Ricky Alton Watson v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-429-CR
RICKY ALTON WATSON APPELLANT
V.
THE STATE OF TEXAS TEXAS
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FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Ricky Alton Watson appeals his conviction for driving while
intoxicated (DWI). Following a bench trial, the trial court found Watson guilty
and sentenced him to ninety days in jail probated for two years and assessed
a $500 fine. In a single point, Watson claims that the evidence is factually
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… See Tex. R. App. P. 47.4.
insufficient to support his conviction; specifically, Watson claims that the
evidence is factually insufficient to establish that he was driving the vehicle.
II. F ACTUAL B ACKGROUND
At 2:45 a.m. on April 18, 2007, a taxicab driver called police to report
erratic driving by a white SUV heading north on highway 121 in Grapevine.
Grapevine police officer Brent Hartsell responded to the dispatch to investigate
a possible driving while intoxicated by the driver of a white SUV northbound on
highway 121. When Officer Hartsell reached the area where the white SUV
had reportedly been seen, he saw a white SUV parked about ten to fifteen feet
off the shoulder of the highway in the grassy median. Officer Hartsell parked,
exited his vehicle, approached the SUV, and noticed that the SUV’s engine was
running and that its lights were on. Watson was “slunched over,” sitting in the
driver’s seat; no other persons were in the SUV. Officer Hartsell knocked on
the driver’s side window several times until Watson woke up. Watson then
unlocked the SUV’s doors and turned off the ignition.
Watson claimed that he was driving to Benbrook, but he was not traveling
in the direction of Benbrook. Officer Hartsell noticed that Watson’s eyes were
dilated and bloodshot. He noticed a moderate odor of alcohol on Watson’s
breath and decided to conduct field sobriety tests. Officer Hartsell conducted
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three field sobriety tests, and W atson failed all three. The officer arrested
Watson for DWI.
III. F ACTUAL S UFFICIENCY C HALLENGE TO “O PERATING” E LEMENT OF O FFENSE
A person commits the offense of DWI if he is intoxicated while operating
a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (Vernon
2003). Here, Watson claims the evidence is factually insufficient to show that
he was “operating” a motor vehicle. Watson does not dispute or challenge the
evidence that he was intoxicated at the time the officer found him in his car.
Rather, Watson argues that, from the totality of the circumstances, the
evidence was not factually sufficient to prove that he “operated” his vehicle
while he was intoxicated.
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the factfinder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the factfinder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23
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S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the judgment. Watson, 204 S.W.3d at 417.
W e recently addressed, in Dornbusch v. State, the exact contention
raised by Watson here. 262 S.W.3d 432, 436 (Tex. App.—Fort Worth 2008,
no pet.). In Dornbush we explained, “There is no statutory definition of the
term ‘operate.’” Id. We noted in Dornbusch that the court of criminal appeals
has held that, 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.” Id. (citing
Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995)). We
acknowledged that, according to the court of criminal appeals, “operating” did
not require a driver to either cause a vehicle to move or to not move; the court
of criminal appeals has 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. Purposely causing or
restraining actual movement is not the only definition of
“operating” a motor vehicle. In other words, we examine the
totality of the circumstances to determine if [the defendant]
exerted personal effort upon his vehicle . . . for its intended
purpose.
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Denton, 911 S.W.2d at 389 (emphasis added); see also Hearne v. State, 80
S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding that
a reviewing court is to look at the totality of the circumstances surrounding the
entire incident in question to ascertain whether the trial court properly
determined if operation had occurred). Under this standard, “operating” a
motor vehicle is interpreted very broadly. Dornbusch, 262 S.W.3d at 436;
Barton v. State, 882 S.W.2d 456, 459 (Tex. App.—Dallas 1994, no pet.); see
Strong v. State, 87 S.W.3d 206, 215 (Tex. App.—Dallas 2002, pet. ref’d).
Based on this broad definition of “operating a motor vehicle,” we held in
Dornbusch that any action that is more than mere preparation toward operating
the vehicle would necessarily be an “action to affect the functioning of [a]
vehicle in a manner that would enable the vehicle’s use.” Dornbusch, 262
S.W.3d at 436. Finally, in Dornbusch we reviewed the numerous cases
upholding DWI arrests or convictions under the totality of the circumstances
test even though the person “operating” the motor vehicle was initially found
to be asleep or unconscious. Id. at 436–37.
Our holding and analysis in Dornbusch is controlling here. Here, a taxicab
driver testified at trial that he observed a white SUV driving erratically on the
date in question in the vicinity where Watson’s SUV was found by Officer
Hartsell. The taxicab driver testified that he called the police. When Officer
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Hartsell arrived at the scene, he found Watson “slunched over” in the driver’s
seat of the SUV with the engine running. Viewing the totality of the
circumstances and all the evidence in a neutral light, we hold that the evidence
that Watson was “operating” a motor vehicle, specifically the white SUV, is not
so obviously weak as to undermine confidence in the verdict and is not greatly
outweighed by contrary proof. The evidence is therefore factually sufficient to
show that Watson operated his vehicle while intoxicated. See, e.g., id. at
436–38; Hearne, 80 S.W.3d at 680; Freeman v. State, 69 S.W.3d 374,
375–76 (Tex. App.—Dallas 2002, no pet.); State v. Savage, 905 S.W.2d 272,
273 (Tex. App.—San Antonio 1995), aff’d, 933 S.W.2d 497 (Tex. Crim. App.
1996). We therefore overrule Watson’s sole point.
IV. C ONCLUSION
Having overruled Watson’s sole point, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 23, 2008
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