                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-297-CR


RANDALL DORNBUSCH                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

      FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY

                                   ------------

                                  OPINION

                                   ------------

I.    Introduction

      Appellant Randall Dornbusch appeals his conviction for misdemeanor

driving while intoxicated. Appellant waived his right to a jury trial. The trial

court found Appellant guilty and sentenced him to 120 days’ confinement,

probated the sentence for fifteen months, and assessed a $300.00 fine. In

three points, Appellant challenges the legal and factual sufficiency of the

evidence to support his conviction, and he challenges the constitutionality of
section 49.04 of the Texas Penal Code. See T EX. P ENAL C ODE A NN. § 49.04

(Vernon 2003). We affirm.

II.   Evidence

      The parties presented the following evidence at trial. Highland Village

police sergeant Sheri Morrison testified that she was checking on a business

around 12:30 a.m. on the morning of December 2, 2006.             Morrison saw

Appellant’s vehicle in the parking lot of a nearby Applebee’s restaurant.

Morrison testified that the vehicle caught her attention because its headlights

were on, it was in the back of the parking lot, and it was “parked oddly.”

Morrison did not immediately investigate Appellant’s vehicle because she was

still engaged in checking on the nearby business. Approximately forty-five

minutes later, Morrison again observed Appellant’s vehicle in the same spot

with the headlights still on. Morrison called for backup. Highland Village police

officer Alicia Bautista Gonzales responded to the call.

      Gonzales testified that when she arrived, Appellant’s vehicle was in the

back of the Applebee’s parking lot, and its lights were on.       Gonzales and

Morrison approached Appellant’s vehicle and noticed the engine was running.

Morrison testified that she could tell the engine was running because it was

cold outside and she could see the exhaust, but she could not see any




                                       2
indication that the brake lights were activated. Both Gonzales and Morrison

testified that loud music was emanating from Appellant’s vehicle.

      Gonzales said that as she approached she could see Appellant “in the

driver’s seat hunched over the steering wheel.” Both officers testified that it

took multiple efforts of tapping on the window and speaking to Appellant for

him to arouse from his hunched position. Gonzales noticed a smell of alcohol

in the vehicle. Morrison testified that when she asked Appellant if he had been

drinking, he initially denied that he had been, but later admitted to the officers

that he had been drinking alcohol in Applebee’s prior to getting into his vehicle.

      Gonzales testified that Appellant’s eyes were bloodshot, his speech was

slurred, and he appeared disoriented.       She asked Appellant if he had “any

medical problems.” Appellant denied any medical problems. Gonzales admitted

that she informed Appellant that she could be looking at his situation from

either a medical or criminal aspect. Gonzales testified that when Appellant

asked what criminal aspect she was investigating, Gonzales responded “public

intoxication.” Gonzales then asked Appellant to exit his vehicle.

      Gonzales performed a number of field-sobriety tests including the

horizontal gaze nystagmus test, the one-legged stand, and the walk and turn.

She testified that she found all six clues when performing the horizontal gaze

nystagmus test. According to Gonzales, Appellant was unable to complete the

                                        3
walk and turn or the one-legged stand, however, Gonzales testified that she did

observe four clues during the walk and turn test.       Gonzales said that she

discontinued these tests before their completion because Appellant had fallen

down and she feared he might hurt himself. The officers arrested Appellant.

      Morrison could not recall who turned off Appellant’s vehicle. But she

testified that at some point in the encounter, she tried to remove the keys from

the ignition but could not. Morrison said the officers asked Appellant how to

remove the keys and he responded that the vehicle had to be in park in order

for the keys to be removed from the ignition. Concerning whether Appellant’s

car was in park, the trial transcript contains this testimony by Morrison:

             [Morrison]: . . . And [Appellant] said as long as the vehicle
      is in park, that the key should come right out. So it was at that
      point that it was a -- you know, it was an automatic. And at that
      point I pressed it in and pushed it forward and realized that the car
      had been in drive and that that’s why the keys wouldn’t come out.
      So as soon as I slipped it into park, the keys came on out.

            [State]: Okay. So the car was actually in drive?

            [Morrison]: Yes, ma’am.

            [State]: Do you know what was preventing -- I mean, from
      your observation, do you know what was preventing the car from
      actually rolling or driving?

            [Morrison]: It was touching the curb in the parking place.

            [State]: Okay. The wheels were up against the curb?


                                       4
            [Morrison]: Uh-huh.

            [State]: Okay. But it was in drive?

