








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0245-11


SCOTT ALAN KIRSCH, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS

HARRISON  COUNTY



 Alcala, J., delivered the opinion for a unanimous Court. 

O P I N I O N


Appellant, Scott Alan Kirsch, was convicted of his second driving while intoxicated
(DWI) offense in violation of Texas Penal Code § 49.04(a). (1) Tex. Pen. Code § 49.04(a). In
his petition for discretionary review, appellant argues, in two issues, that the court of appeals
erred by affirming the trial court's charge to the jury, which included a definition of the
statutorily undefined term "operate" as it is used in the DWI statute.  We conclude that the
trial court erred in defining that term and reverse the judgment of the court of appeals. 
I.        Background
	On the night of the offense, Julie Richards was driving home from work on State
Highway Loop 281 in Longview, Texas, when she encountered appellant straddling a
motorcycle with his hands on the handle bars stopped in the middle of the road at an
intersection.  Ms. Richards testified that, after a few moments, he began slowly tilting to one
side and "just leaned over until he fell completely on the ground, one leg under the
motorcycle, one over it still straddling it."  She pulled up beside him and asked if he needed
assistance, which he declined. But as she drove away, she saw in her rearview mirror that he
made no attempt to get up. She called the Harrison County Sheriff's Department and reported
the incident. 
	Deputy Kevin Johnson testified that he promptly responded to the call. When he
arrived, he observed appellant sitting on top of his motorcycle attempting to "kick-start" it,
which appellant ceased when Deputy Johnson approached him.  Deputy Johnson testified that
appellant's speech was slurred and that he had difficulty following directions and balancing.
Deputy Bill Turner soon arrived and conducted an "intoxication investigation."  Based on
that investigation, Deputy Turner concluded that appellant was intoxicated and placed him
under arrest.
	Appellant was charged by information with DWI.  At trial, the trial court, in its written
charge to the jury, defined "operate" as "to exert personal effort to cause the vehicle to
function."  Defense counsel objected to this instruction, arguing that 
on the first page, the last paragraph should be eliminated from [the charge], as
to the words, "The term operate."  There is no definition of the word "operate"
in the Penal Code and these are made up by the prosecutor himself, by his own
admission, and put in here. 

