                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 JAIME MARROQUIN,                                                 No. 08-12-00316-CR
                                                 §
                              Appellant,                             Appeal from the
                                                 §
 v.                                                           County Criminal Court No. 3
                                                 §
 THE STATE OF TEXAS,                                            of El Paso County, Texas
                                                 §
                              Appellee.                          (TC# 20120C009902)
                                                 §

                                           OPINION

       Jaime Marroquin appeals the trial court’s judgment convicting him of driving while

intoxicated (DWI) and sentencing him to 70 days’ in jail. In a single issue, Marroquin contends

the evidence is insufficient to support his conviction. We affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

       While on patrol, El Paso County Sheriff’s Deputy Gabriel Gamino encountered a pickup

truck stopped in the “middle of the road” during rush-hour traffic. Gamino parked his patrol car

six to eight feet behind the truck and activated the unit’s overhead lights. Marroquin stumbled out

of the truck, and the truck began rolling toward Gamino’s patrol car. Marroquin stumbled back

into the truck, put it in gear, and applied the brakes, stopping the truck from rolling back farther.

Marroquin then exited the truck and asked Gamino what he wanted. When Gamino asked
Marroquin why his truck was stopped in a lane of moving traffic, Marroquin responded that his

truck had run out of gas. While speaking to Marroquin, Gamino smelled a strong odor of alcohol

on Marroquin’s breath and body and noticed that Marroquin was slurring and mumbling his words,

was unsteady on his feet, and was sweating profusely. With Marroquin’s permission, Gamino

conducted several field sobriety tests. Marroquin exhibited all six clues of intoxication on the

horizontal gaze nystagmus test, seven of eight clues of intoxication on the walk-and-turn field test,

and all four clues of intoxication on the one-leg-stand test.

           Based on his observations and field testing, Gamino placed Marroquin under arrest for

DWI.        Following his arrest, Marroquin voluntarily submitted two breath samples on an

intoxilyzer machine. The samples—taken approximately one hour after Gamino encountered

Marroquin —showed Marroquin’s breath-alcohol level to be 0.216 grams of alcohol per 210 liters

of breath and 0.224 grams of alcohol per 210 liters of breath.

           The State charged Marroquin with misdemeanor DWI. See TEX.PENAL CODE ANN.

§ 49.04(a)(West Supp. 2013). At trial, the contested issue was whether Marroquin had operated

the truck while intoxicated, not whether he was intoxicated.1 Marroquin argued to the jury that

the State had not proved he was operating the truck. The jury was not swayed by Marroquin’s

argument and found him guilty.

                                   SUFFICIENCY OF THE EVIDENCE

           Marroquin contends the evidence is insufficient because the State failed to prove he was

operating the truck while intoxicated. We disagree.

                                                    Standard of Review

           The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99
1
    In his closing argument to the jury, Marroquin conceded he was intoxicated.
                                                           2
S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in

determining whether the evidence is sufficient to support a conviction. Brooks v. State, 323

S.W.3d 893, 894-95 (Tex.Crim.App. 2010). When reviewing the sufficiency of the evidence to

support a criminal conviction, we view the evidence in the light most favorable to the verdict to

determine whether, based on that evidence and reasonable inferences therefrom, a rational juror

could have found the essential elements of the offense beyond a reasonable doubt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at

2788-89.

        Under a legal sufficiency review, we may not substitute our judgment for that of the jurors,

who are the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given

to the evidence. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore

defer to the jurors’ resolution of these issues and to their responsibility to draw reasonable

inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S.

at 318-19, 99 S.Ct. at 2788-89. In resolving what the facts are and what reasonable inferences

may be drawn from them, the jurors may accept one version of the facts and reject another, and

they may reject any part of a witness’s testimony, even if uncontradicted. See Margraves v. State,

34 S.W.3d 912, 919 (Tex.Crim.App. 2000), overruled on other grounds, Laster v. State, 275

S.W.3d 512 (Tex.Crim.App. 2009); Henderson v. State, 29 S.W.3d 616, 623 (Tex.App.--Houston

[1st Dist.] 2000, pet. ref’d).

