Opinion issued June 25, 2013




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00078-CR
                           ———————————
                          DON QUIROZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



               On Appeal from the County Court at Law No. 2
                         McLennan County, Texas
                    Trial Court Case No. 20110260CR2



                         MEMORANDUM OPINION

      A jury convicted Don Quiroz of driving while intoxicated. 1 The trial court

assessed punishment at 120 days’ confinement and a $500 fine. In a single issue,

1
      TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2012).
Quiroz contends that the evidence is legally insufficient to prove that he operated a

vehicle at a time when he was intoxicated. We affirm the trial court’s judgment. 2

                                     Background

      On the evening of June 26, 2010, Quiroz was traveling on Interstate 35 to

visit his sister when a tire on his pickup truck blew out. He took the first exit,

stopped to examine the tire, decided to drive a short distance farther, and

eventually stopped on the roadside near a dollar store in Bruceville-Eddy. Quiroz

testified that he had a six-pack of beer and a small bottle of tequila with him before

he arrived at the store.

      Officer D. Edwards, of the Bruceville-Eddy Police Department at the time of

Quiroz’s arrest, saw Quiroz’s truck parked on the road at the dollar store location

at approximately 10:30 p.m. Edwards testified that he was watching “that

intersection” on that night, and had been through the intersection a few minutes

earlier and “there was no vehicle there.” Approximately three minutes later, after

he circled the block and went through the intersection again, Quiroz’s truck was

there. Edwards did not see Quiroz arrive at that location. He noticed the truck

because of the time; “we try to check out those vehicles that hour of night, just to

2
      Originally appealed to the Tenth Court of Appeals, this case was transferred to this
      Court by order of the Texas Supreme Court pursuant to its docket equalization
      efforts. See Misc. Docket No. 12-9008 (Tex. Jan. 10, 2012); see also TEX. GOV’T
      CODE ANN. § 73.001 (West 2013).


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make sure that things are okay and everybody is safe.” When Edwards first saw the

truck, Quiroz was sitting in the driver’s seat with the driver’s side door closed.

Edwards testified that the keys were in the ignition, but the truck was not running.3

The passenger-side front tire was “totally disintegrated,” and the rim was dented as

if Quiroz had been driving on it for several miles.

       Edwards started recording Quiroz with his in-dash camera when Quiroz got

out of the truck. The video was admitted into evidence, without objection, and

played before the jury. As Edwards testified, the video showed Quiroz getting out

of the truck, walking to the tailgate, and standing there. Edwards described Quiroz

as “a little droggy.” His “eyes were already bloodshot, he was already sweating,

and the alcohol was coming all about him.” Edward testified, and the video shows,

that Quiroz carried a bottle that he had retrieved from the truck. Edwards described

the bottle as “a whiskey bottle,” and testified that a little under half the alcohol

remained in the bottle. Edwards also observed Quiroz with a beer can in his hand.

      When Edwards first asked Quiroz what he had to drink, Quiroz answered

that he had nothing to drink. The second time Edwards asked the question, Quiroz

answered that he had been parked there for twenty minutes. Quiroz later said that

he had been parked there for three hours to three-and-a-half hours. When Edwards

stated “No, you haven’t been there for that long,” Quiroz answered “No, I

3
      On cross-examination, Edwards testified that his written report did not state that
      the keys were in the ignition.
                                          3
haven’t.” Edwards also testified that, at one point in the video, Quiroz stated “that

he had been sitting on the side of the road about a half mile down [from the dollar

store] for the past three hours.”

      Quiroz’s sister arrived at the dollar store at approximately the same time that

Edwards approached Quiroz. Edwards testified that she said that Quiroz was lost,

was on the highway, and was stranded in Mother Neff Park, and that the video

showed Quiroz stating that his sister called him and told him to meet her at the

dollar store location. Edwards also testified that Quiroz’s sister stated on the video

that Quiroz “was at Mother Neff Park,” which other evidence indicated “was way

the other direction away from” the dollar store location.