The trial court explained that the prosecutor had submitted "a case with that language in
there." (2)   Defense counsel responded that the case law to which the State referred did not
pertain to jury instructions.   Overruling the objection, the trial court submitted the charge to
the jury.  The jury convicted appellant and assessed his punishment.
On direct appeal, appellant complained that the trial court erred by defining "operate"
in the jury charge, arguing that it is "a common term" and that provision of a definition
constituted a comment on the weight of the evidence. (3)  Kirsch v. State, No. 06-10-00071-CR,
2010 Tex. App. LEXIS 8801, at *1 (Tex. App.--Texarkana Nov. 4, 2010) (mem. op., not
designated for publication).   The court of appeals observed that the definition the trial court
provided in its charge to the jury "is conscripted" from this Court's opinion in Denton v.
State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). Id. at *11.  In that case, we defined
"operate" as taking "action to affect the function of [a] vehicle in a manner that would enable
the vehicle's use" in order to assess the sufficiency of the evidence to support that element.
Denton, 911 S.W.2d at 390. Citing Denton, the court of appeals held, "Because the definition
of operate, while not necessary, was not without reference to guiding rules or principles, we
do not find that an abuse of discretion occurred." 2010 Tex. App. LEXIS 8801, at *11.  It
also declined to address appellant's improper-comment complaint as unpreserved because
it concluded that trial counsel did not lodge an objection on that ground and that appellate
counsel's brief was "inadequate with respect to this potential point of error." Id. at *12-13.
We granted review in this case to determine whether the court of appeals erred in
holding that the trial court acted within its discretion in instructing the jury on a definition
of the term "operate" as used in the DWI statute.   
II.     Analysis
In two grounds for review, appellant inquires whether, in the guilt-innocence charge
in a DWI case, it is necessary to define the term "operate" and asks if the court of appeals
erred in approving a definition of that term.  He contends that the definition was an improper
comment on the weight of the evidence.
A.      Preservation of Error
The court of appeals concluded that, although "the trial court was not obligated to give
a definition of 'operate,' it did not exceed its 'broad discretion' by providing the correct
definition, because 'the definition of "operate" was directly at issue.'" Kirsch, 2010 Tex.
App. LEXIS 8801, at *11 (quoting Denton, 911 S.W.2d at 389).  But it declined to consider
whether providing the definition constituted an improper comment on the weight of the
evidence because, it concluded, appellant did not properly preserve the issue at trial. Id. at
*12-13.  However, all alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court. Middleton v. State, 125 S.W.3d 450, 453 (Tex.
Crim. App. 2003). Appellate review of purported error in a jury charge involves a two-step
process.  Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); Middleton, 125
S.W.3d at 453.  First, we determine whether the jury instruction is erroneous.  Middleton, 125
S.W.3d at 453.  Second, if  error occurred, then an appellate court must analyze that error for
harm. Id.  The issue of error preservation is not relevant until harm is assessed because the
degree of harm required for reversal depends on whether the error was preserved. Id. (4) We
conclude that failure to preserve error is not a proper basis for the court of appeals to decline
to address whether the trial court improperly commented on the weight of the evidence.
Furthermore, contrary to the court of appeals's conclusion that appellant did not
adequately brief this issue in his direct appeal, appellant's first issue in his direct-appeal brief
stated, "The definition is a comment on the weight of the State's evidence," and he
concluded that the instruction "emphasized personal effort without regard to the merely
preparatory attempts to start the motorcycle." Although he relied primarily on evidentiary-sufficiency cases discussing definitions of "operate" in support of his argument, his brief was
sufficient to advance his improper-comment complaint. (5) Similarly, in his petition for
discretionary review, he argues that a trial court "cannot create a charge that by its terms
comments on the conduct at issue." In his brief, he adds that "the non-statutory instruction"
constituted "a prohibited comment on the weight of the evidence," citing applicable
authority.  Because the court of appeals erred in declining to address his issue, and because
he properly raises it in this Court, we must decide whether the trial court's instruction
improperly commented on the weight of the evidence.
B.         Error Analysis:  Trial Court Erred in Defining "Operate" in Jury Charge
1.  "Operate" is a Statutorily Undefined, Common Term	
The Texas Penal Code provides that a person commits the offense of driving while
intoxicated when the person "is intoxicated while operating a motor vehicle in a public
place." Tex. Pen. Code § 49.04(a).  The Code does not define the term "operating." See id.;
see also Denton, 911 S.W.2d at 389. Texas Government Code § 311.011 provides that
statutorily undefined words and phrases shall be "construed according to the rules of
grammar and common usage. Words and phrases that have acquired a technical or particular
meaning . . . shall be construed accordingly." (6) Tex. Gov't Code § 311.011. We have
explained that jurors may "freely read [undefined] statutory language to have any meaning
which is acceptable in common parlance." Denton, 911 S.W.2d at 390; see also Medford v.
State, 13 S.W.3d 769, 771-72 (Tex. Crim. App. 2000). Conversely, "terms which have a
known and established legal meaning, or which have acquired a peculiar and appropriate
meaning in the law, as where the words used have a well-known common law meaning," are
"considered as having been used in their technical sense." Medford, 13 S.W.3d at 772.
The State argues that the term "operate" "no longer has the simple, common, narrow
definition accepted by lay persons, but is broader than the normal understanding of the
general population."  It cites several "lay" definitions of the term and argues that "[c]ommon
parlance says that operate means to, 'make it go,'" whereas the legal definition "is
tantamount to an 'attempt to operate.'" However, case law does not support this contention,
as many Texas juries have rendered guilty verdicts even when the evidence showed that the
operator did not successfully make the vehicle "go." See, e.g., Denton, 911 S.W.2d at 388
(defendant unable to accelerate because vehicle required time to "warm up"); Dornbusch v.
State, 262 S.W.3d 432 (Tex. App.--Fort Worth 2008, no pet.) (defendant asleep in driver's
seat of idling vehicle parked in parking lot). (7)  Our cases have consistently held that "operate"
