating a motor vehicle in a public place. We affirm. FACTUAL BACKGROUND On August 6, 2000, appellant was involved in a minor automobile accident in the parking lot of a convenience store. A responding police officer determined that appellant was intoxicated and placed her under arrest. ANALYSIS In her sole issue, appellant contends the evidence was legally insufficient to establish that the convenience store parking lot was a public place for the purpose of the statute prohibiting driving while intoxicated. When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). We do not re-evaluate the weight and credibility of the evidence, but consider only whether the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). The statute prohibiting driving while intoxicated provides that A[a] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.@ Tex. Penal Code ' 49.04(a). A Apublic place@ is defined as Aany place to which the public or a substantial group of the public has access and includes, but is not limited to, streets [and] highways.@ Id. ' 1.07(a)(40). In determining whether a place is public, the relevant inquiry is whether the public has access to it. Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.CFort Worth 2003, no pet.); Loera v. State, 14 S.W.3d 464, 467 (Tex. App.CDallas 2000, no pet.). Based on the evidence presented, the jury could have rationally concluded that the public had access to the convenience store parking lot. The police officer testified that the parking lot was accessible to the public.[1] A witness testified that he accessed the parking lot from a public road. The store itself, the EZ Food Store, which everyone agrees is a Aconvenience store,@ clearly was open and easily accessible to the publicCotherwise it would not be very convenient. In fact, we do not think it was too farfetched to say that, by their very nature, convenience stores and their parking lots qualify as places to which the public has access. See Merriam-Webster=s Collegiate Dictionary 252 (10th ed. 2002) (defining Aconvenience store@ as Aa small often franchised market that is open long hours@). Twenty years ago one court in this State held that a convenience store parking lot was a public place. Gonzalez v. State, 664 S.W.2d 797, 801 (Tex. App.CCorpus Christi 1984), vacated on other grounds, No. 263-84 (Tex. Crim. App. July 18, 1984) (convenience store parking lot). We agree with that conclusion. In addition, other courts have consistently held that parking lots are public places. See State v. Nailor, 949 S.W.2d 357, 359 (Tex. App.CSan Antonio 1997, no pet.) (hotel parking lot); Kapuscinski v. State, 878 S.W.2d 248, 250 (Tex. App.CSan Antonio 1994, pet. ref=d) (nightclub parking lot); Thibaut v. State, 782 S.W.2d 307, 308 (Tex. App.CEastland 1989, no pet.) (condominium parking lot). Although appellant points out that she was parked in a Ano parking zone,@ a prohibition against parking does not render an area inaccessible to the public. See Perry v. State, 991 S.W.2d 50, 52 (Tex. App.CFort Worth 1998, pet. ref=d) (AThe fact that a park=s hours of operation are over and the public is not >supposed= to use the park is irrelevant to the determination of whether the place is one to which the public has access. The relevant inquiry is whether the public can enter the premises.@). Nor does the size of the parking lot indicate the public did not have access to it; it at most indicates that access was limited to only a few members of the public at a given time. Because the jury could have rationally concluded that the convenience store parking lot was a public place, we overrule appellant=s point of error and affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed April 6, 2004. Panel consists of Justices Fowler, Edelman, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The officer testified as follows: Q: Now, the parking lot to the little convenience store, is it accessible to the public? A: Yes, sir.