                            NUMBER 13-11-00038-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

GEORGE LARRY HARVEY,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 221st District Court
                       of Montgomery County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      A jury found appellant, George Larry Harvey, guilty of the third-degree felony

offense of driving while intoxicated (DWI). See TEX. PENAL CODE ANN. §§ 49.04 (West

2003), 49.09(b)(2) (West Supp. 2010). The jury found two enhancement paragraphs

―true‖ and sentenced appellant to life imprisonment. See id. § 12.42(d) (West Supp.

2010). By two issues, appellant contends: (1) the evidence was insufficient to establish

the corpus delicti of the DWI offense, i.e., that he was the person operating the motor
vehicle; and (2) the evidence was legally insufficient to support his conviction. We

affirm.

                                          I. BACKGROUND1

A. State’s Evidence

1. Robert Layman

          Robert Layman, an officer with the Montgomery County Sheriff’s Office, was the

first officer to arrive at the scene of a two-car accident in the New Caney area of

Montgomery County, Texas. Appellant was sitting on the back tailgate of his pickup

truck. Appellant’s speech was ―extremely slurred,‖ and Officer Layman had difficulty

understanding him. When Officer Layman approached him, appellant said he ―was

ready to go to jail.‖ On cross-examination, Officer Layman stated that he identified the

driver of the other vehicle and secured the scene. Officer Layman was at the end of his

shift; other officers arrived to conduct the investigation.

2. Brian Ihnen

          Brian Ihnen, a trooper with the Texas Department of Public Safety, testified that

when he arrived at the scene, he spoke to the other officers. He also spoke to Ronald

Penny, a passenger in the vehicle that struck appellant’s truck. Penny said his wife,

later identified as Wanda Medford, was driving; appellant pulled out of a driveway, and

Medford’s vehicle struck appellant’s truck. Penny told Trooper Ihnen that appellant

appeared to be intoxicated.          Trooper Ihnen interviewed appellant but had difficulty

understanding him because his speech was ―slurred and mumbly.‖                         Appellant told

Trooper Ihnen that he was backing out of his driveway and ―[s]omebody hit [his] ass.‖

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          This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).

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Trooper Ihnen asked appellant to submit to field sobriety tests because appellant’s

speech was slurred, he was unsteady on his feet, and his breath smelled of alchohol.

Appellant told Trooper Ihnen he had been drinking ―everything‖ for three days.

Appellant said he did not want to perform a field sobriety test because his knees hurt

and he was too old. Appellant told Trooper Ihnen that his speech was slurred because

he had a neck injury. He also told Trooper Ihnen that he knew he was going to jail.

Appellant was arrested for driving while intoxicated. Appellant refused to take a breath

test. After conducting field sobriety tests on Medford, Trooper Ihnen also arrested her

for driving while intoxicated.

       On cross-examination, Trooper Ihnen said that although he did not conduct field

sobriety tests on Penny, he believed Penny was intoxicated.          Trooper Ihnen also

testified that Penny gave several versions of events and was trying to shift blame for the

accident away from himself and Medford.

       On re-direct, Trooper Ihnen said that he concluded that appellant was driving the

truck because: (1) appellant stated that he was backing out of the driveway when he

was hit; (2) appellant stayed on the scene with his truck; and (3) the truck was

registered to appellant.

3. Ronald Penny

       Penny testified that as he and his wife rounded a corner, a vehicle appeared ―out

of nowhere‖ in the middle of the highway. Penny testified that the truck did not have its

lights on. According to Penny, appellant had three passengers in the truck when it was

hit, but when the collision occurred, they jumped out of the truck and ran. Penny saw

appellant exit the truck from the driver’s side.     Penny said when he approached

appellant after the accident, appellant kept saying he was sorry. Penny testified that
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appellant appeared to be ―drunk‖ because he was ―[s]taggering around incoherent.‖

Penny stated that Medford had been drinking but ―was driving fine.‖ Penny said he was

not intoxicated the night of the accident because he does not drink.

         On cross-examination, Penny admitted that he initially told the officers that his

son was driving the vehicle; he then changed his story and said that Medford was

driving. Penny stated he was not driving because his license had been suspended.

Penny testified that appellant and three other passengers were all in the front seat of

appellant’s truck when the collision occurred. Because the passenger side was ―bashed

in,‖ all of the occupants exited from the driver’s side of the truck.        When Penny

approached the truck after the collision, three of the passengers ―took off running‖ and

only appellant remained. Penny stated that he did not see appellant driving the truck

and could not say ―for sure‖ that he was driving.

