                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                     No. 07-18-00122-CR
                                 ________________________

                              STEVEN LEHNERT, APPELLANT

                                                V.

                              THE STATE OF TEXAS, APPELLEE



                                 On Appeal from County Court
                                      Terry County, Texas
                    Trial Court No. 30384; Honorable J.D. Wagner, Presiding


                                          January 23, 2020

                                MEMORANDUM OPINION
                            Before PIRTLE, PARKER, and DOSS, JJ.


      Following a plea of not guilty, Appellant, Steven Lehnert, was convicted by a jury

of driving while intoxicated, a Class B misdemeanor.1 Punishment was assessed by the

trial court at 180 days confinement and a $2,000 fine.          By a sole issue, Appellant


      1   TEX. PENAL CODE ANN. § 49.04(b) (West Supp. 2019).
challenges his conviction by arguing that the evidence is insufficient to show he was

operating a motor vehicle while intoxicated. We affirm.


      BACKGROUND

      On a cold winter night in January 2016, Elias Garcia was driving with his family on

a highway when he observed a pickup just ahead of him driving erratically. He called

911. According to Garcia, the pickup was taking up too much of the highway to allow him

to safely pass. Eventually, the driver of the pickup slowed down and pulled onto the

shoulder of the highway and Garcia continued on his way.


      Garcia testified that within seconds of calling 911, he observed a patrol vehicle

approaching from the opposite direction. In his rearview mirror, he saw the patrol vehicle

turn around and stop behind the pickup he had just passed. During cross-examination,

Garcia acknowledged that he did not see who was driving the pickup.


      Department of Public Safety Trooper Campbell testified he was dispatched on a

911 call about a reckless driver in a red pickup. While responding, he noticed vehicle

lights ahead and then observed the lights turn off. He traversed the median and stopped

behind a pickup that matched the description from the 911 caller. He saw a male urinating

behind the pickup. The male subject, later identified as Appellant, then used a key fob to

activate the pickup’s lights. The trooper heard the pickup’s engine start and observed a

female, Appellant’s fiancée, on the passenger’s side of the pickup.


      Appellant walked to the rear of the pickup to meet Trooper Campbell and they

engaged in a conversation inside the trooper’s vehicle to escape the cold. According to


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Trooper Campbell, Appellant assured him that everything was fine. Trooper Campbell

asked Appellant if he had been driving from Lubbock and Appellant answered that he

had.


       Trooper Campbell smelled alcohol on Appellant’s breath and noticed that his

speech was slurred. The trooper asked to perform field sobriety tests and Appellant

complied.        Based on Appellant’s performance, Trooper Campbell concluded that

Appellant was intoxicated. Appellant refused to give a breath or blood sample which

required Trooper Campbell to obtain a search warrant to draw Appellant’s blood.2

Appellant was transported to a hospital to have his blood sample taken and was later

transported to jail. He was charged with driving while intoxicated. During the punishment

phase of trial, evidence of Appellant’s criminal history was introduced. He was sentenced

to 180 days confinement and assessed a $2,000 fine.


       STANDARD OF REVIEW—SUFFICIENCY OF THE EVIDENCE

       The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d

854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). We consider all of the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, any



       2   A forensic scientist testified at trial that Appellant’s blood alcohol concentration was 0.146.


                                                        3
rational juror could have found the essential elements of the crime beyond a reasonable

doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).


       We give deference to the responsibility of the trier of fact to fairly resolve conflicts

in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each

fact need not point directly and independently to the appellant’s guilt, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction. Id.


       We compare the elements of the offense as defined by a hypothetically correct jury

charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim.

App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In our

review, we must evaluate all of the evidence in the record, both direct and circumstantial

and whether properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume

the fact finder resolved the conflicts in favor of the prosecution and defer to that

determination. Jackson, 443 U.S. at 326.


       APPLICABLE LAW

       The State was required to prove that Appellant was operating a motor vehicle in a

public place while intoxicated. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2019).

