Don Quiroz v. State

Opinion issued June 25, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00078-CR
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DON QUIROZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
McLennan County, Texas
Trial Court Case No. 20110260CR2
MEMORANDUM OPINION
A jury convicted Don Quiroz of driving while intoxicated. 1 The trial court
assessed punishment at 120 days’ confinement and a $500 fine. In a single issue,
1
TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2012).
Quiroz contends that the evidence is legally insufficient to prove that he operated a
vehicle at a time when he was intoxicated. We affirm the trial court’s judgment. 2
Background
On the evening of June 26, 2010, Quiroz was traveling on Interstate 35 to
visit his sister when a tire on his pickup truck blew out. He took the first exit,
stopped to examine the tire, decided to drive a short distance farther, and
eventually stopped on the roadside near a dollar store in Bruceville-Eddy. Quiroz
testified that he had a six-pack of beer and a small bottle of tequila with him before
he arrived at the store.
Officer D. Edwards, of the Bruceville-Eddy Police Department at the time of
Quiroz’s arrest, saw Quiroz’s truck parked on the road at the dollar store location
at approximately 10:30 p.m. Edwards testified that he was watching “that
intersection” on that night, and had been through the intersection a few minutes
earlier and “there was no vehicle there.” Approximately three minutes later, after
he circled the block and went through the intersection again, Quiroz’s truck was
there. Edwards did not see Quiroz arrive at that location. He noticed the truck
because of the time; “we try to check out those vehicles that hour of night, just to
2
Originally appealed to the Tenth Court of Appeals, this case was transferred to this
Court by order of the Texas Supreme Court pursuant to its docket equalization
efforts. See Misc. Docket No. 12-9008 (Tex. Jan. 10, 2012); see also TEX. GOV’T
CODE ANN. § 73.001 (West 2013).
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make sure that things are okay and everybody is safe.” When Edwards first saw the
truck, Quiroz was sitting in the driver’s seat with the driver’s side door closed.
Edwards testified that the keys were in the ignition, but the truck was not running.3
The passenger-side front tire was “totally disintegrated,” and the rim was dented as
if Quiroz had been driving on it for several miles.
Edwards started recording Quiroz with his in-dash camera when Quiroz got
out of the truck. The video was admitted into evidence, without objection, and
played before the jury. As Edwards testified, the video showed Quiroz getting out
of the truck, walking to the tailgate, and standing there. Edwards described Quiroz
as “a little droggy.” His “eyes were already bloodshot, he was already sweating,
and the alcohol was coming all about him.” Edward testified, and the video shows,
that Quiroz carried a bottle that he had retrieved from the truck. Edwards described
the bottle as “a whiskey bottle,” and testified that a little under half the alcohol
remained in the bottle. Edwards also observed Quiroz with a beer can in his hand.
When Edwards first asked Quiroz what he had to drink, Quiroz answered
that he had nothing to drink. The second time Edwards asked the question, Quiroz
answered that he had been parked there for twenty minutes. Quiroz later said that
he had been parked there for three hours to three-and-a-half hours. When Edwards
stated “No, you haven’t been there for that long,” Quiroz answered “No, I
3
On cross-examination, Edwards testified that his written report did not state that
the keys were in the ignition.
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haven’t.” Edwards also testified that, at one point in the video, Quiroz stated “that
he had been sitting on the side of the road about a half mile down [from the dollar
store] for the past three hours.”
Quiroz’s sister arrived at the dollar store at approximately the same time that
Edwards approached Quiroz. Edwards testified that she said that Quiroz was lost,
was on the highway, and was stranded in Mother Neff Park, and that the video
showed Quiroz stating that his sister called him and told him to meet her at the
dollar store location. Edwards also testified that Quiroz’s sister stated on the video
that Quiroz “was at Mother Neff Park,” which other evidence indicated “was way
the other direction away from” the dollar store location.
Edwards testified he and a second officer searched the truck and the
surrounding area. They found an unopened beer can with the plastic six-pack ring
around it, the open can that Quiroz had been holding, the bottle that he took from
the truck, and diabetes medication. They did not find any empty beer cans.
According to Edwards, Quiroz appeared to be intoxicated based on the way
he exited his vehicle, “the alcohol that was coming off of his breath and off of his
person,” and his aggressive manner. Edwards stated, based on his training and
experience, that it would take more than a minute or two for person to show signs
of intoxication after consuming alcohol. Quiroz refused to perform field sobriety
tests. Quiroz testified that he told Edwards, “you can give me a Breathalyzer,” but
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“you can see also how much I’ve been consuming here.” A blood sample taken
that night showed that Quiroz’s blood alcohol concentration was .21.
Edwards further testified that, in his opinion, Quiroz was operating his
vehicle shortly before he got out of his truck. Edwards based his opinion on seeing
Quiroz in the driver’s seat with the keys in the vehicle. Edwards, however, did not
see Quiroz operate the truck.
Quiroz testified that he was at the dollar store for a long period of time
before Edwards arrived. According to Quiroz, his tire blew out on Interstate 35 at
approximately 8:00 p.m. He then took the first exit and stopped at the side of the
road to examine the tire. The tread was completely off the tire, but it still had air.
