Opinion issued March 25, 2014




                                    In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-13-00325-CR
                          ———————————
               MICHAEL CHANNING MCCANN, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 6
                           Harris County, Texas
                       Trial Court Case No. 1841860



                                OPINION

     The trial court found appellant, Michael Channing McCann, guilty of

driving while intoxicated (“DWI”) 1 and assessed his punishment at three days’


1
     See TEX. PENAL CODE ANN. § 49.04(a) (Vernon Supp. 2013).
confinement in the Harris County Jail and a $1000 fine. In his sole issue on

appeal, appellant argues that the evidence was legally insufficient to establish that

he operated the vehicle while he was intoxicated.

      We affirm.

                                   Background

      Officer L. Garcia was dispatched to a commercial building on Bay Area

Boulevard on July 27, 2012, at approximately 2:00 a.m., based on a report that a

man was wandering in front of the building and that the man “wasn’t aware of

where he was.” Officer Garcia arrived approximately five to ten minutes after

being dispatched, and the person who had made the report pointed Garcia in the

direction of the man, whom Garcia identified in court as appellant.

      Officer Garcia approached appellant and observed that he appeared

intoxicated: appellant had slurred speech and could not stand still. Officer Garcia

testified that appellant told him he had been drinking with a family member in

League City but had left after arguing with his brother. Appellant told Officer

Garcia that he got lost after leaving League City and then drove off the road and hit

something. Appellant told Officer Garcia that he was trying to get back to his

vehicle.

      Officer Garcia testified that, at that point, he placed appellant in the back of

his patrol car and went in search of appellant’s vehicle, but appellant told Garcia


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that he was unfamiliar with the area and could not remember where he had left it.

Officer Garcia and appellant located the vehicle about five minutes later,

approximately 300 to 400 yards from where Officer Garcia first encountered

appellant. Appellant acknowledged that the vehicle—located in a median in front

of an apartment complex—was his.           Officer Garcia did not encounter any

pedestrians while he searched for the car with appellant.

      Officer T. Berry had also been dispatched to the building on Bay Area

Boulevard in reference to the accident. When he arrived at the scene, Officer

Berry found Officer Garcia and appellant standing next to a maroon Nissan Altima

in a grassy median. The front end of the vehicle was up against a tree in the

median, and Officer Berry observed that the vehicle’s airbags had deployed and

that the vehicle’s hood was warm—“warmer than the ambient air temperature.”

Appellant told Officer Berry that he had been drinking wine at a family member’s

home, got into an argument with his brother, attempted to drive the vehicle back to

his hotel, and got lost. Officer Berry observed that appellant demonstrated signs of

intoxication such as “slurred speech, staggered stance, and red, watery eyes.”

Appellant also told Officer Berry that “the air bag had hit him pretty hard.”

      Officer Berry testified about the area where officers discovered appellant’s

wrecked vehicle. Officer Berry did not observe any pedestrian traffic in the area,

and the vehicular traffic was light. Officer Berry also testified that it was a “very

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quiet” area of town. There were no bars nearby, and there were no establishments

that sold alcohol in the area.     Officer Berry stated that the nearest bar was

approximately four to five miles from where appellant’s vehicle was found crashed

and that the only nearby place that sold alcohol—which was between two and two-

and-a-half miles away—closed at 10:30 p.m.

      A third officer, Officer N. Slight, arrived on the scene of the accident. He

noticed that appellant had red, watery eyes, slurred speech, and “the odor of

alcohol coming from his breath and person.” Appellant told Officer Slight that he

had drunk a margarita and three glasses of wine. Officer Slight administered

standard field sobriety tests to appellant. Officer Slight testified that appellant

demonstrated six out of six clues of intoxication on the horizontal gaze nystagmus

test, four out of eight clues of intoxication on the walk-and-turn test, and four out

of four clues on the one-leg stand test. Officer Slight reached the conclusion that

appellant demonstrated multiple indicators of intoxication and was too impaired to

drive safely. He transported appellant to the county jail, where appellant declined

to provide a breath sample. At some point during or after the booking process,

appellant complained of chest and wrist pain, so the police called for an

ambulance.

      The trial court found appellant guilty of DWI, and this appeal followed.




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                           Sufficiency of the Evidence

      In his sole issue, appellant argues that the evidence was legally insufficient

to support his DWI conviction.

A.    Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact

finder could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence). Our review of “all of the evidence” includes evidence that was properly

and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). Furthermore, direct and circumstantial evidence are treated equally, and

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor. Id. Circumstantial evidence alone can be sufficient to establish guilt.

