XXV. Putting Defendant Behind the Wheel

A. DEFENDANT STATEMENT THAT HE WAS DRIVER = SUFFICIENTLY CORROBORATED

Nieschwietz v. State, No. 04-05-00520-CR, 2006 WL 1684739 (Tex.App.-San Antonio 2006, pet. ref’d).

In this case, the defendant challenged the sufficiency of the evidence to establish that he was driving on a public highway while intoxicated, because his extrajudicial confession on the videotape (that he was making a turn when the other car hit him) was not corroborated by other evidence. The Court found that the defendant’s admission in the videotape that he was driving the vehicle was sufficiently corroborated by his presence at the scene, the vehicle insurance documents listing him as owner of the vehicle, and the officer’s opinion based on his investigation that defendant was the driver.

Frye v. State, No. 05-03-01050-CR, 2004 WL 292660 (Tex.App.-Dallas 2004, no pet.)  (not designated for publication).

Trooper who was dispatched to scene of accident saw defendant leaning against bed of pickup truck. Asked if he was okay, the defendant replied he was “going too fast to negotiate the corner and he wrecked the vehicle”. He did not say how long he had been at the scene. He appeared intoxicated and admitted to having had some beers while he was fishing earlier that day. No fishing equipment was observed in the vehicle. Court found that the officer’s testimony and the station house video provided sufficient corroboration of his statement he was driving.

Youens v. State, 988 S.W.2d 404 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

Where defendant was seated in truck with engine running, his statement at the scene that he was driving the truck when the accident happened and further statement that 20 to 25 minutes had elapsed since the accident occurred provided sufficient basis for jury to find defendant was driving while intoxicated.

Walker v. State, 701 S.W.2d 2 (Tex.App.-Corpus Christi 1985, pet. ref’d).

Statement by defendant to officer at accident site that he was driver sufficient evidence to prove he was driver.

Bucek v. State, 724 S.W.2d 129 (Tex.App.-Fort Worth 1987, no pet.).

Defendant’s statement that he was the driver may be sufficient when other corroborating evidence is available.

Folk v. State, 797 S.W.2d 141 (Tex.App.-Austin 1990, pet. ref’d).

Provided there is other evidence that a “crime was committed” the identification of the defendant as the perpetrator (i.e., statement that he was driver) may rest alone upon his confession. In any event, proof that car was registered to person defendant lived with = sufficient corroboration.

B. SUFFICIENT EVIDENCE OF “DRIVING/OPERATING”

Dansby v. State, No. 12-15-00269-CR, 2017 Tex. App. LEXIS 3897, 2017 WL 1534051 (Tex. App. – Tyler 2017)

This is a DWI case where the defendant was found inside a Whatabuger and his vehicle was found running, unoccupied at the convenience store next to the Whataburger. The defendant admitted to owning the vehicle, to driving it to the location and admitted to drinking. The defendant argued that there was no probable cause to arrest because no one saw him driving. The court resolved this issue by stating that there was enough evidence to infer that someone had operated the vehicle to get it to the location coupled with defendant’s admission as to where he had driven that night.

Castillo v. State, No. 02-16-00127, 2017 Tex. App. LEXIS 2762, 2017 WL 1173839 (Tex. App. – Fort Worth 2017)

In this case the defendant claimed that the State lacked sufficient evidence to prove he was operating a motor vehicle. A witness found defendant parked in the left lane of the highway attempting to start his vehicle. When the witness approached the defendant, he was attempting to start the vehicle, although the car would not turn over, the raid would turn on. The defendant told the witness that he had ran out of gas and asked him for help getting off the highway. The court found this evidence to be sufficient to support a finding of probable cause.

Anderson v. State, No. 02-15-00405-CR, 2016 WL 1605330 (Tex.App.-Fort Worth)

Officer was dispatched to rear parking lot of bar at 3:24 a.m. in response to call from security guard who reported a man asleep in his vehicle with is engine on. When officer arrived at scene he discovered a vehicle oddly parked head on across two spaces that had been marked diagonally. Engine was running and headlights were on and vehicle was in park. As he approached he noticed strong order of alcoholic beverage. When he woke Defendant the Defendant reached for gearshift. No alcohol was found in vehicle though Defendant claimed to have been drinking in his vehicle. His alcohol level was found to be .22. Held to be sufficient evidence of operating. Court took the time to distinguish older pre-Geesa cases cited by defense.

Murray v. State, 457 S.W>3d 446 (Tex.Crim.App.2015)

This is a case where Court of Criminal Appeals reversed Court of Appeals in its holding that there was insufficient evidence of operating and rendering of an acquittal. The Court of Criminal Appeals found that it was sufficient that vehicle was parked on side of road partially in a private driveway. Defendant was asleep in driver’s seat, the engine was running, no one else was in or in vicinity of vehicle when officer arrived, no open containers were in vehicle. Officer smelled odor of alcohol beverage when window was rolled down, and Defendant appeared intoxicated and admitted he had been drinking. The Court of Appeals incorrectly focused on missing evidence.