He decided to drive farther and, when “the air just came out of the tire,” he parked
at “the first right-hand side of the road.” He disagreed with Edwards’s testimony
that he was only at the dollar store location for two to three minutes. He explained:
No, that’s—that’s very not true. The first thing when I—when I
stopped, I got out of the driver’s seat, and I went to the back of my
truck. And I started searching out for a tire or a jack, which in both
respects I couldn’t find neither one. There was a tire in there, but you
could plainly see it wasn’t to that vehicle. . . . But anyway, I didn’t
have a tire or a jack. So I got out of the vehicle, a little upset, and just
sat myself down and popped me open a beer.
He also testified that the bottle shown in the video and from which he drank was
not a whiskey bottle but was a Jose Cuervo tequila bottle and that he consumed the
alcohol missing from that bottle “in Bruceville-Eddy at that spot.”
5
He testified that he sat on the truck tailgate, listening to music and waiting
for his sister at the dollar store location. During that time, he drank four sixteen-
ounce beers and whatever was missing from the tequila bottle. He did not start,
move, or operate his truck after he started drinking, and he had not had anything to
drink before arriving at the dollar store. He further testified that the keys were in
the truck bed and not in the ignition, and that the door to the vehicle was open
when Edwards arrived. According to Quiroz, he went to the front of the truck only
to change a CD and had rigged the radio to work without the keys in the ignition.
Quiroz also testified that immediately after the blowout, he called his sister
so she could come assist him and that she needed directions. Quiroz’s sister
testified that, when he first called about 8:40 p.m., he was in front of a dollar store
and that they spoke several times that evening because she did not know the area.
On cross-examination, she conceded that she could not see where Quiroz was
when they talked on the phone and that he could have been up the road from the
dollar store and driven from that location to meet her at the dollar store.
Sufficiency of the Evidence
In a single issue, Quiroz contends that the evidence is legally insufficient to
support the jury’s verdict that he was driving while intoxicated. A person commits
the offense of driving while intoxicated if the person (1) was intoxicated (2) while
operating a motor vehicle (3) in a public place. See TEX. PENAL CODE ANN.
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§ 49.04(a) (West Supp. 2012). Quiroz does not contest that he was intoxicated or in
a public place when arrested. He asserts that the State failed to show that he
operated a motor vehicle while intoxicated and failed to link his operation of the
vehicle to a time when he was intoxicated. We disagree.
A. Standard of Review
Under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307,
318–19, 99 S. Ct. 2781, 2789 (1979), evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
offense was proven beyond a reasonable doubt. See Jackson v. State, No. 10-12-
00285-CR, 2013 WL 563323, at *3 (Tex. App.—Waco Feb. 14, 2013, no pet.)
(mem. op.) (setting out standard for sufficiency-of-evidence review under Jackson
v. Virginia). This standard gives full play to the responsibility of the factfinder to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. 99 S. Ct. at
2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see also
Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008) (stating that jury is
sole judge of credibility of witnesses and weight to give their testimony). An
appellate court presumes that the factfinder resolved any conflicts in the evidence
in favor of the verdict and defers to that resolution, provided the resolution is
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rational. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; see Clayton, 235 S.W.3d at
778 (stating that reviewing court “presume[s] that the factfinder resolved the
conflicts in favor of the prosecution and therefore defer[s] to that determination.”).
In reviewing the record, direct evidence and circumstantial evidence are
treated equally; circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and alone can be sufficient to establish guilt.
Clayton, 235 S.W.3d at 778. In determining the sufficiency of the evidence, a
reviewing court examines “whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict.” Id. (quoting Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007)). Finally, the “cumulative force” of all the
circumstantial evidence can be sufficient for a jury to find the accused guilty
beyond a reasonable doubt, even if every fact does not “point directly and
independently to the guilt of the accused.” Powell v. State, 194 S.W.3d 503, 507
(Tex. Crim. App. 2006).
B. Quiroz’s operation of a motor vehicle while intoxicated
The State was required to show that Quiroz was intoxicated at the time he
operated a vehicle. The Court of Criminal Appeals has concluded that “operation
does not necessarily involve driving” and that “[t]o find operation . . . the totality
of the circumstances must demonstrate that the defendant took action to affect the
8
functioning of his vehicle in a manner that would enable the vehicle’s use.” Denton
v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995); see Hearne v. State, 80
S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding that
reviewing court looks at totality of circumstances surrounding entire incident in
question to ascertain whether operation occurred); Bailey v. State, No. 10-06-
00297-CR, 2008 WL 2687094, at *2 (Tex. App.—Waco July 9, 2008, no pet.)
(mem. op., not designated for publication) (stating that “we must use a totality of
the circumstances approach to determine whether [defendant] was operating her
motor vehicle while intoxicated”). Because “operating a motor vehicle” is broadly
defined, any action that is more than mere preparation toward operating the vehicle
is “an ‘action to affect the functioning of [the] vehicle in a manner that would
enable the vehicle’s use.’” Strong v. State, 87 S.W.3d 206, 216 (Tex. App.—Dallas
2002, pet. ref’d), abrogated on other grounds, Pfeiffer v. State, 363 S.W.3d 594
(Tex. Crim. App. 2012) (quoting Barton v. State, 882 S.W.2d 456, 459 (Tex.
