                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00082-CR



            ARTHUR ROBISON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 16th District Court
                Denton County, Texas
             Trial Court No. F15 2041-16




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                    MEMORANDUM OPINION
        Arthur Robison appeals from a conviction of driving while intoxicated (DWI), third or

more, and the resulting sentence of three years’ incarceration.1 Robison contends that there was

insufficient evidence to support his conviction and that the trial court erred in its assessment of

court costs. For the reasons below, we affirm the judgment, as modified.

I.      Background

        Heather Brun, an officer with the Carrollton Police Department, testified that, on

January 28, 2015, she received a “suspicious person call” from dispatch. The 9-1-1 caller, Retha

Campos, reported that someone had knocked on her door around midnight and asked if he could

have some computer equipment at the edge of her yard. Campos also said that the individual had

been looking around Campos’ yard with a flashlight. Campos further reported that the individual

got into a “silver pickup, double cab” and that the truck had “last [been] seen heading towards

Josey [Lane].” Campos described the individual as a white male in his late twenties.

        Brun testified that she arrived at Campos’ Tree Line Drive address approximately two

minutes and fifteen seconds after the 9-1-1 call was received by dispatch. When Brun arrived, she

“saw a [silver, double-cab] truck parked about halfway down the block on Tree Line,” and she

testified that “[t]he truck lights were on” and the engine was running. When she drove past the




1
 Originally appealed to the Second Court of Appeals in Fort Worth, Robison’s case was transferred to this Court by
the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West
2013). Because this is a transfer case, we apply the precedent of the Fort Worth Court of Appeals to the extent it
differs from our own. See TEX. R. APP. P. 41.3.

                                                        2
truck, Brun saw a Caucasian male in a “park-like area” (called a greenbelt) “with a flashlight on

his phone looking at the ground.” At that point, Brun “called him over to [her].”

       Brun’s investigation began as a “suspicious person” complaint rather than a DWI

investigation. However, when the man approached Brun, she could smell the odor of alcohol

coming from him. Brun obtained his driver’s license and identified him as Robison. Robison told

her that he smelled like alcohol because he was a bartender, but Brun believed that the odor was

coming from Brun’s breath, not from his clothes. Robinson also told her that he had been at a

friend’s house playing video games and denied having consumed alcohol or drugs. Robison had

difficulty giving directions to his friend’s house, but explained, “This is the first time I’ve been

over to his house.”

       Robison told Brun that, after leaving his friend’s house, “[he] was coming around this

corner,” and thought he had “clipped” a black truck, thereby knocking off his truck’s side mirror.

Although she did not find any evidence to support Robison’s claim that he had collided with

another truck, Brun did see damaged bushes, trees, and a road sign that had been knocked to the

ground at the intersection of Josey Lane and Tree Line Drive. In addition, she found pieces of

Robison’s truck’s mirror in the center median. Nevertheless, Robison denied that he had caused

the damage by hitting a sign, but continued to maintain that he had hit another truck.




                                                 3
        Based on the totality of this information, Brun administered field sobriety tests to Robison.

After completing the tests, Brun believed that Robison was under the influence of alcohol, drugs,

or a combination of the two, and she arrested him for the offense of DWI.2

II.     Legally Sufficient Evidence Supports the Conviction

        A.       Standard of Review

        In evaluating legal sufficiency, we must review all the evidence in the light most favorable

to the jury’s verdict to determine whether any rational jury could have found the essential elements

of DWI, third offense, beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Our

rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323

S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of

the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443

U.S. at 318–19).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of


2
 Officers subsequently inventoried Robison’s truck and “located an orange pill bottle in the center console bearing
[Robison]’s name. It was for hydrocodone.” In addition, a blood draw showed that Robison’s blood contained, among
other things, marihuana and cocaine.
                                                        4
liability, and adequately describes the particular offense for which the defendant was tried.” Id.

Under Texas law, a person is guilty of DWI, third offense, if the person (1) having been two times

previously convicted of an offense related to the operation of a motor vehicle while intoxicated

(2) is intoxicated (3) while operating a motor vehicle (4) in a public place. See TEX. PENAL CODE

ANN. §§ 49.04, 49.09(b) (West Supp. 2016).

       B.      Discussion

               1.      The Corpus Delicti Doctrine

       The only element in dispute in this case is whether Robison had been operating his vehicle

at the time in question. Pointing to the corpus delicti doctrine, Robison contends his admission

that he had been operating the motor vehicle, without corroboration, is insufficient to establish this

element of the offense. See Miller v. State, 457 S.W.3d 919, 920 (Tex. Crim. App. 2015); see also

Fisher v. State, 851 S.W.2d 298, 302 (Tex. Crim. App. 1993). The term “corpus delicti” means

the “harm brought about by the criminal conduct of some person.” Gribble v. State, 808 S.W.2d

65, 70 (Tex. Crim. App. 1990). In Hacker, the Court of Criminal Appeals explained the corpus

delicti rule, stating, “When the burden of proof is ‘beyond a reasonable doubt,’ a defendant’s

extrajudicial confession does not constitute legally sufficient evidence of guilt absent independent

evidence of the corpus delicti.” Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013).

