Opinion filed June 30, 2011




                                             In The


   Eleventh Court of Appeals
                                           __________

                                      No. 11-09-00279-CR
                                          __________

                      JOSEPH CHESTER POLLEY, Appellant

                                                V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 385th District Court

                                      Midland County, Texas

                                  Trial Court Cause No. CR35861


                              MEMORANDUM OPINION

       Joseph Chester Polley entered a plea of guilty to the offense of felony driving while
intoxicated and a plea of true to an enhancement allegation. The trial court assessed punishment
at confinement for eight years. We affirm.
       In his sole issue on appeal, appellant contends that the trial court erred in finding that a
Kansas conviction for driving under the influence could be used as a prior conviction to enhance
this offense to a third-degree felony. See TEX. PENAL CODE ANN. § 49.09(b)(2), (c)(1)(F)
(Vernon 2011). In Texas, 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 (Vernon 2011).
Section 49.09(b)(2) provides that the offense of DWI is a third-degree felony if it is shown that
the person has two prior convictions1 “relating to the operating of a motor vehicle while
intoxicated.”    Section 49.09(c)(1)(F) provides that an out-of-state conviction is an offense
relating to the operating of a motor vehicle while intoxicated if it is for “an offense under the
laws of another state that prohibit the operation of a motor vehicle while intoxicated.”
       Appellant filed a motion to quash the indictment, contending that the use of an out-of-
state conviction did not meet the requirements of Section 49.09(c)(1)(F) because Kansas law
permits conviction on grounds other than the operation of a motor vehicle. During a pretrial
hearing on the motion to quash, the trial court ruled that the Kansas conviction could be used as a
jurisdictional enhancement in the indictment.                    The sufficiency of an indictment presents a
question of law; therefore, we must review the trial court’s ruling on the motion to quash under a
de novo standard of review. Smith v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010).
       The record shows that a 1999 Kansas conviction for driving under the influence was used
as one of the two jurisdictional enhancements in the indictment. The Kansas law under which
appellant was convicted provided: “No person shall operate or attempt to operate any vehicle
within this state” while the alcohol concentration in the person’s blood or breath is .08 or more or
while the person is under the influence of alcohol or drugs or a combination thereof to a degree
that renders the person incapable of safely driving.                       KAN. STAT. ANN. § 8-1567 (1994).
Appellant’s argument centers on Kansas’s inclusion of the words “attempt to operate.”
Appellant asserts that Texas’s use of the words “operating” and “the operation of” do not
encompass an “attempt” to operate. We disagree.
       Under the Kansas statute, “operate” means “drive.” State v. Kendall, 58 P.3d 660, 664
(Kan. 2002). In Texas, the term “operate” is not defined in the DWI statutes, but it has been
construed broadly to effectively include attempted DWI. Strong v. State, 87 S.W.3d 206, 215-16
(Tex. App.—Dallas 2002, pet. ref’d). In Dornbusch v. State, 262 S.W.3d 432 (Tex. App.—
Fort Worth 2008, no pet.), and Barton v. State, 882 S.W.2d 456 (Tex. App.—Dallas 1994, no
pet.), both courts upheld a DWI conviction where the defendant was not driving the vehicle but
was found asleep or passed out in the driver’s seat with the engine running and, thus, had taken

       1
        In addition to the Kansas conviction, the indictment alleged that appellant had previously been convicted in Texas of
DWI.


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action to affect the functioning of the vehicle in a manner that would enable the vehicle’s use.
The Texas Court of Criminal Appeals, relying on the definition in Barton, held that “operation
does not necessarily involve driving” and that the term “operate” means “[to take] action to
affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” Denton v.
State, 911 S.W.2d 388, 389-90 (Tex. Crim. App. 1995).
         Even though the language used in the Kansas statute under which appellant was
convicted differs from the language of the Texas DWI statutes, the statutes in both states prohibit
the operation (using the Texas definition) of a motor vehicle while intoxicated. Therefore, the
trial court did not err in allowing appellant’s Kansas conviction to be included in the indictment
pursuant to Section 49.09(c)(1)(F) as one of two prior convictions used to increase the current
offense to a felony. We overrule appellant’s issue.
         The judgment of the trial court is affirmed.




                                                                                  JIM R. WRIGHT
                                                                                  CHIEF JUSTICE


June 30, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel2 consists of: Wright, C.J.,
McCall, J., and Hill, J.3




         2
           Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.

         3
             John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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