App.—Dallas 1994, no pet.)).
According to Quiroz, the only evidence of operating a vehicle at the time of
the stop—i.e., the time when he was intoxicated—were the keys in the ignition,
and this evidence shows only “mere preparation” to operate his truck. He also
asserts that the only evidence of the time of alcohol consumption was his testimony
that he drank the beer and tequila “while laid up on the side of the road.” The State,
9
therefore, failed to show that, during the time he was operating the truck—before
arriving at the dollar store location—he was intoxicated.
In order to support a finding that a defendant was intoxicated while
operating a motor vehicle, there must be a temporal link between the defendant’s
intoxication and his driving. See Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.
Crim. App. 2010); 4 Warren v. State, 377 S.W.3d 9, 14 (Tex. App.—Houston [1st
Dist.] 2011, pet. ref’d). Such a conviction “can be supported solely by
circumstantial evidence.” Kuciemba, 310 S.W.3d at 462 (citing Guevara v. State,
152 S.W.3d 45, 49 (Tex. Crim. App. 2004)); see Warren, 377 S.W.3d at 14 (stating
that finding can be supported by direct or circumstantial evidence). “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor.”
Guevara, 152 S.W.3d at 49.
Quiroz testified that he drank four sixteen-ounce beers and some tequila that
evening and admitted that he was intoxicated. Quiroz also admitted to driving his
vehicle to the location where Officer Edwards found him in his truck. Edwards’s
4
Quiroz cites Johnson v. State, 517 S.W.2d 536 (Tex. Crim. App. 1975), to support
the necessity of a link between operation of a vehicle and intoxication. He
suggests that proof of that link “cannot be supplied by inference and supposition,”
citing Sharp v. State, 296 S.W.2d 932, 933 (Tex. Crim. App. 1957), and Gamboa
v. State, 481 S.W.2d 423, 426 (Tex. Crim. App. 1972). The Kuciemba Court,
however, emphasized that circumstantial evidence may establish this necessary
link. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (citing
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)); see Scillitani v.
State, 343 S.W.3d 914, 918 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
(concluding that Kuciemba court impliedly overruled Johnson because analysis in
Kuciemba was contrary to analysis in Johnson).
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testimony and the video support a jury finding of a temporal link between Quiroz’s
intoxication and his driving. Edwards found Quiroz’s vehicle stopped at the side of
the road at approximately 10:30 p.m. and testified that Quiroz was sitting in the
driver’s seat with the keys in the ignition. According to Edwards’s testimony, the
vehicle had been at that location for no more than three minutes. At the time of the
arrest, Quiroz gave several different answers when asked how long he had been at
the dollar store location. At one point, he agreed with Edwards that he had not been
there for three hours and also stated that he had been sitting about a half mile down
the road for three hours. The evidence also indicates that Quiroz’s sister could not
find his location, and had called Quiroz and told him to meet her.
Additionally, Officer Edwards testified that he observed Quiroz leave the
truck with a bottle that he had retrieved from the truck. See Warren, 377 S.W.3d at
15 (stating that presence of open container of alcohol in vehicle driven by
defendant is some evidence he was drinking while driving); see also Kimball v.
State, 24 S.W.3d 555, 559–60 (Tex. App.—Waco 2000, no pet.) (considering
presence of open container of beer in determining whether defendant was
intoxicated while driving). When Edwards first approached Quiroz, his eyes were
bloodshot “and the alcohol was coming all about him.” Finally, the blood sample
taken that night showed that Quiroz’s blood alcohol concentration was .21. See
Kuciemba, 310 S.W.3d at 463 (stating that blood alcohol level of more than twice
11
legal limit of .08 supported inference that defendant “had been intoxicated for quite
a while”).
The evidence, viewed in the light most favorable to the verdict, is sufficient
to support the jury finding that Quiroz was driving while intoxicated. First, and
most importantly, the jury could have accepted Officer Edwards’s testimony that
Quiroz arrived on the scene no more than three minutes before Edwards arrived.
Because it was undisputed that Quiroz was intoxicated at the time, it would be
reasonable to conclude that he had been intoxicated three minutes earlier when he
drove to the dollar store. Second, the jury could have resolved the conflicts in the
testimony and reasonably concluded that the following series of events occurred
that night: Quiroz pulled over to the side of the road about a half-mile from the
dollar store around 8:40 p.m. when he called his sister; he remained there drinking
while his sister drove to the area and tried to locate his vehicle; he then drove to the
dollar store around 10:30 p.m. to make it easier for her to locate him and had been
at the store for only a few minutes before Edwards arrived. The jury may have
reasonably inferred that Quiroz was intoxicated when he last operated his truck to
drive it the last half mile to the dollar store. Viewing the evidence in the light most
favorable to the verdict, we conclude that the evidence is legally sufficient to
support the conviction.
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Conclusion
Having overruled Quiroz’s issue on appeal, we affirm the judgment of the
trial court.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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