Id. The fact finder is the exclusive judge of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). We may not re-evaluate the weight and

credibility of the evidence or substitute our judgment for that of the fact finder.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also Clayton,


                                         5
235 S.W.3d at 778 (“When the record supports conflicting inferences, we presume

that the factfinder resolved the conflicts in favor of the prosecution and therefore

defer to that determination.”).

B.    Satisfaction of the Corpus Delicti Rule

      Appellant argues in part that the State presented no corroborating evidence

to support his extrajudicial statement to the police officers at the scene that he had

been drinking and had run off the road and hit something, and, thus, the State had

failed to satisfy the corpus delicti rule. Appellant contends that his extrajudicial

statement, standing alone, is legally insufficient to establish his guilt.

      In Texas law, “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).      The corpus delicti rule requires some corroboration of a

confession with evidence of a harm brought about by the criminal conduct of some

person. Gonzales v. State, 190 S.W.3d 125, 130–31 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d) (citing Gribble, 808 S.W.2d at 70); see Salazar v. State, 86

S.W.3d 640, 644 (Tex. Crim. App. 2002). The purpose of the corroboration

requirement is to ensure that a person confessing to a crime is not convicted

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

S.W.3d at 644–45. Therefore, the corpus delicti rule is satisfied if some evidence

exists outside of the extrajudicial confession which, considered alone or in


                                            6
connection with the confession, shows that the crime actually occurred. Id. at 645.

The corroborating evidence need not prove the underlying offense conclusively;

there simply must be some evidence that renders the commission of the offense

more probable than it would be without the evidence. Gonzales, 190 S.W.3d at

131 (citing Cardenas v. State, 30 S.W.3d 384, 390 (Tex. Crim. App. 2000)).

      The Penal Code provides that 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(a) (Vernon Supp. 2013). Thus, the corpus delicti of DWI is that

someone drove or operated a motor vehicle in a public place while intoxicated.

Layland v. State, 144 S.W.3d 647, 651 (Tex. App.—Beaumont 2004, no pet.);

Zavala v. State, 89 S.W.3d 134, 137 (Tex. App.—Corpus Christi 2002, no pet.)

(citing Threet v. State, 250 S.W.2d 200, 200 (Tex. Crim. App. 1952)).

      While none of the investigating officers saw appellant driving the vehicle,

other evidence corroborated appellant’s statement that he had left the place where

he had been drinking, got lost, drove off the road, and hit something. See Laster v.

State, 275 S.W.3d 512, 522–23 (Tex. Crim. App. 2009) (holding that fact finder

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

reasonable). Police found appellant intoxicated and wandering within 300 to 400

yards of where the crashed vehicle was located. The vehicle was found on a

median, crashed into a tree. Appellant acknowledged that the crashed vehicle

                                         7
belonged to him. He complained of chest and wrist pain, which corresponded to

his being struck by deploying air bags. Officer Slight testified that the hood of

appellant’s vehicle was warmer than the ambient air temperature when he arrived

at the scene of the accident, indicating that the engine had recently been running,

and that appellant demonstrated multiple signs of intoxication. All of the officers

testified that there were no other pedestrians in the area. Thus, there was no one

else around who could have been the driver of the recently crashed vehicle. And

Officer Berry testified that there was no place nearby where appellant could have

purchased alcohol.

      Appellant argues that this evidence is insufficient to corroborate his

extrajudicial statement to police, citing cases like Threet and Coleman v. State to

support his argument.     However, we find the cases cited by appellant to be

distinguishable from the present case.

      In Threet, a highway patrolman found an overturned vehicle with no driver.

250 S.W.2d at 200. The patrolman located the defendant in a hospital, where the

defendant, who appeared to be intoxicated, admitted to the patrolman that he was

the driver of the crashed vehicle. Id. The Court of Criminal Appeals held that the

evidence was insufficient to support the appellant’s conviction:

      Outside of appellant’s confession, we have only a turned-over or
      wrecked pick-up on the highway to establish his guilt. Except for
      such confession, there is no testimony that he was the driver of the

                                         8
      truck, that he owned the truck, or that he was seen at the place of the
      wreck.

Id. Here, however, as discussed above, we have more than just a wrecked vehicle.

      In Coleman, officers arrived at the scene of a traffic accident to find three or

four people standing near two stationary vehicles. 704 S.W.2d 511, 511 (Tex.