      Edwards testified he and a second officer searched the truck and the

surrounding area. They found an unopened beer can with the plastic six-pack ring

around it, the open can that Quiroz had been holding, the bottle that he took from

the truck, and diabetes medication. They did not find any empty beer cans.

      According to Edwards, Quiroz appeared to be intoxicated based on the way

he exited his vehicle, “the alcohol that was coming off of his breath and off of his

person,” and his aggressive manner. Edwards stated, based on his training and

experience, that it would take more than a minute or two for person to show signs

of intoxication after consuming alcohol. Quiroz refused to perform field sobriety

tests. Quiroz testified that he told Edwards, “you can give me a Breathalyzer,” but

                                          4
“you can see also how much I’ve been consuming here.” A blood sample taken

that night showed that Quiroz’s blood alcohol concentration was .21.

      Edwards further testified that, in his opinion, Quiroz was operating his

vehicle shortly before he got out of his truck. Edwards based his opinion on seeing

Quiroz in the driver’s seat with the keys in the vehicle. Edwards, however, did not

see Quiroz operate the truck.

      Quiroz testified that he was at the dollar store for a long period of time

before Edwards arrived. According to Quiroz, his tire blew out on Interstate 35 at

approximately 8:00 p.m. He then took the first exit and stopped at the side of the

road to examine the tire. The tread was completely off the tire, but it still had air.

He decided to drive farther and, when “the air just came out of the tire,” he parked

at “the first right-hand side of the road.” He disagreed with Edwards’s testimony

that he was only at the dollar store location for two to three minutes. He explained:

      No, that’s—that’s very not true. The first thing when I—when I
      stopped, I got out of the driver’s seat, and I went to the back of my
      truck. And I started searching out for a tire or a jack, which in both
      respects I couldn’t find neither one. There was a tire in there, but you
      could plainly see it wasn’t to that vehicle. . . . But anyway, I didn’t
      have a tire or a jack. So I got out of the vehicle, a little upset, and just
      sat myself down and popped me open a beer.

He also testified that the bottle shown in the video and from which he drank was

not a whiskey bottle but was a Jose Cuervo tequila bottle and that he consumed the

alcohol missing from that bottle “in Bruceville-Eddy at that spot.”


                                           5
      He testified that he sat on the truck tailgate, listening to music and waiting

for his sister at the dollar store location. During that time, he drank four sixteen-

ounce beers and whatever was missing from the tequila bottle. He did not start,

move, or operate his truck after he started drinking, and he had not had anything to

drink before arriving at the dollar store. He further testified that the keys were in

the truck bed and not in the ignition, and that the door to the vehicle was open

when Edwards arrived. According to Quiroz, he went to the front of the truck only

to change a CD and had rigged the radio to work without the keys in the ignition.

      Quiroz also testified that immediately after the blowout, he called his sister

so she could come assist him and that she needed directions. Quiroz’s sister

testified that, when he first called about 8:40 p.m., he was in front of a dollar store

and that they spoke several times that evening because she did not know the area.

On cross-examination, she conceded that she could not see where Quiroz was

when they talked on the phone and that he could have been up the road from the

dollar store and driven from that location to meet her at the dollar store.

                            Sufficiency of the Evidence

      In a single issue, Quiroz contends that the evidence is legally insufficient to

support the jury’s verdict that he was driving while intoxicated. A person commits

the offense of driving while intoxicated if the person (1) was intoxicated (2) while

operating a motor vehicle (3) in a public place. See TEX. PENAL CODE ANN.


                                           6
§ 49.04(a) (West Supp. 2012). Quiroz does not contest that he was intoxicated or in

a public place when arrested. He asserts that the State failed to show that he

operated a motor vehicle while intoxicated and failed to link his operation of the

vehicle to a time when he was intoxicated. We disagree.

