                                 NO. 07-09-00022-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                   MARCH 18, 2010


                           CARLOS MOLINA, APPELLANT

                                           v.

                          THE STATE OF TEXAS, APPELLEE


         FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY;

            NO. C-1-CR-07-218743; HONORABLE DAVID CRAIN, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, Carlos Molina, appeals his conviction for the offense of driving while

intoxicated. We affirm.


                                      Background


      On September 14, 2007, Austin police officers were called out to investigate a

suspicious vehicle in a cul-de-sac. When the police officers arrived, they observed

appellant asleep behind the wheel of the vehicle. The keys were in the vehicle’s ignition

and the car and radio were both on. Appellant was also in a position in the vehicle that
he was able to reach the brake pedal. 1      The police officers proceeded to wake up

appellant and, after conducting field sobriety tests, arrested him for driving while

intoxicated.


       At trial, the issue of contention was the definition of “operating.”    Both sides

agreed that appellant was not observed driving the vehicle, but they disagreed on

whether the evidence was sufficient to demonstrate that appellant “operated” the

vehicle.   After listening to appellant’s request for a directed verdict, the trial court

submitted the issue to the jury who proceeded to find appellant guilty of the offense.

Appellant appeals the sufficiency of the evidence.


                                    Legal Sufficiency

       When an appellant challenges both the legal and factual sufficiency of the

evidence, we are required to conduct an analysis of the legal sufficiency of the evidence

first and, then, only if we find the evidence to be legally sufficient, do we analyze the

factual sufficiency of the evidence.     See Clewis v. State, 922 S.W.2d 126, 133

(Tex.Crim.App. 1996). We review legal sufficiency by viewing the evidence in the light

most favorable to the verdict to determine if any rational fact finder could have found the

essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d

556, 562 (Tex.Crim.App. 2000). The conviction will be sustained unless it is irrational or

unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d

866, 867 (Tex.Crim.App. 1988). The fact finder is the sole judge of the credibility of the

witnesses and of the weight to be afforded their testimony. Barnes v. State, 876 S.W.2d
       1
          A video was admitted during the trial that showed the vehicle’s brake lights
flickering on or off during the investigation of this case.
                                            2
316, 321 (Tex.Crim.App. 1994). Reconciliation of conflicts and contradictions in the

evidence is within the fact finder’s province and is usually conclusive. See Van Zandt v.

State, 932 S.W.2d 88, 96 (Tex.App.–El Paso 1996, pet. ref’d).


       To establish the offense of driving while intoxicated, the State must prove the

defendant was intoxicated while operating a motor vehicle in a public place. TEX. PENAL

CODE ANN. § 49.04(a) (Vernon 2003). The statute does not, however, define the term

“operate.” See Barton v. State, 882 S.W.2d 456, 459 (Tex.App.–Dallas 1994, no pet.).

Operation of a motor vehicle is found when the totality of the circumstances

demonstrates that the defendant took action to affect the functioning of his vehicle in a

manner that would enable the vehicle’s use. See Denton v. State, 911 S.W.2d 388, 390

(Tex.Crim.App. 1995).


       Reviewing the evidence in the light most favorable to the verdict, we conclude

that the jury could have determine that the running vehicle, the flickering brake lights,

and the activated radio were indications that appellant had taken actions that affected

the functioning of the vehicle and, thus, was operating the vehicle prior to falling asleep.

Therefore, we conclude that the jury could have rationally found the essential elements

of the crime beyond a reasonable doubt. We overrule appellant’s first issue.


                                    Factual Sufficiency


       When an appellant challenges the factual sufficiency of the evidence supporting

his conviction, the reviewing court must determine whether, considering all the evidence

in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a

                                              3
reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).

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).         In performing a factual sufficiency

review, we must give deference to the fact finder’s determinations if supported by

evidence and may not order a new trial simply because we may disagree with the

verdict. See Watson, 204 S.W.3d at 417. As an appellate court, we are not justified in

ordering a new trial unless there is some objective basis in the record demonstrating

that the great weight and preponderance of the evidence contradicts the jury’s verdict.

See id. Additionally, an appellate opinion addressing factual sufficiency must include a

discussion of the most important evidence that appellant claims undermines the jury’s

verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).


       In this case, appellant argues that the State must show that appellant operated a

motor vehicle by demonstrating that he took action to affect the functioning of his

vehicle in a manner that would enable the vehicle’s use. See Denton, 911 S.W.2d at

39.   Appellant contends that this means that the court should have looked at whether

appellant “exerted personal effort upon his vehicle . . . for its intended purpose.” See Id.

at 389. Appellant contends that there is no evidence that appellant exerted any effort to

operate the vehicle for its intended purpose, i.e., for transportation. At most, appellant

contends that appellant was in the car listening to the radio. Although we may agree

with appellant that turning on the radio does not further the operation of the vehicle for

its intended purpose, we do not agree with appellant’s statement that turning the ignition

key and running the motor did not facilitate the operation of the vehicle beyond mere
                                             4
preparation.   A vehicle’s intended purpose is to provide transportation by mechanical

means which entails the ignition of the vehicle’s combustible engine. There simply is no

middle ground in what constitutes the commission of an operating a vehicle while

intoxicated offense. Any action would either not be more that mere preparation or it

would fall within the broad definition of “operating a motor vehicle.” Strong v. State, 87

S.W.3d 206, 215 (Tex.App.—Dallas 2002, pet. ref’d).        Therefore, since any person

intending to drive would first have to turn the key to start the car, we conclude that the

fact that the key was turned and the engine was running could be interpreted by the jury

as operating the vehicle. Though no one observed appellant start the vehicle, the fact

that appellant was the only person in the vehicle, in the driver’s seat, and able to

operate the brake lights is circumstantial evidence that the jury could have used in

determining the guilt of appellant. See Hooper, 214 S.W.3d at 14 (juries are permitted

to make reasonable inferences from the evidence).        Giving deference to the jury’s

determinations if supported by the evidence, we may not order a new trial even were we

to disagree with the verdict. See Watson, 204 S.W.3d at 417. We conclude that there

is no objective basis in the record demonstrating that the great weight and

preponderance of the evidence contradicts the jury’s verdict. See id. We overrule

appellant’s second issue.


                                       Conclusion

      Having overruled appellant’s issues, we affirm.


                                                Mackey K. Hancock
                                                     Justice
Do not publish.
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