Priego v. State, 457 S.W3d 565 (Tex.App.-Texarkana 2015, pdr ref’d)

Evidence was found sufficient even without anyone seeing Defendant driving based on the following:  Defendant arranged for someone to buy her two bottles of whiskey 15 to 20 minutes before discovered unconscious in parked but running vehicle, in a business parking lot a short distance from liquor store, wearing seatbelt, with partially consumed bottle of liquor on truck floorboard.

Arocha v. State, No. 02-14-00042-CR, 2014 WL 6997405 (Tex.App. –Fort Worth 2014)

While investigating scene of accident where it appeared one car had rear ended another vehicle which had someone still in it, the Defendant and companion walked up to officer and said he had been drinking. The other car that he had struck had pulled in front of him. Later investigation supported DWI arrest of Defendant. Based on the other driver’s injuries and debris on road pointing to crash being of recent origin, Defendant being present at scene making it more likely had had driven one of the cars, and the details given on how crash occurred there was sufficient corroboration of statement he was driving to support arrest.

Stephenson v. State, No. 14-13-00303-CR, 2014 WL 3051229 (Tex.App. –Houston [14th Dist.] 2014, pdr ref’d).

Citizen’s vehicle was struck by a vehicle which did not immediately stop.  He followed vehicle as it traveled down the road and when it did stop, he saw a female exit the passenger’s side door and come to speak to him. When police arrived, the female was seated in the driver’s seat. There is no mention of any testimony explaining how the female came to be there but ultimately the Court of Appeals found that a jury could conclude that the evidence that a female was in the proximity of the passenger side after the vehicle stopped was sufficient circumstantial evidence that the Defendant (who is male) was the driver of the vehicle.

Marroquin v. State, No. 08-12-00316-CR, 2014 WL 1274136 (Tex.App -El Paso 2014).

The Defense argued that there was insufficient evidence that the Defendant was operating a motor vehicle while he was intoxicated. In rejecting that argument, the Court focused on the fact that the evidence showed the Defendant was found stopped in the middle of the road where he had run out of gas during rush hour traffic, was the only occupant inside the truck, the keys were in the ignition and the truck was not in park when he exited it. In response to the argument the State could not show how long he was there before the officer arrived, the Court found that the jury could have reasonably inferred that the Defendant was found shortly after he ran out of gas focusing on the facts mentioned above and the fact that one of the beers found in the vehicle was still cold to the touch. The fact that the Defendant was not observed driving by the officer does not matter as the jury could have inferred he had been doing so when he ran out of gas.

Mccann v. State, 433 S.W.3d 642 (Tex.App.-Houston [1st Dist] 2014, no pet.).

Court held that evidence was sufficient to prove Defendant was operating a vehicle while intoxicated when he was found alone and nearby his vehicle, failed sobriety tests, and his vehicle was on a median with air bags deployed after having crashed into a tree. Additionally, the engine was warm, there were no nearby places where Defendant could have procured alcohol, and he admitted he had been driving after consuming four drinks. Cites Kuciemba v. State reasoning regarding inferences that can be drawn from one vehicle crashes where driver is intoxicated when found at the scene.

Rodriguez v. State, No. 08-11-00345-CR, 2013 WL 6405500 (Tex.App.-EI Paso 2013, no pet.).

Even though the State did not present the testimony of any witnesses who observed Defendant drive the car, it did offer statements and circumstantial evidence from which it can be inferred that he operated the vehicle. The convenience store clerk saw Defendant walk into the store alone and observed his car parked in the handicap space. She told him that he could not park in there. He did not deny driving the car but insisted that he was not parked in the handicap space and that he would only be in the store for a short time. Defendant told the officer that he parked in the handicap spot and claimed he did not know that he couldn’t do so. After being placed under arrest for driving while intoxicated, Defendant told the officer that he could not be arrested for driving while intoxicated because he had been driving earlier, but he had gotten out of the car by the time the officer arrived, and therefore, he could only be arrested for public intoxication. The jury could have rationally found beyond a reasonable doubt that Appellant was operating a motor vehicle at the time of the accident.

Schragin v. State, 378 S.W.3d 510 (Tex.App.-Fort Worth 2012, no pet.).

This case involves a challenge to the sufficiency of the evidence that Defendant was “operating” a motor vehicle. Officer responded to dispatch call and found the Defendant’s vehicle parked, approximately two feet away from the curb, with the lights on. Despite the vehicle’s distance from the curb, it was legally parked. The officer “spotlighted the vehicle”, and observed a male slumped over in the driver’s side seat. Officer testified he found Defendant asleep in driver’s seat with engine on. Court found this evidence was sufficient to support the jury finding that he was operating a motor vehicle.

