Juan Gabriel Rodriguez v. State

Opinion to: SR TJ EVK ERA GCH LCH JB JS MM TGT Opinion issued on September 24, 2009 In The Court of Appeals For The First District of Texas NO. 01-08-01038-CR juan gabriel rodriguez, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from County Criminal Court at Law No. 11 Harris County, Texas Trial Court Cause No. 1513830 MEMORANDUM opinion A jury convicted appellant, Juan Gabriel Rodriguez, of the Class B misdemeanor offense of driving while intoxicated. The trial court assessed punishment at confinement for 180 days and a fine of $500, suspended the confinement portion of the sentence and placed appellant on community supervision for one year.[1] On appeal, Rodriguez complains that the evidence is legally and factually insufficient to show that he operated a motor vehicle. We affirm. Background While on patrol during the early morning hours of March 14, 2008, Deputy Stephen Herrmann of the Harris County Sheriff’s Office was dispatched to an unknown medical emergency at the intersection of Uvalde and Woodforest. As he approached the intersection in his patrol car at approximately 1:30 a.m., Deputy Herrmann observed a white Dodge truck parked in the roadway. Although the truck’s headlights were off, its engine was running and its brake lights were on. Appellant, the truck’s sole occupant, was sitting in the driver’s seat, apparently unconscious, with his arms hanging down along his side and his foot on the brake pedal. The deputy reached in the open driver’s side window, turned off the truck’s engine, and attempted to rouse appellant by nudging and shaking him. When appellant finally awoke, Deputy Herrmann noticed that appellant’s eyes were bloodshot and watery and he was mumbling incoherently. The deputy also smelled alcohol on appellant’s breath. When asked to step out of the vehicle, appellant was unsteady on his feet and needed assistance walking. At that point, Deputy Herrmann detained appellant and drove him to the police station for further investigation. During a videotaped interview at the station, appellant acknowledged that he had consumed four twelve-ounce bottles of beer that evening, the last of which he consumed at 10:45 p.m. He denied, however, driving or operating a vehicle that evening while under the influence of alcohol. Appellant also politely refused to perform any of the standardized field sobriety tests offered to him or to submit to a breathalyzer test. Appellant was arrested later that morning and subsequently charged for operating a motor vehicle in a public place while under the influence of alcohol. Standard of Review In assessing legal sufficiency, the reviewing court must consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that the accused committed all essential elements of the offense. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). We must “evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). In conducting a legal-sufficiency review, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). It is the function of the trier of fact to resolve any conflict of fact, to weigh any evidence, and to evaluate the credibility of any witnesses. See Dewberry, 4 S.W.3d at 740; Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); see also Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). We therefore resolve any inconsistencies in the evidence in favor of the verdict, Matson, 819 S.W.2d at 843, and “defer to the jury’s credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007)(citing Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000)). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Such a wrong and unjust verdict includes instances in which the jury’s finding is manifestly unjust, “shocks the conscience,” or “clearly demonstrates bias.” See id. at 417, 442. Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. at 417. Before concluding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting our review, we must be cognizant of the fact that a jury has already passed on the facts and avoid substituting our judgment for that of the jury. Lancon v. State, 253 S.W.3d 699, 704–05 (Tex. Crim. App. 2008). The jury is the sole judge of the credibility of the witnesses, and the weight to be given their testimony, and may choose to believe all, some, or none of the testimony presented. Id. at 707. We therefore afford almost complete deference to a jury’s determination when that decision is based on an evaluation of credibility. Id. at 705. Unless the record clearly indicates that a different result is appropriate, we must defer to the jury’s determination concerning what weight to be given contradictory evidence. See id. at 706. In conducting a factual-sufficiency review, we also must discuss the evidence that, according to the appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not find the evidence factually insufficient simply because we disagree with the verdict, but only because the verdict represents a manifest injustice. Watson, 204 S.W.3d at 414. Sufficiency of the Evidence Appellant asserts that the evidence is both legally and factually insufficient to support his conviction for driving while intoxicated because there is no evidence that he was operating a motor vehicle. Specifically, appellant argues that (1) there is no evidence that the truck belonged to him, (2) there is no evidence that anyone saw him driving the truck, and (3) there is no evidence regarding the length of time the vehicle was parked at the intersection. He asserts that therefore, under the law as set forth in Reddie v. State, 736 S.W.2d 923 (Tex. App.