A.    Standard of Review

      Under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307,

318–19, 99 S. Ct. 2781, 2789 (1979), evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

offense was proven beyond a reasonable doubt. See Jackson v. State, No. 10-12-

00285-CR, 2013 WL 563323, at *3 (Tex. App.—Waco Feb. 14, 2013, no pet.)

(mem. op.) (setting out standard for sufficiency-of-evidence review under Jackson

v. Virginia). This standard gives full play to the responsibility of the factfinder to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. 99 S. Ct. at

2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see also

Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008) (stating that jury is

sole judge of credibility of witnesses and weight to give their testimony). An

appellate court presumes that the factfinder resolved any conflicts in the evidence

in favor of the verdict and defers to that resolution, provided the resolution is


                                          7
rational. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; see Clayton, 235 S.W.3d at

778 (stating that reviewing court “presume[s] that the factfinder resolved the

conflicts in favor of the prosecution and therefore defer[s] to that determination.”).

      In reviewing the record, direct evidence and circumstantial evidence are

treated equally; circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778. In determining the sufficiency of the evidence, a

reviewing court examines “whether the necessary inferences are reasonable based

upon the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict.” Id. (quoting Hooper v. State, 214 S.W.3d 9,

16–17 (Tex. Crim. App. 2007)). Finally, the “cumulative force” of all the

circumstantial evidence can be sufficient for a jury to find the accused guilty

beyond a reasonable doubt, even if every fact does not “point directly and

independently to the guilt of the accused.” Powell v. State, 194 S.W.3d 503, 507

(Tex. Crim. App. 2006).

B.    Quiroz’s operation of a motor vehicle while intoxicated

      The State was required to show that Quiroz was intoxicated at the time he

operated a vehicle. The Court of Criminal Appeals has concluded that “operation

does not necessarily involve driving” and that “[t]o find operation . . . the totality

of the circumstances must demonstrate that the defendant took action to affect the


                                          8
functioning of his vehicle in a manner that would enable the vehicle’s use.” Denton

v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995); see Hearne v. State, 80

S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding that

reviewing court looks at totality of circumstances surrounding entire incident in

question to ascertain whether operation occurred); Bailey v. State, No. 10-06-

00297-CR, 2008 WL 2687094, at *2 (Tex. App.—Waco July 9, 2008, no pet.)

(mem. op., not designated for publication) (stating that “we must use a totality of

the circumstances approach to determine whether [defendant] was operating her

motor vehicle while intoxicated”). Because “operating a motor vehicle” is broadly

defined, any action that is more than mere preparation toward operating the vehicle

is “an ‘action to affect the functioning of [the] vehicle in a manner that would

enable the vehicle’s use.’” Strong v. State, 87 S.W.3d 206, 216 (Tex. App.—Dallas

2002, pet. ref’d), abrogated on other grounds, Pfeiffer v. State, 363 S.W.3d 594

(Tex. Crim. App. 2012) (quoting Barton v. State, 882 S.W.2d 456, 459 (Tex.

App.—Dallas 1994, no pet.)).

      According to Quiroz, the only evidence of operating a vehicle at the time of

the stop—i.e., the time when he was intoxicated—were the keys in the ignition,

and this evidence shows only “mere preparation” to operate his truck. He also

asserts that the only evidence of the time of alcohol consumption was his testimony

that he drank the beer and tequila “while laid up on the side of the road.” The State,

                                          9
therefore, failed to show that, during the time he was operating the truck—before

arriving at the dollar store location—he was intoxicated.

      In order to support a finding that a defendant was intoxicated while

operating a motor vehicle, there must be a temporal link between the defendant’s

intoxication and his driving. See Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.

Crim. App. 2010); 4 Warren v. State, 377 S.W.3d 9, 14 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d). Such a conviction “can be supported solely by

circumstantial evidence.” Kuciemba, 310 S.W.3d at 462 (citing Guevara v. State,

152 S.W.3d 45, 49 (Tex. Crim. App. 2004)); see Warren, 377 S.W.3d at 14 (stating

that finding can be supported by direct or circumstantial evidence). “Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor.”