Molina v. State, No. 07-09-00022-CR, 2010 WL 980560 (Tex.App.-Amarillo 2010).

Officers were called out to investigate a suspicious vehicle in a cul-de-sac and upon arrival observed defendant asleep behind the wheel of the vehicle. The keys were in the vehicle’s ignition and the car and radio were both on. Defendant was also in a position in the vehicle that he was able to reach the brake pedal. The police officers proceeded to wake him and, after conducting field sobriety tests, arrested him for driving while intoxicated. In holding State had proved operating, the Court points out that any person intending to drive would first have to turn the key to start the car; the fact that the key was turned and the engine was running could be interpreted by the jury as operating the vehicle. Though no one observed appellant start the vehicle, the fact that defendant was the only person in the vehicle, and in the driver’s seat, and able to operate the brake lights is circumstantial evidence that the jury could have used in determining guilt.

Roane v. State, No. 05-09-00927-CR, 2010 WL 3399036 (Tex.App.-Dallas 2010, no pet.) (not designated for publication).

In this case a 9-1-1 call about a major accident led officer to arrive at scene of crash where he found defendant outside of the vehicle. Court held evidence sufficient that defendant had driven the vehicle based on fact that defendant was found standing next to the driver’s door of the vehicle, had the vehicle’s keys in his pocket, and told officer that passenger’s injury prohibited her from driving.

Ledet v. State, No. 01-08-00367-CR, 2009 WL 2050753 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (not designated for publication).

Police dispatcher received approximately 15 reports of a disabled car blocking two lanes of traffic on the freeway. When officer arrived at the scene around 6:00 a.m., he saw that the car was perpendicular to the flow of traffic, blocking two of the freeway’s four lanes, located approximately a quarter mile from the nearest freeway exit ramp and 200 to 300 yards from the nearest freeway entrance ramp. Defendant was unconscious and sitting in the driver’s seat, which was in the “laid­ back position”. The car’s engine was running, the transmission was in the “park” gear, and the driver’s window was down. Defendant smelled of alcohol and eventually woke up after officer administered two “sternum rubs”. Defendant refused to take field-sobriety tests, and admitted on cross-examination he had no idea how long the car had been stopped on the freeway, whether he had driven the car, or if another passenger had been in the car before he arrived at the scene. Court held evidence was sufficient and cites to other cases that remind us that “reasonable hypothesis” standard is gone.

Villa v. State, No. 07-06-0270-CR, 2009 WL 2431511 (Tex.App.-Amarillo 2009, pet. ref’d).

Defendant’s vehicle was found parked in the landscaped area of the apartment complex with headlights on, engine running and defendant sitting behind the wheel with his head resting against the steering wheel. Defendant argues that his vehicle was in park and that no one saw him start, shift, or otherwise operate the vehicle. The Court rejected this argument pointing out that even though there was no direct evidence to show defendant drove the car to its resting place, there was legally and factually sufficient circumstantial evidence that he did so.

Watson v. State, No. 2-07-429-CR, 2008 WL 5401497 (Tex.App.-Fort Worth 2008, pet. ref’d).

In this case a taxicab driver testified that he observed a vehicle driving erratically on the date in question and reported the incident to the police. An officer in the vicinity testified that he found a vehicle matching the description given by the taxi driver stopped on a grassy median with the defendant slouched over in the driver’s seat with the lights on and engine running. Citing the Denton case, the Court stated that it rejected the contention that to operate a vehicle within the meaning of the statute, the driver’s personal effort must cause the automobile to either move or not move. Purposely causing or restraining actual movement is not the only definition of “operating” a motor vehicle.  In this case there was sufficient proof of “operating” a motor vehicle.

Dornbusch v. State, 262 S.W.3d 432 (Tex.App.-Fort Worth 2008, no pet.).

Where defendant’s vehicle was found in back of restaurant parking lot with headlights on, engine running, radio playing loudly, and defendant was sitting in driver’s seat either asleep or passed out, and there was testimony indicating that vehicle was not in park and that the only thing keeping vehicle from moving was the curb—then that was sufficient evidence that he was “operating” his motor vehicle.

Vasquez v. State, No. 13-05-00010-CR, 2007 WL 2417373 (Tex.App.-Corpus Christi 2007, no pet.).

Officer found defendant asleep in the driver’s seat of his vehicle with the engine running, the gear in “park,” and the headlights on. The vehicle was situated in the center of two eastbound lanes on a public roadway. After officer approached the vehicle, he proceeded to open the driver’s side door, and as he leaned inside the car to turn off the engine, he noticed a strong odor of alcohol on defendant’s breath and person. Appellant was unresponsive at first but ultimately woke up and was determined to be intoxicated. Evidence held to be sufficient proof of operating.

