Case: 11-51085     Document: 00511911220         Page: 1     Date Filed: 07/05/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 5, 2012
                                     No. 11-51085
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WILLIAM ARNOLD ZELLMAR, also known as William A. Zellmar,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:11-CR-72-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant William Arnold Zellmar appeals his jury trial
conviction under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13, for driving
while intoxicated in a public place within the special maritime and territorial
jurisdiction of the United States in violation of 18 U.S.C. §§ 7(3) and 13 and
Texas Penal Code §§ 49.04 and 49.09(b)(2). Zellmar contends that the evidence
was insufficient to show that he was in a public place when he drove a vehicle
while intoxicated.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 11-51085


      Zellmar did not preserve his challenge to the sufficiency of the evidence by
making a motion for a judgment of acquittal. Therefore, we review Zellmar’s
challenge to the sufficiency of the evidence only to determine whether there was
a manifest miscarriage of justice. See United States v. Pierre, 

,
1310 (5th Cir. 1992). A manifest miscarriage of justice exists only if the record
is “devoid of evidence pointing to guilt” or if the evidence “was so tenuous that
a conviction would be shocking.” United States v. Ruiz, 

, 617 (5th
Cir. 1988) (internal quotation marks and citation omitted).
      The ACA provides that: a person who is guilty of an act or omission,
      not punishable by any enactment of Congress, committed within the
      special maritime or territorial jurisdiction of the United States (i.e.
      a federal enclave), that would be punishable if committed within the
      jurisdiction of the state, territory, possession or district in which the
      federal enclave is located, is subject to federal prosecution under the
      state law.

United States v. Fesler, 

, 386 n.1 (5th Cir. 1986). Pursuant to Texas
Penal Code § 49.04(a), a person commits the offense of driving while intoxicated
if he was intoxicated while operating a motor vehicle in a public place. Under
Texas law a public place is defined 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.” Id. at § 1.07(a)(40).
      Zellmar insists that there is insufficient evidence that the tank trail on
which he drove was a public place. There is no indication in the record, however,
that there was anything preventing a member of the public from driving on the
tank trail. See United States v. Collazo, 

, 796 (5th Cir. 1997). A
rational jury could conclude that members of the public had access to the area
where Zellmar was found and that the tank trail thus was a public place. See
id. at 795; Ruiz, 860 F.2d at 617. Alternatively, evidence was presented that


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   Case: 11-51085   Document: 00511911220    Page: 3   Date Filed: 07/05/2012

                                No. 11-51085

Zellmar drove on Nolanville Road while intoxicated and that Nolanville Road is
a public road.
      The record in this case is not devoid of evidence pointing to guilt. See
Ruiz, 860 F.2d at 617, including sufficient evidence to prove the intoxication,
driving, and public place elements of the charged offense. The judgment of the
district court is
AFFIRMED.




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