App.—Houston [1st Dist.] 1986, pet. ref’d). Coleman, who was intoxicated, told

officers at the scene that he had been driving and had “run into” the vehicle in front

of him. Id. No other evidence was presented. See id. This Court observed that

there was no evidence, other than Coleman’s extrajudicial confession, to show that

he was driving the vehicle and “no evidence whatsoever to show that he was

intoxicated at the time he was driving.” Id. at 512 (emphasis in original). This

Court held that the corpus delicti of DWI was not satisfied, contrasting Coleman’s

case with cases in which a defendant’s statement was corroborated by evidence

that the car was registered in his name and that no one else was with him or by a

witness who heard the accident and found the crashed car containing only the

defendant. Id. (citing Sandoval v. State, 422 S.W.2d 458 (Tex. Crim. App. 1967),

and Perez v. State, 432 S.W.2d 954 (Tex. Crim. App. 1968)). Here, however, as

discussed above, appellant described how the accident occurred. He was the only

person in the area; he was found near the scene of the crash; he searched with

Officer Garcia for his vehicle; he acknowledged that the vehicle belonged to him;

he had injuries corresponding to having been struck by the deployed air bag; the
                                          9
hood of his vehicle was still warm when Officer Berry arrived on the scene; he

smelled of alcohol to Officer Slight; and he exhibited multiple clues of intoxication

when administered the field sobriety tests.

      Other courts have found evidence similar to that in this case sufficient to

corroborate a defendant’s extrajudicial statement. In Rawls v. State, a wrecker

driver flagged down a police patrol and informed the officers that the defendant,

Rawls, had had a minor accident. 318 S.W.2d 662, 663 (Tex. Crim. App. 1958).

Police found Rawls next to an inoperable car, and Rawls told the police that he had

hit something and then had driven as far as he could, but his car would no longer

run. Id. The police, accompanied by Rawls, followed a trail of water from what

appeared to be a leaking radiator until they found a telephone pole that had been hit

and broken approximately eight blocks away. Id. Upon returning to the vehicle,

police observed that the radiator and motor were still hot. Id. The trial court also

admitted evidence that Rawls was intoxicated at the time. Id. The Court of

Criminal Appeals affirmed Rawls’ conviction, even though “[t]he only direct

evidence that [Rawls] had driven a motor vehicle upon a public street was his

statement or confession,” stating,

      The fact that appellant failed to challenge the statement of the driver
      of the wrecker or in any other manner failed to challenge the
      implication that it was his automobile which the officer trailed and
      which was found at the site is deemed sufficient circumstance to
      corroborate his extrajudicial confession that he was the driver of the
      automobile.
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Id. (relying on Fancher v. State, 319 S.W.2d 707, 708 (Tex. Crim. App. 1958)

(holding that ownership of vehicle and presence at scene of crash sufficiently

corroborated appellant’s statement)). Likewise, here, appellant described running

off the road and striking something. He then accompanied Officer Garcia on a

search for his car, acknowledged that the crashed vehicle belonged to him when it

was found, and did not make any other statements or present any evidence

challenging that acknowledgment. He was found within 300 to 400 yards from the

site of his crash with an inanimate objecte, and the hood of his vehicle was still

warm. Appellant also failed all three field sobriety tests administered to him and

complained of injuries consistent with his having been struck by a deployed air

bag, as he had described.

      In Folk v. State, the Austin Court of Appeals held that evidence that the

vehicle in question was registered to a person with whom the defendant lived was

sufficient to corroborate his admission that he was driving the vehicle that night.

797 S.W.2d 141, 144 (Tex. App.—Austin 1990, pet. ref’d). In Zavala, the Corpus

Christi Court of Appeals held that evidence that the appellant was purchasing the

vehicle and had taken possession of it, together with the condition of the vehicle at

the time officers arrived on the scene, was sufficient to corroborate his statement.

89 S.W.3d at 137 & n.5.




                                         11
      Thus, we conclude that there is evidence outside of appellant’s extrajudicial

confession showing that the crime of DWI was committed. Therefore, the corpus

delicti rule was satisfied. See Salazar, 86 S.W.3d at 645 (holding that corpus

delicti rule is satisfied if some evidence exists outside of extrajudicial confession

which, considered alone or in connection with confession, shows that crime

actually occurred); Gonzales, 190 S.W.3d at 131 (holding that corroborating

evidence need not prove underlying offense conclusively); Layland, 144 S.W.3d at

651 (holding that corpus delicti of DWI is that someone drove or operated motor

vehicle in public place while intoxicated).