Cartegena v. State, No. 14-05-00103-CR, 2006 WL 278404 (Tex.App.-Houston [14th Dist.] 2006, pet. ref’d) (not designated for publication).

Case where officer first spotted defendant’s vehicle parked on the shoulder of the roadway and defendant standing next to it urinating. Driver’s seat was empty and his wife was in the front passenger seat, held that his statement that he was driving was sufficiently corroborated.

Farmer v. State, No. 2-06-113-CR, 2006 WL 3844169 (Tex.App.-Fort Worth Dec 28, 2006, pet.ref’d).

Officer noticed a car on the shoulder that had its hazard lights on. He testified that a female appeared to be changing a flat tire. He and another trooper stopped to see if the female needed assistance and noticed she appeared to be intoxicated. In attacking the sufficiency of the proof that the defendant operated her vehicle, she points to the fact that there was no evidence that the car’s engine was running or had been running before the troopers approached the car, that neither trooper testified that the vehicle’s hood or engine compartment was warm, that there was no evidence to show how long the car had been parked in the access road before the troopers saw it, that the state failed to offer any evidence that she was the owner of the car, that no witnesses testified that they saw her operate the car, and that there was no evidence to link her physical state at the scene of the arrest to her physical state at the time of the alleged driving. The defendant had told the officers she was on her way home from Denton. This statement was sufficient corroborated by the evidence that the troopers had stopped to help the defendant about ten miles outside of Denton. The defendant’s car, with the flat tire, was in the middle of the Interstate service road. The troopers noted that the defendant’s hazard lights were flashing and that the keys were in the ignition. Although the troopers remained at the scene for an extended period of time, no one besides defendant approached the car. The Court held that this evidence sufficiently corroborated the defendant’s extrajudicial admission that she was on her way home from Denton and was therefore operating a motor vehicle.

Young v. State, No. 2-04-437-CR, 2005 WL 1654763 (Tex.App.-Fort Worth 2005, no pet.) (not designated for publication).

Defendant’s extrajudicial statements that he consumed six to eight beers, that he drove the vehicle on the freeway and lost control were sufficiently corroborated by testimony he was found next to the vehicle, parked on shoulder of roadway, facing wrong direction, smelled of alcohol, and failed or refused various sobriety tests.

Claiborne v. State, No. 2-04-116-CR, 2005 WL 2100458 (Tex.App.-Fort Worth, 2005, no pet.) (not designated for publication).

Witnesses saw appellant’s car being driven erratically. One witness saw appellant walking away from the driver’s side door minutes after he saw the car being driven. Additionally, appellant walked away from police officers and into a grocery store after the police called out to him. After the officers found appellant, he led them to the car that witnesses had seen driving erratically. Under these facts, the Court held that there was sufficient proof that the defendant “operated” a motor vehicle.

Newell v. State, No. 2-04-234-CR, 2005 WL 2838539, (Tex.App. – Fort Worth, 2005, no pet.) (not designated for publication).

At 3:05 a.m., police officers found defendant asleep in the driver’s seat of his vehicle with the engine running, the gear in “park”, the headlights on, and his foot on the brake pedal. The car was on the shoulder of the I-20 ramp directly over the southbound lanes of Great Southwest Parkway, an area where it is generally unsafe to park. Upon awakening the defendant, it was determined he was intoxicated. Defendant claimed that there was insufficient proof of operating the vehicle because no witness saw defendant drive the vehicle to the location or knew how long he had been parked there, how long he had been intoxicated, or if anyone else had driven the car. Court of Appeals held evidence was sufficient.  The Texas Court of Criminal Appeals has held that “[t] to find operation under [the DWI] standard, the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of [the] vehicle in a manner that would enable the vehicle’s use.” Although driving always involves operation of a vehicle, operation of a vehicle does not necessarily always involve driving.

Peters v. Texas Department of Public Safety, No. 5-05-00103-CV, 2005 WL 3007783 (Tex.App.-Dallas 2005, no pet.) (not designated for publication).

Suspect found asleep in driver’s seat of a car parked in a field near highway frontage road (record does not speak to whether car was running). It took several attempts to wake suspect who was observed to have bloodshot eyes, slurred speech, and odor of alcohol. Officer noted there was damage to front end of car. Defendant admitted he had been drinking all night. Refused to do FSTs and refused to give breath sample. The above was held to be sufficient probable cause to arrest suspect for DWI.

Benedict v. State, No. 2-03-310-CR, 2004 WL 2108837, (Tex.App.-Fort Worth, 2004, pet. ref’d).