            [Morrison]: It was not parked, no. I couldn’t tell you if it was
      slipped up on the edge of drive or edge of neutral, but it was not
      in park.

      During cross-examination, Morrison further clarified her testimony

concerning whether Appellant’s vehicle was in park or drive:

            [Appellant’s attorney]: Now, it’s your testimony to [the trial
      court] that the car was in drive the entire time?

            [Morrison]: My testimony is that the car was not in park. I
      couldn’t tell you. When I went to move the gear shift, I didn’t look
      down and see, you know, if it was sitting on D, if it was sitting on
      N, or if it was sitting on P. Obviously I thought the car was in
      park, or I wouldn’t have been messing with somebody that was,
      you know, coming out of it.

            [Appellant’s attorney]: Right.

            [Morrison]: When I moved the gear shift, it moved.            It
      physically moved in my hand to move forward.

            ....

           [Morrison]: I mean, I couldn’t tell you if it was [in drive] or
      was not. I knew it wasn’t in park. I knew it moved. It moved a
      good amount in my hand.

      Morrison testified that after placing Appellant under arrest, she searched

his vehicle. She found a bottle of vodka that had not been opened. Morrison

also found to-go containers, but testified she could not identify what restaurant


                                        5
they were from. She also found a cup containing a ”purple or dark liquid” that

smelled of alcohol.

      Appellant testified to his version of the events. He testified that Friday,

December 1, 2006, at roughly 10:30 p.m., he had gone to Applebee’s to meet

his girlfriend for dinner.   His girlfriend never showed.     He said that while

waiting, he consumed “a few drinks” and ordered food. He eventually got the

food to go and took it to his car.       Appellant testified that at that point,

sometime near midnight, he reasoned that he had “a couple too many” alcoholic

beverages while waiting “and didn’t feel that [he] could make the drive home.”

Appellant stated that his plan was “to sit there and I guess wait until I felt like

I could drive home.” He also testified that he had not consumed any alcohol

prior to being at Applebee’s.

      Appellant further testified that he turned the car’s engine on for warmth

because it was cold outside. According to Appellant, his vehicle’s lights were

on because his vehicle has a feature where the lights come on automatically

when it is dark outside. When questioned about what was required to remove

the keys from the ignition, Appellant testified that the car had to be in park and

a foot had to be on the brake. When questioned about the cup of dark liquid,

Appellant testified, “I don’t know what was in the cup. And if I did [consume

any alcohol once inside the vehicle after leaving Applebee’s], it was whatever

                                        6
was in the cup, if it was a beverage.” When asked by the State whether he

had the music loud in an effort to stay awake, he replied, “No.” When asked

why he didn’t turn off the lights after sitting there for so long, Appellant replied

“I just didn’t think about it, to be honest with you.”

       The sole issue contested by Appellant at trial was whether he had

“operated” the vehicle. In finding Appellant guilty, the trial court stated:

       [I]f I take the State’s assumption that he had put the car in gear, I
       could say, oh, yippee, the facts are easy, you know, and I can find
       him guilty and go home . . . . But based on my looking at the law
       and [Appellant] was behind the wheel, the car was running -- I do
       not care about the lights, I don’t care about the radio. The
       question, was the vehicle running. I’m finding his foot was not on
       the brake, his foot was not on the gas, and the car never moved
       from that spot. But based on what I’ve looked at under the case
       law, I’m finding [Appellant] guilty of the charge based on that fact
       scenario.

III.   Discussion

       A.      Legal and Factual Sufficiency

       In his first two points, Appellant complains that the evidence is legally

and factually insufficient to prove beyond a reasonable doubt that he operated

his vehicle.

               1.   Standards of Review

       In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order


                                         7
to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      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 fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

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.

            2.    Application of Law to Facts

      “A person commits an offense if the person is intoxicated while operating

a motor vehicle in a public place.”    T EX. P ENAL C ODE A NN. § 49.04(a).   In

                                       8
challenging the legal and factual sufficiency of the evidence to support his

conviction, Appellant does not dispute that he was intoxicated at the time the

officers found him in his car. Rather, Appellant argues that, from the totality

of the circumstances, the evidence is not legally or factually sufficient to prove

that he “operated” his vehicle while he was intoxicated.

      There is no statutory definition of the term “operate.” Barton v. State,

882 S.W.2d 456, 459 (Tex. App.—Dallas 1994, no pet.). However, 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.”

Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). In reaching its

holding, the court repeated the reasoning enunciated in Barton:

      W e 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.