       The corroborating evidence requirement ensures that a person admitting to a crime is not

convicted without independent evidence that the crime actually occurred. Salazar v. State, 86

S.W.3d 640, 644 (Tex. Crim. App. 2002). “The corroborating evidence need not prove the

underlying offense conclusively; there simply must be some evidence that renders the commission

                                                  5
of the offense more probable than it would be without the evidence.” McCann v. State, 433 S.W.3d

642, 646 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Gonzales v. State, 190 S.W.3d

125, 131 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)). We must therefore consider whether

independent evidence existed to support the jury’s finding that Robison was operating the truck

prior to his arrest for DWI.

        The term “operating,” as utilized in the Penal Code, is not defined. See TEX. PENAL CODE

ANN. § 49.04(a);3 see also Kirsh v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012). In

assessing the sufficiency of the evidence to prove that a defendant was “operating” a vehicle as

contemplated by the statute, we look to the totality of the circumstances. Kirsh, 357 S.W.3d at

651.    Those circumstances must “demonstrate that the defendant took action to affect the

functioning of his vehicle in a manner that would enable the vehicle’s use.” Id. at 650–51 (quoting

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

        “Under this standard, ‘operating’ a motor vehicle is interpreted very broadly.” Smith v.

State, 401 S.W.3d 915, 919 (Tex. App.—Texarkana 2013, pet. ref’d) (citing Dornbusch v. State,

262 S.W.3d 432, 436 (Tex. App.—Fort Worth 2008, no pet.)). “[W]hile driving does involve the

operation, operation does not necessarily involving driving.”                  Denton, 911 S.W.2d at 389.

“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 function of

[a] vehicle in a manner that would enable the vehicle’s use.’” Smith, 401 S.W.3d at 919 (quoting



3
 “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” TEX.
PENAL CODE ANN. § 49.04(a).
                                                        6
Strong v. State, 87 S.W.3d 206, 216 (Tex. App.—Dallas 2002, pet. ref’d), abrogated on other

grounds by Pfeiffer v. State, 363 S.W.3d 594 (Tex. Crim. App. 2012)). The action taken to affect

the function of the vehicle “need not succe[ed] in causing the vehicle to function for the person to

be operating it.” Strong v. State, 87 S.W.3d 206, 215 (Tex. App.—Dallas 2002, pet. ref’d),

abrogated on other grounds by Pfeiffer v. State, 363 S.W.3d 594 (Tex. Crim. App. 2012).

        Accordingly, Texas courts have upheld DWI convictions in cases where the intoxicated

person was not actually driving the vehicle. See, e.g., Denton, 911 S.W.2d at 388–89 (defendant

unable to accelerate because vehicle required time to “warm up”); Dornbusch v. State, 262 S.W.3d

432, 433 (Tex. App.—Fort Worth 2008, no pet.) (“operation” occurred where driver fell asleep,

“hunched over the steering wheel” in parking lot); see also Hearne v. State, 80 S.W.3d 677, 679

(Tex. App.—Houston [1st Dist.] 2002, no pet.) (defendant asleep behind wheel of idling vehicle

in roadway with gear shift in “park”); Barton v. State, 882 S.W.2d 456, 458 (Tex. App.—Dallas

1994, no pet.) (defendant asleep behind wheel of idling vehicle in roadway with gear shift in

neutral).

               2.      Application of the Law to the Case

        Although Brun did not see Robison operating the truck, other evidence corroborated

Robison’s statement that he, in fact, had been driving it. First, Campos described the person at her

door as a white male in his late twenties. She said that he had just driven away from her residence

in a silver truck and that he was searching for something in her yard with a flashlight. Less than

three minutes later, Brun arrived at a location very near Campos’ home, and Brun observed a silver

truck with its headlights on and its engine running. Brun then saw a white man carrying a

                                                 7
flashlight. In addition, Robison told Brun he was searching for a part of his truck’s side-view

mirror, which he claimed had been knocked off when he hit another truck. While Brun doubted

that there had been a collision with another vehicle, she saw recent damage to nearby bushes, trees,

and a road sign that was consistent with the damage to Robison’s truck.

       Certainly, the additional corroborating evidence makes the charged offense “more probable

than it would be without the evidence.” See McCann, 433 S.W.3d at 646; see also Gonzales v.

State, 190 S.W.3d 125, 131 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Moreover, a jury

may draw reasonable inferences from evidence and choose which inference is most reasonable.