Citizen called dispatch regarding suspicious vehicle parked in roadway for almost two hours with its lights on. The vehicle was stopped in the roadway with its keys in the ignition and in drive. The two front tires were on rims. When officer arrived, he observed that the car was in a lane of traffic up against an island median, the engine was running, the car was in gear, the headlights were on, and appellant’s foot was on the brake. The officer testified that damage she observed on the car’s wheels was consistent with the wheels scraping the curb, and it appeared the car had been driven on its rims. Court found evidence was sufficient on issue of operating. In response to the argument that the car’s mechanical condition prevented its being driven, the Court held that the State did not have to prove that appellant drove or operated a fully-functional car.

Yokom v. State, No. 2-03-181-CR, 2004 WL 742888 (Tex.App.-Fort Worth 2004, pet. ref’d) (not designated for publication).

On the issue of whether the State proved “operating.” The officer found the defendant in his parked vehicle with motor running and slumped over the wheel of the car. He also found him to be intoxicated and the defendant admitted to consuming alcohol earlier. There were no open containers in the car. The court held that regardless of whether the defendant operated his truck in the officer’s presence, a rational trier of fact could have found beyond a reasonable doubt that he operated his truck prior to the officer’s arrival and that he was intoxicated when he did so.

Freeman v. State, 69 S.W.3d 374 (Tex.App.-Dallas 2002, no pet.).

Officer found defendant in her Ford Explorer with its right front tire against a curb, its motor running, the gear in the “drive” position, and its lights on. He tried to rouse the sleeping woman in the driver’s seat, but she did not respond at first. Ultimately, he woke her up and arrested her for DWI. The Court found that the circumstantial evidence indicated that the defendant, while intoxicated, exerted personal effort upon her vehicle by causing the motor to be running, the lights to be on, and by shifting the gear to drive. Further, as the result of her effort, the vehicle’s wheel rested against the curb of a public street. Conviction affirmed.

Hearne v. State, 80 S.W.3d 677 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

Defendant’s truck was parked in a moving Jane of traffic on a service road. His head was resting on one hand and leaning against the driver’s side window. The other hand was near his waist. The engine was running; gearshift was in park. He was not touching the accelerator or brake pedals. The officer did not see the defendant exert any action to attempt to control the truck. Court held that there was sufficient proof of “operating” citing Denton and Barton.

Chaloupka v. State, 20 S.W.3d 172 (Tex.App.-Texarkana, 2000, pet ref’d).

The following facts were held to be sufficient under the new post-Geesa “legal sufficiency” standard. Two witnesses observed defendant driving erratically—at one point driving into adjoining lane and hitting another vehicle and then continuing to drive off at a high rate of speed. One witness got the license number of the defendant’s vehicle. Police with aid of license number and notice that defendant was in a rest area found defendant in rest area. A witness at rest area noticed defendant get out of his vehicle with two beer bottles and a sack and noted he was stumbling and had difficulty with his balance and proceeded to urinate in public. When officer arrived at scene, defendant was sitting on a bench and drinking beer and was obviously intoxicated. Defendant failed FSTs and was arrested for DWI. Rest area was a couple miles from scene of collision. Good discussion of old standard that required the “reasonable hypothesis” analysis which was replaced in Geesa v. State, 820 S.W. 2d 154 (Tex.Crim.App. 1991).

Hernandez v. State, 13 S.W.3d 78 (Tex.App.-Texarkana 2000, no pet.).

In DWI accident, evidence that showed witness placed defendant on the driver’s side of a pickup truck that belonged to him immediately after the accident, was sufficient evidence for jury to find he was driving. This was the case even though defendant told the police at the scene and later on the tape that someone other than himself was driving and no witness could testify that they saw defendant driving.

Purvis v. State, 4 S.W.3d 118 (Tex.App.-Waco 1999, pet ref’d).

Defendant was found by civilian witness in his pickup in a ditch, with truck lights on. Defendant was passed out on floorboard with feet on driver side and head on passenger side, no one else in the area.  Evidence at the scene appeared to show path truck traveled from the road. Defendant admitted driving, appeared intoxicated and failed HGN—sufficient evidence under new post-Geesa standard and oral admission that defendant was driving was sufficiently corroborated.

Gowans v. State, 995 S.W.2d 787 (Tex.App.-Houston [1st Dist.] 1999, pet. ref’d).

Here the facts were that the defendant while driving left the highway and drove onto IP’s private driveway, striking the car IP was sitting in, causing his death. The defendant argued that since the car that he struck was on private property, the State failed to prove the public place element. The Court held that evidence that he drove on public highway prior to accident was sufficient.

Milam v. State, 976 S.W.2d 788 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

  1. Defendant was found asleep in his car in which he was the sole occupant;
  2. Engine was running and his foot was on the brake;
  3. Evidence showed car had been at the location less than 5 minutes;
  4. When awakened, defendant put car in reverse = sufficient evidence defendant “operated” his car.

Kerr v. State, 921 S.W.2d 498 (Tex.App.-Fort Worth 1996, no pet.).