                                          Applicable Law

        A person commits DWI if he is intoxicated while operating a motor vehicle in a public

place. TEX.PENAL CODE ANN. § 49.04(a). Although the Texas Penal Code does not define the


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term “operating,” the Texas Court of Criminal Appeals has held that a person “operates” a vehicle

when the totality of the circumstances demonstrates that the person took action to affect the

functioning of his vehicle in a manner that would enable the vehicle’s use. Kirsch v. State, 357

S.W.3d 645, 650-51 (Tex.Crim.App. 2012); Denton v. State, 911 S.W.2d 388, 390

(Tex.Crim.App. 1995). A conviction for driving while intoxicated may be supported solely by

circumstantial evidence, which is as probative as direct evidence. Kuciemba v. State, 310 S.W.3d

460, 462 (Tex.Crim.App. 2010).

                                              Discussion

        Under the totality of the circumstances, the jury could have reasonably inferred from the

circumstantial evidence adduced by the State that Marroquin had been driving the truck, and

therefore operating it, when it ran out of gas. The truck was stopped “in the middle of the road”

during rush-hour traffic because, by Marroquin’s own admission, it had run out of gas.

Marroquin was inside the truck, and he was its only occupant. Significantly, the keys remained in

the truck’s ignition. As Marroquin stumbled out of the truck, the truck began rolling toward

Gamino’s patrol car. Marroquin stopped the truck by getting back in, putting the truck in gear,

and applying the brakes.

        Marroquin argues the State failed to prove he was operating a motor vehicle while

intoxicated because “there was no circumstantial evidence to show a temporal connection between

. . . his driving the car to where it rested, if he did[,] . . . and his intoxication.” In support of his

assertion, Marroquin directs our attention to the absence of “evidence . . . as to how long the truck

and/or [he] had been stopped at the scene.” We do not dispute that the State presented no direct

evidence establishing how recently the truck was driven or how much time elapsed between the


                                                   4
truck coming to rest and Gamino’s arrival. However, the State was not required to establish the

precise time of these events. Kuciemba, 310 S.W.3d at 462. Rather, the State was required to

show a temporal link between the defendant’s intoxication and his operation of a motor vehicle.

Id.   The State succeeded in doing so here.          The jury could have reasonably inferred that

Marroquin was found very shortly after his truck ran out of gas in a state of intoxication and in

control of his truck. As shown above, the truck was stopped in the middle of the road during

rush-hour traffic with Marroquin behind the wheel, it was not in park when Marroquin stumbled

out of it, and the keys were in the ignition. Additionally, Gamino testified that when he moved

Marroquin’s truck to the side of the road, he found two large cans of beer—one empty and the

other half-full and cold to the touch—inside the truck.

        Marroquin further argues that the State failed to prove he was operating a motor vehicle

while intoxicated because Gamino did not observe him driving, the truck’s engine was not

running, the truck was disabled for some unknown period of time, and “[plac]ing the disabled

vehicle into gear . . . [,]if he did[,] . . . was only an involuntary result of Gamino’s investigation . .

. .” But this argument is unpersuasive in light of our conclusion that the jury could have

reasonably inferred that Marroquin had been driving the truck, and therefore operating it, when he

ran out of gas and that he was intoxicated while doing so.

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

Marroquin operated a motor vehicle while intoxicated. See Hearne v. State, 80 S.W.3d 677, 680

(Tex.App.--Houston [1st Dist.] 2002, no pet.)(driver operated vehicle when found asleep at wheel

in moving lane of traffic); Freeman v. State, 69 S.W.3d 374, 376 (Tex.App.--Dallas 2002, no

pet.)(driver operated vehicle when found asleep with lights on, car in drive, and wheel resting


                                                    5
against curb of public street); see also Stagg v. Tex. Dep’t of Pub. Safety, 81 S.W.3d 441, 445

(Tex.App.--Austin 2002, no pet.)(concluding that probable cause existed that driver of vehicle

blocking lane of traffic with engine running and lights on had operated vehicle, noting that “[t]he

fact that the car was in the center of the street, not stopped at the curb, is significant”); Milam v.

State, 976 S.W.2d 788, 789 (Tex.App.--Houston [1st Dist.] 1998, pet. ref’d)(determining that

operation occurred despite driver being found asleep because engine was running, vehicle was in

gear, driver’s foot was on brake, and driver put car in reverse upon being awakened); Barton v.

State, 882 S.W.2d 456, 459-60 (Tex.App.--Dallas 1994, no pet.)(holding that driver who was

asleep at wheel with feet on clutch and brake, engine idling, and car in roadway protruding into

intersection, and who then proceeded to engage clutch and change gears upon being awakened by

police, operated vehicle).

       Marroquin’s issue is overruled.

                                          CONCLUSION

       The trial court’s judgment is affirmed.



March 28, 2014
                                               YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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