C.    Evidence That Appellant Drove While Intoxicated

      Appellant also argues that the evidence is legally insufficient to show that he

operated a vehicle while intoxicated. A person commits the offense of driving

while intoxicated if the person is intoxicated while driving or operating a motor

vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a). To support a finding

that the defendant was intoxicated while operating a motor vehicle, there must be a

temporal link between the defendant’s intoxication and his driving. Kuciemba v.

State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). Such a finding can be

supported by direct or circumstantial evidence. Id. (holding that conviction can be

supported solely by circumstantial evidence). “Being intoxicated at the scene of a

traffic accident in which the actor was a driver is some circumstantial evidence that


                                         12
the actor’s intoxication caused the accident, and the inference of causation is even

stronger when the accident is a one-car collision with an inanimate object.” Id.

      Here, appellant does not challenge the State’s evidence that he was

intoxicated at the time he interacted with Officers Garcia, Berry, and Slight.

Rather, he argues that there was no evidence that he was intoxicated while he

operated the vehicle. We disagree.

      Officer Garcia discovered appellant near the scene of a one-car collision

with an inanimate object. Appellant acknowledged that the vehicle belonged to

him and told officers at the scene that he had been drinking at a family member’s

house and drove away following a fight with his brother. He became lost on his

way back to his hotel, drove off the road, and hit something. Officer Berry

testified that he observed that the hood of the vehicle was warm when he arrived

on the scene. Officer Berry also testified that the air bags had been deployed and

that appellant complained of chest and wrist pain. All of the officers testified that

there were no other pedestrians in the area, and Officer Berry testified that there

were no bars or establishments that sell alcohol in the area. All three officers

testified that appellant appeared intoxicated, and Officer Slight testified that

appellant smelled of alcohol and failed all three field sobriety tests that were

administered to him.




                                         13
      Even without knowing the exact time span between when the accident

occurred and when Officers Garcia and Berry arrived on the scene, this evidence,

when viewed in the light most favorable to the verdict, is sufficient to support the

trial court’s finding that appellant was intoxicated while he was driving the vehicle.

See Kuciemba, 310 S.W.3d at 462 (holding that circumstantial evidence may

support temporal link between defendant’s intoxication and his driving); Weems v.

State, 328 S.W.3d 172, 177 (Tex. App.—Eastland 2010, no pet.) (“The State need

not establish the precise time of an accident or of the defendant’s driving to prove

the offense of driving while intoxicated.”) (citing Kuciemba, 310 S.W.3d at 462,

Kennemur v. State, 280 S.W.3d 305, 314 n.8 (Tex. App.—Amarillo 2008, pet.

ref’d), and Zavala, 89 S.W.3d at 139).

      The warmth of the hood is some evidence that the accident occurred a

relatively short time before police arrived on the scene. See Warren v. State, 377

S.W.3d 9, 14 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (“The warmth of

the hood and cab of the truck is some evidence that the accident occurred a short

time before Deputy Drake arrived.”) (citing Rawls, 318 S.W.2d at 663). The facts

that appellant smelled of alcohol and failed the field sobriety tests, there were no

other pedestrians nearby who could have been involved in the crash, and there

were no bars or establishments that sold alcohol in the area likewise support the

trial court’s conclusion that appellant was intoxicated at the time he drove his car

                                         14
into the area and crashed on the median. See Weems, 328 S.W.3d at 175–76

(holding that evidence was sufficient to establish that appellant operated vehicle

while intoxicated when vehicle was registered to appellant’s mother, who testified

that he had vehicle on night in question, appellant was found four-tenths of a mile

from accident scene in rural area, and police and EMS personnel saw no one else

in area). Furthermore, appellant told police officers that he had been drinking with

a family member before he left the house to drive back to his hotel. Appellant told

Officer Slight that he had consumed one margarita and three glasses of wine before

driving away from his relative’s home.          See Zavala, 89 S.W.3d at 137–38

(considering appellant’s extrajudicial statement to police in determining evidence

was sufficient to support DWI conviction when sufficient evidence corroborated

appellant’s statement) (citing Self v. State, 513 S.W.2d 832, 835 (Tex. Crim. App.

1974) (holding that confession may be used to aid in establishment of corpus

delicti if there is some evidence corroborating it)).

      Viewing all of the evidence in the light most favorable to the trial court’s

verdict, we determine that the trial court could have found, beyond a reasonable

doubt, that appellant operated a vehicle in a public place while he was intoxicated.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (providing standard for reviewing

sufficiency of evidence); Kuciemba, 310 S.W.3d at 462.




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                                    Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.

Publish. TEX. R. APP. P. 47.2(b).




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