Held that there was sufficient factual corroboration of defendant’s statement that he was driver to prove he “operated the motor vehicle.” Namely, that witness heard a car sliding into gravel and immediately came outside of his house and saw defendant get out of the car which was in the ditch.

State v. Savage, 933 S.W.2d 497 (Tex.Crim.App. 1996).

  1. Police found defendant’s truck stopped on entrance ramp of highway;
  2. Defendant sitting behind the wheel asleep;
  3. His feet were on floorboard;
  4. Headlights were on and engine was running;
  5. Gearshift was in park; and
  6. No empty alcoholic beverage containers were in car.

Wright v. State, 932 S.W.2d 572 (Tex.App.-Tyler 1995, no pet.).

Basis for stop came over radio dispatch where concerned citizen observed the bad driving and got close enough to see there was only one person in the vehicle and then lost sight of defendant who drove away. Officer found vehicle that matched description stopped in the roadway with his foot on the brake pedal. Even though citizen could not identify driver in court, it was held there was enough proof for  jury to find defendant was the same person driving.

Denton v. State, 911 S.W.2d 388 (Tex.Crim.App.1995).

To find “operation” of a motor vehicle, the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle’s use. Starting the ignition and revving the accelerator was sufficient. Court rejected argument that some actual movement was required and cited Barton.

Barton v. State, 882 S.W.2d 456 (Tex.App.-Dallas 1994, no pet.).

Officer found vehicle standing still in roadway with engine idling. Motorist was alone in early morning hours and was asleep behind wheel with feet on clutch and brake. When aroused by police officer, motorist immediately exerted personal effort to control truck and affect functioning by engaging clutch, changing gears, and reaching to start engine which had been turned off by officer. Discussion of the rejection of the “reasonable hypothesis standard” rejected in Geesa.  Looking at the totality of the circumstances, Court held the evidence was sufficient. In so finding, the Court explained: “We do not accept the contention that to operate a vehicle within the meaning of the statute, the driver’s personal effort must cause the automobile to either move or not move.”

Turner v. State, 877 S.W.2d 513 (Tex.App.-Fort Worth 1994, no pet.).

  1. Police respond to accident scene;
  2. Defendant standing next to car;
  3. Steam coming from hood of car;
  4. Electricity transformer appeared to have been hit and electricity went out about 15 minutes before; and
  5. Defendant admitted driving.

This case held that defendant’s admission of driving, though not sufficient by itself, need only be corroborated by some other evidence.

Nichols v. State, 877 S.W.2d 494 (Tex.App.-Fort Worth 1994, pet. ref’d).

  1. Witness viewed defendant drive away from party in an intoxicated state;
  2. 20 minutes later defendant’s vehicle found abandoned alongside of the road, and the defendant was standing 30 feet away from it.

Ray v. State, 816 S.W.2d 97 (Tex.App.-Dallas 1991, no pet.).

Defendant found in his vehicle with engine running, stopped crosswise behind truck, slumped behind steering wheel, foot on brake pedal holding car in place while transmission in drive = sufficient.

Lopez v. State, 805 S.W.2d 882 (Tex.App.-Corpus Christi 1991, no pet.).

  1. Officer observed defendant move from driver’s seat to rear seat upon stopping his vehicle;
  2. Defendant found in rear seat feigning sleep;
  3. Officer had encountered defendant on previous stop attempting this same ruse.

Pope v. State, 802 S.W.2d 418 (Tex.App.-Austin 1991, no pet.).

  1. Defendant’s truck found stopped in roadway;
  2. Engine was running and lights were on;
  3. Truck belonged to defendant;
  4. Defendant sitting behind steering wheel.

Boyle v. State, 778 S.W.2d 113 (Tex.App.-Houston [14th Dist.] 1989, no pet.).

  1. Defendant’s car was stopped in traffic;
  2. Defendant was not asleep;
  3. Defendant had her foot on brake pedal;
  4. Car was in gear and engine running;
  5. No other person around car.

Reynolds v. State, 744 S.W.2d 156 (Tex.App.-Amarillo 1987, pet. ref’d).

  1. Defendant ’s car was halfway in a ditch;
  2. Defendant was alone;
  3. Defendant was behind the wheel;
  4. Defendant’s feet were on the floorboard under steering wheel;
  5. Driver’s door closed;
  6. Defendant admitted he was driving.

Yeary v. State, 734 S.W.2d 766 (Tex.App.-Fort Worth 1987, no pet.).

  1. Defendant’s vehicle involved in two car accident;
  2. No one but Defendant in cab of truck;
  3. Defendant was only person in vicinity of accident;
  4. Windshield missing from truck and lying on top of Defendant;
  5. Defendant told witness he wanted to get back up and drive truck.

Bucek v. State, 724 S.W.2d 129 (Tex.App.-Fort Worth 1987, no pet.).