is a common term that has not acquired a technical meaning and may be interpreted
according to its common usage.  See Denton, 911 S.W.2d at 389 (approving of lower court's
reliance on the "plain meaning" of the statutorily undefined term in assessing the sufficiency
of the evidence); Capps v. State, 352 S.W.2d 833, 835 (Tex. Crim. App. 1962) (explaining
that the statutory language, including the term "operate," consists of "ordinary English words
which are commonly and ordinarily understood by people generally, hence the court was not
required to define them.").  Therefore, nothing in our case law suggests that a risk exists that
jurors may arbitrarily apply an inaccurate definition to the term "operate" or that an express
definition is required to assure a fair understanding of the evidence. Compare Medford, 13
S.W.3d at 772 (holding that "'[a]rrest' is a technical term possessing a long, established
history in the common law, and it would be inappropriate if jurors arbitrarily applied their
personal definitions of arrest.").    
The court of appeals correctly noted that this Court has concluded that a person
"operates" a vehicle when "the totality of the circumstances [] demonstrate that the defendant
took action to affect the functioning of his vehicle in a manner that would enable the
vehicle's use." Kirsch, 2010 Tex. App. LEXIS 8801, at *6 (quoting Denton, 911 S.W.2d at
390).  However, the cases that have discussed the definition of the term, including Denton
and other cases cited by the court of appeals, have done so in assessing the sufficiency of the
evidence to support that element on appeal, not in determining whether or how to instruct the
jury at trial.  See Denton, 911 S.W.2d at 389. (8) Although an appellate court may articulate a
definition of a statutorily undefined, common term in assessing the sufficiency of the
evidence on appellate review, a trial court's inclusion of that definition in a jury charge may
constitute an improper comment on the weight of the evidence. (9) 2.      Instruction on Definition was Comment on Weight of Evidence
The trial court is required to give the jury a written charge "setting forth the law
applicable to the case; not expressing any opinion as to the weight of the evidence, not
summing up the testimony, discussing the facts or using any argument in his charge
calculated to arouse the sympathy or excite the passions of the jury." Tex. Code Crim. Proc.
art. 36.14.  We have generally held that, if a jury-charge instruction "is not derived from the
[penal] code, it is not 'applicable law'" under art. 36.14. Walters v. State, 247 S.W.3d 204,
214 (Tex. Crim. App. 2007).  With only limited exceptions, (10) the trial court may not include
an instruction that focuses the jury's attention on a specific type of evidence that may support
a finding of an element of an offense. Id. at 212.  Juries are free to "consider and evaluate the
evidence in whatever way they consider it relevant to the statutory offenses," and "special,
non-statutory instructions, even when they relate to statutory offenses or defenses, generally
have no place in the jury charge." Id. at 211. 
An instruction, albeit facially neutral and legally accurate, may nevertheless constitute
an improper comment on the weight of the evidence. See, e.g., Brown v. State, 122 S.W.3d
794, 797 (Tex. Crim. App. 2003).  In Brown v. State, the trial court instructed, in its original
charge to the jury, that "intent or knowledge may be inferred by acts done or words spoken."
Id.  Despite the legal accuracy of the instruction, we held that it improperly "singles out a
specific type of evidence and tells the jury that it may infer an element of the crime" from
that evidence. Id. at 800-01. The error, we explained, "lies in instructing the jury that they
may apply such an inference." Id. at 800 (quoting Browning v. State, 720 S.W.2d 504, 507
(Tex. Crim. App. 1986)).  This is because the inference is "a judicial review device" or "a
common-sense tool for a trial judge" used to gauge evidentiary sufficiency, "not an explicit
legal tool for the jury." Id. at 802-03. We thus concluded that, although a "close call," the
trial court erred because it "focus[ed] the jury's attention on the type of evidence that may
support a finding of criminal intent." Id. at 802. (11) 
Here, in defining the term "operate" as "to exert personal effort to cause the vehicle
to function," the trial court selected one definition of a statutorily undefined, common term
that the jury could have selected in assessing the evidence and instructed the jury that they
"must be governed by" that definition. See Abdnor, 871 S.W.2d at 731 ("[W]hile the 'jury
is the exclusive judge of the facts, . . . it is bound to receive the law from the court and be
governed thereby.'") (quoting Tex. Code. Crim. Proc. art. 36.13).  Although the definition
set forth in the charge is an appropriate definition for an appellate court to apply in assessing
the sufficiency of the evidence to support the "operate" element, instructing the jurors as to
that definition in this case impermissibly guided their understanding of the term. The jury
should have been free to assign that term "any meaning which is acceptable in common
parlance." Denton, 911 S.W.2d at 390; Medford, 13 S.W.3d at 771-72. 
Furthermore, as appellant noted in his direct-appeal brief, the definition emphasizes
evidence tending to show "personal effort" toward causing the vehicle to function over
evidence that would tend to show "merely preparatory attempts to start the motorcycle,"
which the jury could have reasonably decided did not constitute "operating." See Dornbusch,
262 S.W.3d at 436 (defining "operate" as "any action that is more than mere preparation
toward operating the vehicle"); Strong v. State, 87 S.W.3d 206, 215-16 (Tex. App.--Dallas
2002, pet. ref'd) (same). Therefore, although the instruction did not "pluck out" any specific
piece of evidence for special attention, it did improperly focus the jury on the type of
evidence that would support a finding that appellant was operating his motorcycle. See
Walters, 247 S.W.3d at 214; Brown, 122 S.W.3d at 802.
Whether appellant was operating his motorcycle was a question of fact to be resolved
by the jury. See Tex. Code Crim. Proc. 36.13; Brown, 122 S.W.3d at 798-99. It was the
responsibility of the advocates to argue or refute that the evidence supports that element of
the offense. See Walters, 247 S.W.3d at 214; Brown, 122 S.W.3d at 798-99.  Because the
trial court improperly impinged on the jury's fact-finding authority by limiting the jurors'
understanding of what evidence could constitute "operating," we hold that the trial court
erred by defining that term in its charge to the jury. See Bartlett v. State, 270 S.W.3d 147,
151-52 (Tex. Crim. App. 2008). 
III.      Conclusion
	We reverse the judgment of the court of appeals and remand to that court to determine
whether appellant suffered harm as a result of the erroneous instruction. See Abdnor, 871
S.W.2d at 731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