—San Antonio 1987, pet. ref’d) and Ballard v. State, 757 S.W.2d 389 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d), the evidence is legally insufficient to support his conviction. Appellant also challenges the factual sufficiency of the evidence. Appellant argues that the evidence purportedly showing that he operated a motor vehicle while intoxicated is so weak that the verdict is clearly wrong and manifestly unjust. In Reddie and Ballard, police officers found the defendant intoxicated and unconscious, sitting behind the wheel of a parked car on or near a roadway with its engine running. Reddie, 736 S.W.2d at 924–25; Ballard, 757 S.W.2d at 391–92. No evidence was presented in either case that showed whether the defendant was intoxicated before the time that the car was parked, how long the defendant had been intoxicated or in the car, who owned the car, or who had parked the car. Reddie, 736 S.W.2d at 927; Ballard, 757 S.W.2d at 391. Although the Reddie court acknowledged that the evidence supported an obvious inference that the person found intoxicated and sleeping behind the wheel was the person who had been driving it, the court found the evidence insufficient because other reasonable hypotheses existed. Reddie, 736 S.W.2d at 926. Following the reasoning in Reddie, the Ballard court also concluded that the evidence in that case was not legally sufficient to prove that the defendant operated the car while intoxicated. Ballard, 757 S.W.2d at 391–92. Although appellant is correct in noting that the facts in his case are strikingly similar to the facts in both Reddie and Ballard, his reliance upon these cases is misplaced. Reddie and Ballard were decided under the reasonable alternative hypothesis construct for circumstantial evidence. This construct, however, is no longer the law in Texas. See Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991) (rejecting use of alternative reasonable hypothesis construct as a method of appellate review for evidentiary sufficiency). Under the current standard, the evidence need not exclude all reasonable alternative hypotheses in order to be legally sufficient. Under Texas law, a person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). While there is no statutory definition of the term “operate,” the Texas Court of Criminal Appeals has determined that a person “operates” a vehicle when the totality of the circumstances demonstrate the person took action to affect the functioning of the vehicle in a manner that would enable its use. Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995); see also Milam v. State, 976 S.W.2d 788, 789 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (concluding appellant was operating vehicle when his car’s engine was running, car was in gear, and appellant had his foot on the brake); Barton v. State, 882 S.W.2d 456, 459 (Tex. App.—Dallas 1994, no pet.) (concluding appellant was operating vehicle when vehicle, with engine idling, was standing still in roadway protruding into intersection and appellant was asleep behind wheel with feet on clutch and brake). Here, appellant was observed in a vehicle that was parked in the roadway with its engine running. Appellant was unconscious behind the wheel, with his foot on the brake. Viewing the evidence in the light most favorable to the verdict, we hold that a rational juror could have found, beyond a reasonable doubt, that appellant was operating a vehicle while intoxicated and therefore guilty of the offense of driving while intoxicated. Reviewing all of the evidence in a neutral light, and giving deference to the jury’s determinations on credibility and the weight to be given contradictory evidence, we conclude that the evidence is not so weak as to render the jury’s verdict clearly wrong and manifestly unjust. See Lancon, 253 S.W.3d at 706. We hold that the evidence is legally and factually sufficient to support appellant’s conviction and overrule appellant’s first and second issues. CONCLUSION We affirm the judgment of the trial court. Jim Sharp Justice Panel consists of Justices Jennings, Higley, and Sharp. Do not publish. Tex. R. App. P. 47.2(b). [1] See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003).