  1. Confessed he was the driver of the vehicle;
  2. Defendant present at scene of accident;
  3. His car was the only other car on road;
  4. Approached the victim almost immediately disclaiming fault;
  5. Defendant was only other person present;
  6. Told his doctor he had hit his head in MV collision.

Keenan v. State, 700 S.W.2d 12 (Tex.App.-Amarillo 1985, no pet.).

  1. Defendant observed sitting behind wheel of car;
  2. Defendant slumped over;
  3. Car sitting partially in main traffic lane;
  4. Exhaust fumes seen coming from car.

Green v. State, 640 S.W.2d 645 (Tex.App.-Houston [14th Dist.] 1982, no pet.).

  1. Single vehicle accident;
  2. Witness arrived at scene of crash as soon as he heard it;
  3. Witness found defendant lying in front seat near steering wheel;
  4. Defendant positioned with his feet near steering wheel and head near passenger side;
  5. Nobody else in the car.

C. INSUFFICIENT CORROBORATION OF “DRIVING/OPERATING”

Texas Department of Public Safety v. Allocca, 301 S.W.3d 364 (Tex.App.-Austin 2009, no pet.).

Court of Appeals found under the following facts that motorist was not “operating” his vehicle while intoxicated, for purposes of suspension of license for refusal of test. He was found sleeping in the car with the front seat reclined, the car in park, the lights off, and the engine running (per suspect) solely for the purpose of air conditioning, while parked in a parking lot behind his place of employment.

Hanson v. State, 781 S.W.2d 445 (Tex.App.-Fort Worth 1990). Appeal abated, 790 S.W.2d 646 (Tex.Crim.App.1990).

  1. One car accident;
  2. Defendant found standing next to wrecked car;
  3. Defendant did not appear to be injured;
  4. Defendant admitted to the police that she had been driving.

Reddie v. State, 736 S.W.2d 923 (Tex.App.-San Antonio 1987, pet. ref’d).

  1. Defendant found slumped over wheel of car;
  2. Intoxicated;
  3. Motor running and car in gear.

Note: But see Barton cited above.

Ford v. State, 571 S.W.2d 924 (Tex.Crim.App.  1978).

  1. Officers arrived at intersection of public/private road;
  2. Defendant’s truck found 15–20 feet off roadway;
  3. Another car and three other people already at scene;
  4. No one is inside the truck.
  5. Upon inquiry, Defendant admitted he was the driver;
  6. No other evidence truck had traveled on road.

Chamberlain v. State, 294 S.W.2d 719 (Tex.Crim.App.  1956).

Defendant steering an automobile with engine not running as it moved upon a highway being pushed by another automobile was sufficient to constitute “driving and operating” of such automobile within statute prohibiting the driving or operating of a motor vehicle while under the influence of intoxication liquor. Vernon’s Ann. P. C. Art. 802.