Laster v. State, 275 S.W.3d 512, 522–23 (Tex. Crim. App. 2009). Considering the corroborating

evidence, along with Robison’s admission, we find sufficient evidence existed to support the jury’s

finding that Robison had been operating the vehicle at issue.

       We overrule Robison’s first point of error.

III.   “EMS Trauma Fund” Court Cost Is Facially Unconstitutional

       In his second point of error, Robison challenges the assessment of court costs which are

statutorily mandated by Article 102.0185(a) of the Texas Code of Criminal Procedure. See TEX.

CODE CRIM. PROC. ANN. art. 102.0185(a) (West Supp. 2016)               Article 102.0185, entitled

“Additional Costs Attendant to Intoxication Convictions: Emergency Medical Services, Trauma

Facilities, and Trauma Care Systems,” states, “In addition to the costs on conviction imposed by

Articles 102.016 and 102.018, a person convicted of an offense under Chapter 49, Penal Code,

except for Sections 49.02 and 49.031, shall pay $100 on conviction of the offense.” Id.



                                                 8
       A fee statute is considered constitutional if it provides for the allocation of court costs to

be dispersed for a “legitimate criminal justice purpose[],” meaning it must “relate[] to the

administration of our criminal justice system.” Peraza v. State, 467 S.W.3d 508, 517–18 (Tex.

Crim. App. 2015), cert denied, 136 S.Ct. 1188 (2016). The opponent of a statute has the burden

to establish its unconstitutionality. Id. at 514. When we review the constitutionality of a statute,

“we commence with the presumption that such statute is valid and that the Legislature has not

acted unreasonably or arbitrarily in enacting the statute.” Ex parte Granviel, 561 S.W.2d 503, 511

(Tex. Crim. App. 1978). “We must seek to interpret a statute such that its constitutionality is

supported and upheld.” Peraza, 467 S.W.3d at 514. In order to successfully mount a facial

challenge to Article 102.0185(a), an opponent must establish that there are no circumstances under

which the statute would be valid. Id. at 515.

       The Fort Worth Court of Appeals recently addressed the constitutionality of court costs

under Article 102.0185(a) of the Texas Code of Criminal Procedure. See Casas v. State, 524

S.W.3d 921 (Tex. App.—Fort Worth 2017, no pet.). There, the State maintained that, “because

the statutory definitions of trauma services, trauma facility, emergency-medical care, and

emergency-medical services would possibly include such services that are provided to individuals

seriously injured by a drunk driver and unable to pay, this is a legitimate, criminal-justice purpose.”

Id. at 926. Emphasizing the Court of Criminal Appeals’ holding in Salinas, the Fort Worth Court

of Appeals stated that “the medical-services cost suffers from the same infirmity that the court of

criminal appeals found applicable to portions of a consolidated fee imposed as court cost upon



                                                  9
criminal conviction under the local government code.”4 Id. That is, “[n]either the statute

authorizing the collection of the emergency-services cost nor its attendant statutes direct the funds

to be used for a legitimate, criminal-justice purpose; therefore, it is a tax that is facially

unconstitutional.” Id. at 927.

        Accordingly, we sustain Robison’s second point of error.

IV.     Conclusion

        In this case, the trial court assessed $484.00 in court costs against Robison. That amount

included $100.00 for emergency-services costs. As we have determined that the $100.00 for

emergency-services cost is unconstitutional, we hereby modify the trial court’s judgment by

reducing the amount of assessed court costs from $484.00 to $384.00. As modified, we affirm the

trial court’s judgment.


                                                     Ralph K. Burgess
                                                     Justice

Date Submitted:           October 10, 2017
Date Decided:             October 18, 2017

Do Not Publish

4
 In Salinas, the Court of Criminal Appeals declared Section 133.102 of the Texas Local Government Code facially
unconstitutional to the extent the funds collected as court costs were dispersed to accounts for “abused children’s
counseling” and “comprehensive rehabilitation.” See Salinas v. State, 523 S.W.3d 103, 105 (Tex. Crim. App. 2017).
In doing so, the court found that the funds contained in the two accounts were not expended for a legitimate criminal
justice purpose, concluding,
         [W]ith respect to the collection and allocation of funds for [abused children’s counseling and
         comprehensive rehabilitation,] the statute is facially unconstitutional in violation of separation of
         powers. We also hold, however, that the invalidity of these two statutory provisions does not render
         the statute as a whole unconstitutional. As a result, we hold that any fee assessed pursuant to the
         consolidated fee statute must be reduced pro rata to eliminate the percentage of the fee associated
         with these two accounts. We reverse the judgment of the court of appeals and render judgment
         modifying the court costs in appellant’s case.
Id.
                                                        10