Guevara, 152 S.W.3d at 49.

      Quiroz testified that he drank four sixteen-ounce beers and some tequila that

evening and admitted that he was intoxicated. Quiroz also admitted to driving his

vehicle to the location where Officer Edwards found him in his truck. Edwards’s
4
      Quiroz cites Johnson v. State, 517 S.W.2d 536 (Tex. Crim. App. 1975), to support
      the necessity of a link between operation of a vehicle and intoxication. He
      suggests that proof of that link “cannot be supplied by inference and supposition,”
      citing Sharp v. State, 296 S.W.2d 932, 933 (Tex. Crim. App. 1957), and Gamboa
      v. State, 481 S.W.2d 423, 426 (Tex. Crim. App. 1972). The Kuciemba Court,
      however, emphasized that circumstantial evidence may establish this necessary
      link. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (citing
      Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)); see Scillitani v.
      State, 343 S.W.3d 914, 918 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
      (concluding that Kuciemba court impliedly overruled Johnson because analysis in
      Kuciemba was contrary to analysis in Johnson).
                                          10
testimony and the video support a jury finding of a temporal link between Quiroz’s

intoxication and his driving. Edwards found Quiroz’s vehicle stopped at the side of

the road at approximately 10:30 p.m. and testified that Quiroz was sitting in the

driver’s seat with the keys in the ignition. According to Edwards’s testimony, the

vehicle had been at that location for no more than three minutes. At the time of the

arrest, Quiroz gave several different answers when asked how long he had been at

the dollar store location. At one point, he agreed with Edwards that he had not been

there for three hours and also stated that he had been sitting about a half mile down

the road for three hours. The evidence also indicates that Quiroz’s sister could not

find his location, and had called Quiroz and told him to meet her.

      Additionally, Officer Edwards testified that he observed Quiroz leave the

truck with a bottle that he had retrieved from the truck. See Warren, 377 S.W.3d at

15 (stating that presence of open container of alcohol in vehicle driven by

defendant is some evidence he was drinking while driving); see also Kimball v.

State, 24 S.W.3d 555, 559–60 (Tex. App.—Waco 2000, no pet.) (considering

presence of open container of beer in determining whether defendant was

intoxicated while driving). When Edwards first approached Quiroz, his eyes were

bloodshot “and the alcohol was coming all about him.” Finally, the blood sample

taken that night showed that Quiroz’s blood alcohol concentration was .21. See

Kuciemba, 310 S.W.3d at 463 (stating that blood alcohol level of more than twice

                                         11
legal limit of .08 supported inference that defendant “had been intoxicated for quite

a while”).

      The evidence, viewed in the light most favorable to the verdict, is sufficient

to support the jury finding that Quiroz was driving while intoxicated. First, and

most importantly, the jury could have accepted Officer Edwards’s testimony that

Quiroz arrived on the scene no more than three minutes before Edwards arrived.

Because it was undisputed that Quiroz was intoxicated at the time, it would be

reasonable to conclude that he had been intoxicated three minutes earlier when he

drove to the dollar store. Second, the jury could have resolved the conflicts in the

testimony and reasonably concluded that the following series of events occurred

that night: Quiroz pulled over to the side of the road about a half-mile from the

dollar store around 8:40 p.m. when he called his sister; he remained there drinking

while his sister drove to the area and tried to locate his vehicle; he then drove to the

dollar store around 10:30 p.m. to make it easier for her to locate him and had been

at the store for only a few minutes before Edwards arrived. The jury may have

reasonably inferred that Quiroz was intoxicated when he last operated his truck to

drive it the last half mile to the dollar store. Viewing the evidence in the light most

favorable to the verdict, we conclude that the evidence is legally sufficient to

support the conviction.




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                                    Conclusion

       Having overruled Quiroz’s issue on appeal, we affirm the judgment of the

trial court.



                                                Harvey Brown
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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