D.  EVIDENCE OF INTOXICATION AT TIME DEFENDANT WAS DRIVING

  1. INSUFFICIENT
    • McCafferty v. State, 748 S.W.2d 489 (Tex.App.-Houston [1st Dist.] 1988, no pet.).
      • Where officer arrived at the scene of the accident one hour and twenty minutes after it occurred and a witness testified defendant did not appear intoxicated at the time of the crash, there was no extrapolation evidence. More than two hours passed before the defendant gave a breath test, and the State failed to establish that the defendant was not drinking in the time period following the crash and before the officer arrived = insufficient evidence defendant was “intoxicated while driving.” Reasonable hypothesis standard was applied. NOTE: This is a pre-Geesa opinion.
  2. SUFFICIENT
    • Murphy v. State, No. 03-13-00281-CR, 2014 WL 4179443 (Tex.App.-Austin 2014, pdr ref’d).
      • Defendant was found passed out at the wheel of his car in the lane of travel with engine running and transmission in park, no evidence of any alcohol in the vehicle, failed FST’s provided sufficient proof that he was driving while intoxicated.
    • Moseman v. State, No. 05-13-00304-CR, 2014 WL 2993826 (Tex.App.-Dallas 2014, no pet).
      • Officer came across a one car roll over and stopped and approached a group of people standing around the car. Defendant was in that group and appeared to have a fresh cut on his hand and wrist. Defendant admitted he had been driving and said the accident had just happened. Officer observed signs of intoxication and Defendant initially denied drinking but then admitted he had a beer an hour ago at a restaurant. Defendant challenged the sufficiency of the evidence and the Court found the following: his presence near the car, the injuries, the car’s title and registration reflecting the owners shared Defendant’s last name and address, and the denial by others that they had been driving were sufficient proof he was operating the vehicle. Even without extrapolation there was sufficient evidence, failed FST’s and blood test result, to raise an inference he was intoxicated at time of driving.
    • Pointer v. State, No. 05-09-01423-CR, 2011 WL 2163721 (Tex.App.-Dallas 2011, pdr ref’d).
      • The defendant was involved in a one-car accident with a parked car and was found to be intoxicated at the scene. Evidence showed he was the registered owner of the vehicle and no one else was in the vehicle. He admitted having four or five drinks two hours before the wreck, and he failed the sobriety tests. Officer arrived at the scene twelve minutes after receiving the dispatch. Court concluded that the evidence was sufficient to link defendant’s intoxication to his driving, and there was sufficient corroboration to his statement that he was driving the vehicle.
    • Scillitani v. State, 343 S.W.3d 914 (Tex.App.-Houston [14 Dist.] 2011).
      • This involved officer coming upon defendant’s vehicle in a ditch off the road. Court of Appeals originally found an insufficient temporal link. Court of Criminal Appeals reversed and remanded in light of Kuciemba. On remand Court of Appeals found evidence was sufficient to show that defendant was intoxicated while driving, as required to support conviction for driving while intoxicated (DWI); defendant was involved in single car accident where he left road and struck fence pole, there were no skid marks on road to indicate that defendant had applied brake, defendant told trooper who responded to dispatch call of accident that he was driver, trooper noticed alcohol on defendant’s breath, defendant exhibited numerous clues of intoxication during field sobriety tests, and preliminary breath samples taken within two hours showed defendant’s breath alcohol level to be .135 and .133.
    • Warren v. State, 377 S.W.3d 9 (Tex.App.-Houston [1 Dist.] 2011, pdr ref’d).
      • Officer comes upon defendant’s vehicle in a ditch with defendant standing outside the vehicle. Challenges the sufficiency of the evidence to say he was intoxicated at the time he was driving. In holding evidence was sufficient, Court of Appeals focused on the following:
        1. Defendant drove his car into a ditch and was found intoxicated at the scene of the accident.
        2. Deputy testified that the hood of defendant’s truck was still warm, indicating to him that the truck had been recently driven.
        3. He also testified that the inside of the cab was warmer than the outside temperature of 60 degrees Fahrenheit.
        4. Deputy found an open container of alcohol in the cab of the truck and saw that some of the drink had spilled onto the passenger’s seat which he assumed happened at time of accident.
    • Hughes v. State, 325 S.W.3d 257 (Tex.App.-Eastland 2010, no pet.).
      • Officer was dispatched to one-car accident and encountered defendant walking alongside highway. He stopped and spoke to defendant who stated he had gotten vehicle stuck in ditch. Scene evidence corroborated vehicle was wrecked and inoperable and officer noted signs of intoxication on the defendant. Issue raised was that even though he was intoxicated when officer made contact with him, there was no evidence he was intoxicated earlier when accident occurred. In finding there was sufficient circumstantial evidence presented that defendant was intoxicated when he was driving, the Court held that proof of the precise time of accident is not required and that being intoxicated at the scene of a traffic accident in which the defendant was the driver is some circumstantial evidence that the defendant’s intoxication caused the accident, and the inference of causation is even stronger when the accident is a one-car collision with an inanimate object.
    • Kuciemba v. State, 310 S.W.3d 460 (Tex.Crim.App. 2010).
      • Defendant was found behind the steering wheel, injured and intoxicated, at the scene of a one-car rollover accident, with a blood-alcohol level of more than twice the legal limit. The Court of Appeals found the evidence to be insufficient to show that appellant was intoxicated at the time that the accident occurred as there was no evidence of anyone who saw defendant driving on the road or evidence of when the accident occurred. The Court of Criminal Appeals reversed finding, among other things, that being intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor’s intoxication caused the accident, and the inference of causation is even stronger when the accident is a one-car collision with an inanimate object. They focused on the driver’s failure to brake, his high BAC, and the fact that he was still bleeding as supporting an inference that the accident was recent, and he had been intoxicated for quite a while.
    • Stoutner v. State, 36 S.W.3d 716 (Tex.App.-Houston [1st Dist.] 2001, pet. ref’d).
      • The Defendant tried to argue that McCafferty was controlling. The Court distinguished this case from McCafferty as follows: In this case, there were fifteen to twenty minutes that passed from the time of crash to time officer arrived. Blood sample was taken twenty minutes after the arrest (50 minutes after officer’s arrival). Extrapolation evidence was offered. No alcoholic beverage containers were noticed near defendant. The testimony that defendant did not appear to be intoxicated to another officer who observed him upon arriving at the scene was not dis-positive as the officer was a car length away from the defendant at the time and was not focused on the defendant. State was not required to exclude every other reasonable hypothesis except defendant’s guilt as that standard was discarded by Geesa. Evidence found to be sufficient that defendant was intoxicated while operating a motor vehicle on June 11, 2008.