Victor Vasquez v. State ( 2005 )

NO. 07-04-0339-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 24, 2005
______________________________
VICTOR VASQUEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT OF HALE COUNTY;
NO. 2002C-948; HONORABLE BILL HOLLARS, JUDGE
_______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Victor Vasquez appeals his conviction for the offense of driving while
intoxicated. Appellant contends that the evidence was not legally sufficient to support his
conviction. We affirm.
During the early morning of October 27, 2002, Department of Public Safety Trooper
Jerry Johnson observed a pickup truck parked on the shoulder of Interstate 27 with its
lights off. During Johnson’s investigation, he discovered three individuals asleep in the
truck, including appellant who was asleep in the driver’s seat of the vehicle. Johnson
observed cans of beer in the vehicle and smelled a strong odor of alcohol. During
Johnson’s discussion with appellant, appellant stated that he had stopped and parked the
vehicle because he was not feeling right. After performing field sobriety tests, Johnson
arrested appellant for driving while intoxicated.
At trial, appellant stipulated that he was intoxicated at the time of Johnson’s
investigation. However, appellant testified that he had not driven the truck and that he
could, therefore, not be convicted for driving while intoxicated. The trial court found
appellant guilty of the offense of driving while intoxicated and sentenced him to 180 days
confinement in the Hale County Jail, a $500 fine, and suspension of his driver’s license for
90 days. From this conviction, appellant appeals.
We review legal sufficiency by viewing the evidence in the light most favorable to the
verdict to determine if any rational fact finder could have found the essential elements of
the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.
2000). The conviction will be sustained unless it is irrational or unsupported by more than
a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.
1988). The fact finder is the sole judge of the credibility of the witnesses and of the weight
to be afforded their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.
1994). Reconciliation of conflicts and contradictions in the evidence is within the fact
finder’s province and is usually conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96
(Tex.App.–El Paso 1996, pet. ref’d).
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To establish the offense of driving while intoxicated, the State must prove the
defendant was intoxicated while operating a motor vehicle in a public place. TEX . PEN .
CODE ANN . § 49.04(a) (Vernon 2003). The statute does not, however, define the term
“operate.” See Barton v. State, 882 S.W.2d 456, 459 (Tex.App.–Dallas 1994, no pet.).
Operation of a motor vehicle is found when the totality of the circumstances demonstrate
that the defendant took action to affect the functioning of a vehicle in a manner that would
enable the vehicle’s use. See Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App. 1995).
In the present case, appellant contends that he took no action that would affect the
truck in a manner that would enable its use. Appellant testified that he did not drive the
truck to the location of Johnson’s investigation. However, Johnson testified that appellant
said, at the time of Johnson’s investigation, that he stopped and parked the vehicle
because he was not feeling well. Appellant did not object to this testimony. As appellant’s
and Johnson’s testimony regarding whether appellant drove the vehicle to the location of
Johnson’s investigation is in conflict, and viewing the evidence in the light most favorable
to the verdict, we conclude that the fact finder could reasonably conclude and that more
than a mere modicum of evidence supports a finding that appellant was “operating” the
truck in a public place while intoxicated. See Moreno, 755 S.W.2d at 867. Thus, we hold
that the evidence is legally sufficient to sustain appellant’s conviction.
Accordingly, we affirm the judgment of the trial court.
Mackey K. Hancock
Do not publish. Justice
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