Hale Jr., Thomas Powell v. State

Affirmed and Opinion filed _____________, 2002 Affirmed and Opinion filed February 13, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00286-CR ____________ THOMAS POWELL HALE, JR. Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court Chambers County, Texas Trial Court Cause No. 20191-00 M E M O R A N D U M   O P I N I O N Appellant was convicted of driving while intoxicated and sentenced to eighteen months’ probation and a $1,000 fine. Appellant asserts the evidence is insufficient either to show he was intoxicated at the time he drove or to corroborate his extrajudicial admission of driving. Following the usual standards of review for evaluating factual and legal sufficiency, we affirm. See King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000); Westbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Around 11:00 p.m. on August 26, 2000, Trooper Jason Taylor was dispatched to investigate an accident reported on Interstate 10. About fifteen minutes later, Taylor came upon the scene, and found appellant’s truck resting partially off the shoulder of the highway on the grass. Appellant was asleep in the floorboard truck, with the engine running. Taylor woke appellant and asked him to get out of the truck. Taylor testified that he smelled alcohol on appellant’s breath and that appellant admitted he had been drinking. Appellant told Taylor he had driven from Sylvan Beach Park and stopped because of a blow-out. After appellant performed poorly on several field sobriety tests, Taylor arrested him for driving while intoxicated. Taylor also spoke with an eyewitness who had reported the accident after he saw appellant’s vehicle collide with the guardrail. A person commits the offense of driving while intoxicated by operating a motor vehicle in a public place while intoxicated. Tex. Pen. Code Ann. § 49.04 (Vernon Supp. 2001). Appellant argues the evidence is insufficient to show he “operated” the motor vehicle. Barton v. State, 882 S.W.2d 456, 458 (Tex. App.—Dallas 1994, no pet.). He also argues that an extrajudicial admission of driving is insufficient. Coleman v. State, 704 S.W.2d 511, 512 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d); Hanson v. State, 781 S.W.2d 445, (Tex. App.—Fort Worth 1989, pet. granted), appeal abated, 790 S.W.2d 646 (Tex. Crim. App. 1990) (abating appeal due to death of appellant). But evidence that the accused was the sole occupant of a vehicle and was seated in the driver’s seat with the engine running, when combined with an admission to the arresting officer that he was driving, has been held sufficient to show that the accused was driving. See Hearne v. State, 80 S.W.3d 677, 678–79 (Tex. App.—Houston [1st Dist.] 2002); Yoens v. State, 988 S.W.2d 404, 408 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Therefore, we find the totality of the evidence here is factually and legally sufficient to support appellant’s conviction for driving while intoxicated. The judgment is affirmed. /s/ Scott Brister Chief Justice Judgment rendered and Opinion filed February 13, 2003. Panel consists of Chief Justice Brister and Justices Hudson and Yates. Do Not Publish — Tex. R. App. P. 47.2(b).