Filed:  January 25, 2012

Publish
1. 
 1 	Under that section, "[a] person commits an offense if the person is intoxicated while
operating a motor vehicle in  a public place." Tex. Pen. Code § 49.04(a).
2. 
2           It is not apparent from the record to which case the trial court referred.
3. 3 	Appellant also complained that evidence was legally and factually insufficient to show that
he was "operating" a vehicle, which the court of appeals overruled.  Appellant does not
challenge the sufficiency of the evidence in his petition for discretionary review.
4. 	We express no opinion as to whether appellant properly preserved his complaint that the
instruction constituted an improper comment on the weight of the evidence.
5. 
5    	We note that cases discussing jury-charge issues in this context frequently also discuss
sufficiency issues.  In fact, in deciding the jury-charge issue in this case, the court of appeals
cited primarily sufficiency cases, as well as an improper-comment case.  Kirsch, 2010 Tex.
App. LEXIS 8801, at *11 (citing, e.g., Denton v. State, 911 S.W.2d 388 (Tex. Crim. App.
1995); Laroque v. State, No. 2-09-210-CR, 2010 Tex. App. LEXIS 6874 (Tex. App.--Fort
Worth Aug. 19, 2010, no pet.) (mem. op., not designated for publication)); see also n.6,
infra.
6. 	See also Tex. Pen. Code § 1.05 (providing that Tex. Gov't Code § 311.011 applies "to the
construction of this code.").
7.  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 "park" in roadway); Barton v. State, 882
S.W.2d 456, 458 (Tex. App--Dallas 1994, no pet.) (same, but vehicle in "neutral").  
8.  	See also Capps, 352 S.W.2d at 835; Reddie v. State, 736 S.W.2d 923, 927 (Tex. App.--San
Antonio 1987, pet. ref'd); Barton, 882 S.W.2d at 459; Hearne, 80 S.W.3d at 679; Dornbusch
v. State, 262 S.W.3d 432, 436 (Tex. App.--Fort Worth 2008, no pet.). 
9. 	The court of appeals also cites Laroque v. State, which held that the trial court did not err in
instructing the jury on a similar definition of "operate." No. 2-09-210-CR, 2010 Tex. App.
LEXIS 6874, at *10.  However, this unpublished opinion has no precedential value, and we
are not persuaded by its reasoning. See Tex. R. App. P. 77.3.
10. 	No permissible exception is applicable to this case.
11. 	See also Bartlett v. State, 270 S.W.3d 147, 148-49 (Tex. Crim. App. 2008) (trial court
improperly commented on weight of evidence by instructing jury that it was permitted to
consider the defendant's refusal to submit a breath test); Deener v. State, 214 S.W.3d 522,
529 (Tex. App.--Fort Worth 2006, pet. ref'd) ("Because the affirmative-links rule is only
a shorthand expression for evaluating the sufficiency of the evidence, instructing the jury on
the affirmative-links rule would be improper.").