4. Joseph Sclider

         Joseph Sclider, a lieutenant in the communications division of the Montgomery

County Sheriff’s Office, identified State’s Exhibit 4, a DVD of the 911 call related to the

accident, and State’s Exhibit 5, the 911 dispatcher’s call notes related to the accident.

B. Defense Evidence

         After the State rested and prior to the presentation of testimony by defense

witnesses, the trial court permitted appellant to present a voice exemplar, by which

appellant read several paragraphs from the court’s rules governing courtroom conduct.

1. Elizabeth Swindle

         Elizabeth Swindle has known appellant through mutual friends for about six

years.     His speech has always been slurred, and she sometimes has difficulty

understanding him. Swindle attended a barbeque held at the home of appellant’s next-
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door neighbor. Appellant was at the barbeque in the afternoon and evening. Swindle

testified that appellant drank ―[n]o more than three or four‖ beers throughout the day and

evening. Swindle did not think appellant appeared to be intoxicated.             Swindle saw

appellant pull out of the driveway. Appellant’s truck was parked in the driveway with the

front of the truck facing the street; he pulled out slowly, but the truck hit a pothole next to

the driveway and stalled in the middle of the road. Swindle did not see the collision but

heard a ―huge crash.‖ Swindle did not see appellant exit the vehicle but saw him sitting

on the tailgate after the collision. Appellant appeared to be ―dazed‖ after the accident.

       On cross-examination, Swindle testified that she knew approximately how many

beers appellant consumed at the barbecue because she sat next to him and brought

him beer from the cooler because he could not get up and walk to the cooler. Swindle

stated that even when appellant is in his normal non-intoxicated state, he ―has trouble

walking‖ and his speech is ―slurry and jumbly.‖ Swindle did not see appellant in the

driver’s seat the night of the accident but did see the truck leave the driveway. Swindle

has never seen appellant drive. Generally, he relies on others to drive him places.

Swindle drives him to the grocery store on a regular basis.

2. Bradley Henderson

       Bradley Henderson testified that he has known appellant for twenty-five years

and has been his next-door neighbor for five years.            Henderson stated that after

appellant suffered a neck injury, his speech has been slurred and it is difficult to

understand him. Appellant also has difficulty standing for long periods and moves ―like

an old man.‖     He testified that appellant does not drive.       Appellant’s truck was in

Henderson’s driveway because they had used appellant’s truck to jump-start the battery

in Henderson’s truck.     Henderson saw appellant drink ―two or three beers‖ at the
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barbeque. Appellant did not appear to be intoxicated. Henderson did not witness the

accident. He saw appellant sitting on the back of the truck after the accident.

3. Larry Chmiel

       Larry Chmiel testified that he lives next door to appellant and has known him for

approximately eighteen years. According to Chmiel, appellant is hard to understand

and is not very physically fit. Appellant gets around using a riding lawn mower. Chmiel

did not see the collision but heard the crash and ran out to check on appellant. Chmiel

stated that appellant was conscious but was unable to respond. Before the accident,

Chmiel saw appellant around 11:30 p.m., and he did not appear intoxicated. Chmiel

heard appellant’s truck leaving and heard it stall. The back window of appellant’s truck

shattered as a result of the collision.

       On cross-examination, Chmiel testified that appellant does not drive.        When

Chmiel approached appellant’s truck after the accident, appellant was in the driver’s

seat of the truck.

4. Nancy Rector

       Rector testified that appellant is her younger brother. In 1995, he slashed his

own throat with a razor blade. Since that injury, it is difficult to understand him and his

speech has not improved. Rector takes appellant to doctor’s appointments because he

does not drive. Appellant had surgery on one of his knees.

                                     II. CORPUS DELICTI

       By his first issue, appellant contends that the evidence was insufficient to

establish the corpus delicti of the DWI offense, i.e., that he was the person driving the

truck at the time of the accident.



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       The rule of corpus delicti requires that some evidence exist outside of an extra-

judicial confession which, considered alone or in connection with the confession, shows

that the crime actually occurred. Salazar v. State, 86 S.W.3d 640, 644–45 (Tex. Crim.

App. 2002). While the State may not rely solely on the defendant's own extrajudicial

confession to establish the corpus delicti of the offense, it need only present some

evidence to corroborate the confession and the confession itself may be used to aid in

the establishment of the corpus delicti. Zavala v. State, 89 S.W.3d 134, 137 (Tex.