Id. at 389 (emphasis added) (quoting Barton, 882 S.W.2d at 459); 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

circumstances surrounding the entire incident in question to ascertain whether

                                        9
the trial court properly determined if operation had occurred).      Under this

standard, “operating” a motor vehicle is interpreted very broadly. Barton, 882

S.W.2d at 459; see Strong v. State, 87 S.W.3d 206, 215 (Tex. App.— Dallas

2002, pet. ref’d). Because “operating a motor vehicle” is defined so broadly,

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.” Strong, 87 S.W.3d at 216 (citing

Barton, 882 S.W.2d at 459). Any action would either not be more than mere

preparation or it would fall within the broad definition of “operating a motor

vehicle.” Strong, 87 S.W.3d at 216 .

      Numerous cases have upheld DWI arrests or convictions under the totality

of circumstances test even though the person “operating” the motor vehicle

was initially found to be asleep or unconscious. For instance, persons asleep

or unconscious were found to be “operating” their motor vehicle when the

vehicle was stopped by the roadway with its right front tire against the curb

and engine running, gearshift in “Drive,” and lights on, Freeman v. State, 69

S.W.3d 374, 375–76 (Tex. App.—Dallas 2002, no pet.); stopped in a moving

lane of traffic with the engine running and the vehicle’s owner in the driver’s

seat, Hearne, 80 S.W.3d at 680; and stopped on a roadway with the engine

running, lights on, and the vehicle’s operator sitting behind the steering wheel,

                                       10
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).

      Furthermore, prior to the adoption of the totality of circumstances test,

persons who were asleep or unconscious were found to be “operating” their

motor vehicle when the vehicle was stopped in the middle of the road with the

engine running, gearshift in “Drive,” and operator slumped behind the steering

wheel with his foot on the brake, Ray v. State, 816 S.W.2d 97, 98 (Tex.

App.—Dallas 1991, no writ); stopped in the roadway with the engine running,

lights on, and the vehicle’s owner sitting behind the steering wheel, Pope v.

State, 802 S.W.2d 418, 420 (Tex. App.—Austin 1991, no writ); stopped in the

roadway facing oncoming traffic with the engine running, lights on, and

operator asleep in the driver’s seat with his foot on the brake, Hernandez v.

State, 773 S.W.2d 761, 762 (Tex. App.—San Antonio 1989, no writ); and

found half in a ditch and half on a farm-to-market road with the operator alone

behind the steering wheel with both feet on the floorboard beneath the steering

wheel, Reynolds v. State, 744 S.W.2d 156, 158–59 (Tex. App.—Amarillo

1987, writ ref’d).

      Appellant argues that these cases are distinguishable from his case

because the facts of each of these cases indicate recent operation of a vehicle




                                      11
on a roadway at some point.1 However, a parking lot at a public place is not

legally different than a roadway for purposes of a DWI arrest or conviction, and

Appellant does not argue otherwise. See, e.g., Shaub v. State, 99 S.W.3d

253, 256 (Tex. App.—Fort Worth 2003, no pet.).

      Appellant further argues that he is being punished for his decision to

“sleep off” his intoxication rather than driving home drunk and that the only

reasonable inference to be drawn from the evidence is that he used his vehicle

to keep warm and not that he intended or actually did operate his vehicle. This

court agrees that it is better to sleep off intoxication rather than engage in the

pervasive societal problem of drunk driving. See Hollin v. State, 227 S.W.3d

117, 122 (Tex. App.—Houston [1st Dist.] 2006) (noting that DWI laws “have

as their goals both prevention, punishment, and the removal of drunk drivers

from the streets by incarceration.”) But whether Appellant was merely keeping

warm or “operating” his vehicle was a fact question for the trial court to

resolve, and the trial court resolved it against him.


      1
       … Appellant also argues that this case is similar to a pair of cases from
the Supreme Court of New Jersey and that we should reverse Appellant’s
conviction by applying the test found in those cases to the facts of this case.
See State v. Sweeney, 192 A.2d 573, 573 (N.J. 1963); State v. Daly, 313
A.2d 194, 195 (N.J. 1973). However, these cases are inapplicable to this case
because New Jersey does not apply the totality of circumstances test that the
court of criminal appeals ascribes to; rather, New Jersey uses an “intent to
move or drive” test. Denton, 911 S.W.2d at 389; Daly, 313 A.2d at 195.

