By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Insufficient evidence of violation of
probation condition by discharging a firearm in a public place (00-1-04)
On November 24, 1999, the San Antonio Court of Appeals reversed a revocation
of probation and rendered judgment denying the motion to modify because the
evidence failed to show that the place where the probationer discharged a
firearm was a public place as required by law and there was therefore
insufficient evidence that respondent violated his probation by committing a
criminal offense.
00-1-04. In the Matter of A.G.O., UNPUBLISHED, No. 04-99-00155-CV, 1999 WL
1073857, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 11/24/99)[Texas Juvenile
Law 212 (4th Edition 1996)].
Facts: A.G.O. appeals the trial court's order revoking his juvenile probation
and committing him to the Texas Youth Commission. In four points of error, A.G.O.
contends the record does not support the trial court's finding that he
intentionally discharged a firearm in a public place and the trial court erred
in admitting testimony under the excited utterance exception to the hearsay
rule. Because no reasonable view of the record supports a finding that A.G.O.
discharged a firearm in "a public place other than a public road," we
reverse.
The juvenile court adjudicated A.G.O. delinquent for committing the offense of
burglary of a habitation with force and placed A.G.O. on community supervision
for twenty months. Six months later the State filed a motion to modify the
disposition alleging A.G.O. violated the conditions of his community supervision
by discharging a firearm in a public place other than a public road or sport
shooting range in violation of section 42.01(a)(9) of the Texas Penal Code. The
trial court signed orders of adjudication and disposition, finding A.G.O.
committed delinquent conduct by violating the terms of his probation and
committing him to the Texas Youth Commission. See Tex.Fam.Code Ann. s 54.05(f)
(Vernon 1996). The trial court denied A.G.O.'s motion for new trial and he
appeals.
Held: Reversed and rendered.
Opinion Text: We review the trial court's modification of a juvenile disposition
for abuse of discretion. In re H.G., 993 S.W.2d 211, 213 (Tex.App.--San Antonio
1999, no pet.). Under an abuse of discretion standard, the trial court's
resolution of a factual matter must be sustained if it is supported by any
reasonable view of the record but its resolution of a question of law is
reviewed de novo. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992).
The record establishes A.G.O. discharged a shotgun while in the back yard of his
home. However, in his first point of error A.G.O. argues the record does not
support the trial court's finding that this conduct occurred in a "public
place," as required by section 42.01 of the Texas Penal Code. [FN2]
FN2. The motion to modify alleged A.G.O. violated section 42.01(a) of the Penal
Code, which provides:
(a) A person commits an offense if he intentionally or knowingly:
...
(9) discharges a firearm in a public place other than a public road or a sport
shooting range....
Tex.Pen.Code Ann. s 42.01(a)(9) (Vernon 1994).
The State contends a private residential back yard may be found to be a
"public place" in some circumstances, and the trial court was within
its discretion to so find in this case. We disagree. Circumstances may render an
otherwise private yard a "public place ." See Tex.Pen.Code Ann. s
1.07(a)(40) (1994); [FN3] Clinton v. State, 64 Tex.Crim. 446, 142 S.W. 591
(1912). However, there is no evidence in this record of any circumstances
tending to suggest A.G.O.'s back yard is a public place. To the contrary, the
yard is adjacent to the house and completely fenced; the gate to the yard is
kept closed and there are two pit bulls in the yard, the purpose of which is to
keep people out; and there is no evidence groups of people congregated in the
yard either on this occasion or any other.
FN3. "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) (Vernon 1994).
The State next argues that, pursuant to Penal Code section 42.01(c), the conduct
is deemed to have occurred in a public place because it produced offensive
consequences "near a private residence." [FN4] We again disagree. The
disorderly conduct statute proscribes certain conduct "in a public
place", see, e.g ., Tex.Pen.Code Ann. §§ 42.01(a)(1)-(6), (9)-(10)
(Vernon 1994), and certain conduct "in or near a private residence."
See id. § 42.01(a)(5). Conduct is deemed to occur in a public place if its
offensive consequences are produced in the public place. Id. § 42.01(c)(1)
(Vernon Supp.1998). Likewise, conduct occurs near a private residence if its
offensive consequences are produced near a private residence. Id. The plain
language of the statute does not support the State's position that conduct is
deemed to occur in a public place if its consequences are produced near a
private residence.
FN4. Section 42.01(c)(1) provides:
(c) For purposes of this section:
(1) an act is deemed to occur in a public place or near a private residence if
it produces its offensive or proscribed consequences in the public place or near
a private residence;
Tex.Pen.Code Ann. § 42.01(c)(1) (Vernon Supp.1998).
Finally, the State argues the trial court could reasonably infer A.G.O.'s
conduct produced its offensive consequences in a public place. We disagree.
There is some evidence A.G.O. shot the rifle in the air and the noise was heard
inside the house. Thus, the trial court could reasonably infer the noise was
heard in the area surrounding the house and yard and the bullet fell somewhere
outside the yard. But the only evidence regarding the surrounding area is a
police officer's testimony that the house is on a street in a "regular
neighborhood." Although it is reasonable to infer the rifle shot produced
its offensive consequences in the nearby public street, to constitute a
violation of section 42.01(a)(9), the public place must be one other than a
public road. In short, there is no evidence from which one could reasonably
infer the existence of a public place other than a public road in proximity to
A.G.O.'s house and yard.
Because we conclude no reasonable view of the record supports the trial court's
finding that A.G.O. violated the conditions of his probation by committing
disorderly conduct, we sustain A.G.O.'s first point of error, reverse the trial
court's orders, and render judgment denying the State's motion to modify
disposition.