App.—Corpus Christi 2002, no pet.); Turner v. State, 877 S.W.2d 513, 515 (Tex. App.—

Fort Worth 1994, no pet.). To be sufficient, the corroborating evidence need only permit

a rational finding of guilt beyond a reasonable doubt when considered in conjunction

with the extrajudicial confession. Turner, 877 S.W.2d at 515. The corpus delicti of

driving while intoxicated is that someone drove or operated a motor vehicle in a public

place while intoxicated. Zavala, 89 S.W.3d at 137 (citing Threet v. State, 250 S.W.2d

200, 200 (Tex. Crim. App. 1952)).

       Appellant argues that ―there is simply no evidence to corroborate his alleged

extra-judicial confessions to the corpus delicti of operating the vehicle at the time of the

accident.‖ We disagree.

       While neither of the investigating officers saw appellant driving the truck, there

was other corroborating evidence from which the jury could draw a reasonable

inference that appellant was the driver. See Laster v. State, 275 S.W.3d 512, 522–23

(Tex. Crim. App. 2009) (holding a factfinder may draw reasonable inferences from the

evidence and choose which inference is most reasonable). Based on the corroborating

evidence consisting of appellant’s presence at the scene, the fact that appellant was the

registered owner of the truck and testimony that he was the owner of the truck,
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evidence that appellant told Penny he was sorry after the accident, and Chmiel’s

testimony that he saw appellant in the driver’s seat immediately after the accident, the

jury could rationally find, beyond a reasonable doubt, that appellant was the driver of the

truck at the time of the accident. See Zavala, 89 S.W.3d at 137 (finding evidence that

defendant was purchasing and had taken possession of the vehicle was sufficient

corroboration of his extrajudicial confession); Folk v. State, 797 S.W.2d 141, 144 (Tex.

App.—Austin 1990, pet. ref’d) (finding evidence that wrecked vehicle was registered to

a person with whom the defendant lived was sufficient to corroborate his admission that

he was driving the vehicle); Fancher v. State, 319 S.W.2d 707, 708 (Tex. Crim. App.

1958) (holding that defendant’s presence at scene of accident and ownership of vehicle

were sufficient to corroborate extrajudicial confession).         We conclude that the

corroborating evidence was sufficient to establish that appellant was the person

operating the truck at the time of the accident. We overrule appellant’s first issue.

                                  III. LEGAL SUFFICIENCY

       By his second issue, appellant contends the evidence is legally insufficient to

support his DWI conviction. Specifically, he challenges the sufficiency of the evidence

to establish that he was the person operating the truck at the time of the accident.

       The court of criminal appeals has held that there is ―no meaningful distinction

between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-

sufficiency standard‖ and that the Jackson standard ―is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App.

2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly,
                                             8
we review claims of evidentiary sufficiency under ―a rigorous and proper application of

the Jackson standard of review.‖ Id. at 906–07, 912. Under the Jackson standard, ―the

relevant question is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.‖ Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d

at 898–99 (characterizing the Jackson standard as: ―Considering all of the evidence in

the light most favorable to the verdict, was a jury rationally justified in finding guilt

beyond a reasonable doubt‖).

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). ―Such a charge [is] one that accurately 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 liability, and adequately describes

the particular offense for which the defendant was tried.‖ Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).

       A person commits the offense of driving while intoxicated if (1) the person (2) is

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

ANN. 49.04(a). Appellant challenges the sufficiency of the evidence establishing the first

and third elements: that he was the person that was operating the truck at the time of

the accident.

       No witnesses testified that they saw appellant operating the truck at the time of

the accident. However, the following evidence established that appellant was operating

the truck when the accident occurred: (1) Trooper Ihnen’s testimony that appellant said
                                            9
he was backing out of his driveway and ―[s]omebody hit [his] ass‖; (2) Trooper Ihnen

concluded appellant was the operator of the truck because of appellant’s statement, the

fact that appellant stayed at the scene with the truck, and the truck was registered to

appellant; (3) Penny’s testimony that immediately after the accident, appellant said he

was sorry; and (4) Chmiel’s testimony that when he approached the truck immediately

after the accident, appellant was sitting in the driver’s seat. ―Circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.‖ Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). We hold that the evidence is legally sufficient to show that

appellant was operating the truck at the time of the accident. We overrule his second

issue.

                                       IV. CONCLUSION

         We affirm the trial court’s judgment.


                                                      DORI CONTRERAS GARZA
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
29th day of August, 2011.




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