                                       12
         To ascertain whether the trial court’s resolution of this question was

supported by legally and factually sufficient evidence, we examine the totality

of circumstances to determine if Appellant took action to affect the functioning

of his vehicle that would enable the vehicle’s use. Denton, 911 S.W.2d at

389. In this case, all parties agree that Appellant’s vehicle was found in the

back of Applebee’s parking lot with the headlights on, the engine running, the

radio playing loudly, and Appellant sitting in the driver’s seat either asleep or

passed out. Further, there was testimony indicating that the vehicle was not

in park and that the only thing keeping the vehicle from moving was the curb. 2

We hold that the evidence, viewed in light most favorable to the verdict,

together with reasonable inferences therefrom, is legally sufficient to show that

Appellant operated his vehicle while intoxicated. We overrule Appellant’s first

point.

         Further, after viewing all the evidence in a neutral light, we hold that the

proof of guilt is not so obviously weak as to undermine confidence in the

verdict and is not greatly outweighed by contrary proof.           The evidence is




         2
       … Appellant states twice that the trial court made an explicit finding that
the vehicle was not in gear. However, as the State points out, the trial court
did not make a finding regarding whether Appellant’s car was in a specific gear.

                                          13
therefore factually sufficient to show that Appellant operated his vehicle while

intoxicated. We overrule Appellant’s second point.

      B.     Constitutionality of Section 49.04

      In his third point, Appellant challenges the facial validity of section 49.04

of the Texas Penal Code. See T EX. P ENAL C ODE A NN. § 49.04. The gist of

Appellant’s argument, as can be gleaned from both the title of his third point

and the analysis in his brief, is that the DWI statute’s provision of “operating”

exceeds the scope of its title, “Driving While Intoxicated.” 3 See id.

      Appellant may not challenge the sufficiency of the caption because the

Texas Constitution makes it unlawful for this court to declare the statute void

on the basis of an insufficient title. T EX. C ONST. art. III, § 35(c); see Baggett v.

State, 722 S.W.2d 700, 702 (Tex. Crim. App. 1987) (acknowledging that a


      3
        … Although Appellant cites federal cases involving constitutional issues
of overbreadth and vagueness, he fails to analyze these doctrines. Thus,
Appellant has waived these issues and we decline to address them. See
Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004,
pet. denied), cert. denied, 543 U.S. 1076 (2005) (holding that an issue on
appeal unsupported by argument presents nothing for the court to review); see
also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85
(Tex. 1994) (discussing “long-standing rule” that point may be waived due to
inadequate briefing); Tello v. Bank One, N.A., 218 S.W.3d 109, 116 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (“[W]e know of no authority
obligating us to become advocates for a particular litigant through performing
their research and developing their argument for them.”); Hall v. Stephenson,
919 S.W.2d 454, 467 (Tex. App.—Fort Worth 1996, writ denied) (holding that
an inadequately briefed point may be waived on appeal).

                                         14
court no longer has the power to declare an act of the legislature

unconstitutional due to the insufficiency of its caption). Therefore, we overrule

Appellant’s third point.

IV.   Conclusion

      Having overruled Appellant’s three points, we affirm the trial court's

judgment.




                                            ANNE GARDNER
                                            JUSTICE

PANEL B:    GARDNER, WALKER, and MCCOY, JJ.

MCCOY, J. filed a concurring opinion.

PUBLISH

DELIVERED: July 24, 2008




                                       15
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-297-CR


RANDALL DORNBUSCH                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

      FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY

                                   ------------

                         CONCURRING OPINION

                                   ------------

      The purpose of section 49.04 of the Texas Penal Code is articulated in

its title, “Driving While Intoxicated.” The phraseology of the statute, however,

utilizes the word “operating,” instead of “driving,” and is more expansive, but

in my view, still under the umbrella of the logical and laudable intent of the

statute—to protect people and property from vehicles driven by intoxicated

persons.
      Here, the vehicle had to be turned off by first placing the transmission in

park, which was accomplished by one of the officers on the scene.          Logic

therefore instructs that the car was in park when the key was first inserted by

the driver to start the car. Therefore, the car’s transmission was removed from

park by the driver to place it in the position found by the officer, and this

action, in my view, is what constituted “operating” the vehicle. Had the driver

simply wanted to enter his vehicle to warm up on a cold night, to sleep off his

intoxicated state, or to do both, which are actions to be taken without leaving

the parking lot, then there would have been no need to engage the

transmission. Hence, I believe his actions fell under the ambit of the statute,

and I concur with the majority’s resolution of Dornbusch’s first and second

points and agree with their resolution of his third point.




                                           BOB MCCOY
                                           JUSTICE

PUBLISH

DELIVERED: July 24, 2008




                                       2