Driving while intoxicated may be supported by circumstantial evidence if there is a

temporal link between an accused’s intoxication and his driving. See Kuciemba v. State,



                                              4
310 S.W.3d 460, 462 (Tex. Crim. App. 2010). See also Smithhart v. State, 503 S.W.2d

283, 285 (Tex. Crim. App. 1973).


       ANALYSIS

       At trial and on appeal, Appellant does not dispute that he was intoxicated in a

public place; instead, by his sole issue, he challenges whether the evidence showed

beyond a reasonable doubt that he was “operating” the vehicle while he was intoxicated.

The statute does not define “operate” but 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 [the] vehicle in a manner that would

enable the vehicle’s use.” See Kirsch v. State, 357 S.W.3d 645, 650-51 (Tex. Crim. App.

2012). The State was required to present evidence of a temporal link between Appellant’s

driving and his intoxication sufficient to determine the critical issue—whether there was

evidence from which a reasonable fact finder could have concluded that, at the time of

the driving in question, whenever that might have been, Appellant was intoxicated. See

Zavala v. State, 89 S.W.3d 134, 139 (Tex. App.—Corpus Christi 2002, no pet.). We note

that in making that determination juries are permitted to draw reasonable inferences from

evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).


       During his testimony, Trooper Campbell opined that Appellant was operating the

pickup while he was intoxicated. He based his opinion on the following observations:


   •   he saw the headlights of the pickup when it pulled onto the shoulder;

   •   after Appellant urinated behind the pickup, he walked to the driver’s side;



                                            5
   •   Appellant had the key fob in his hand;

   •   Appellant answered affirmatively when asked if he was driving; and

   •   neither Appellant nor his female passenger indicated that she had been driving.


       During cross-examination, Trooper Campbell admitted that the pickup was parked

when he came upon it and that he never observed Appellant operating it. Despite defense

counsel’s attempt to establish that no one could place Appellant behind the wheel of the

pickup while intoxicated, Trooper Campbell was confident that when he had asked

Appellant if he had driven from Lubbock, Appellant answered affirmatively.


       Appellant did not testify at trial but his fiancée did pursuant to a subpoena from the

State. At the time of Appellant’s arrest and at the time of trial, she and Appellant were

living together. She claimed that on the night in question, they had been drinking at a

friend’s house. They argued over the amount of alcohol Appellant had consumed and

decided to leave and return home to Brownfield. She claimed she was driving the pickup

and that she had stopped on the shoulder of the highway to relieve herself. She explained

that Appellant was in possession of the key fob when Trooper Campbell arrived because

it was not uncommon for her to leave Appellant on the side of the road when they argued.

So, to avoid being stranded, Appellant had taken the key fob when he went behind the

pickup to urinate.


       Appellant’s fiancée further testified that when she saw the trooper’s vehicle

approaching, she moved to the passenger’s side of the pickup because she too had been




                                             6
drinking and did not “want to get in trouble.”3 When asked if she disclosed to the trooper

that she was the driver, she responded that no one had asked so she did not offer that

fact.


            The fiancée acknowledged that her statements to Trooper Campbell on the night

in question were contrary to her testimony at trial. At the time of the incident, she told

Trooper Campbell she had asked Appellant to stop so she could relieve herself and had

also asked him to reduce his speed.4


            The conflicting testimony of Trooper Campbell and Appellant’s fiancée was within

the province of the jury to resolve in favor of the prosecution. Appellant himself answered

affirmatively when Trooper Campbell asked him if he was driving from Lubbock. Also,

based on Garcia’s testimony and Trooper Campbell’s testimony, the State established a

temporal link between Appellant’s intoxication and the operation of his pickup. Trooper

Campbell’s immediate response to the 911 call and his observation of the pickup’s

headlights as it left the highway established that Appellant was “operating” his pickup.

See generally Ubesie v. State, 379 S.W.3d 317, 377-78 (Tex. App.—Amarillo 2012, no

pet.). Appellant’s high blood alcohol concentration confirmed that he was intoxicated at

the time. Given the totality of the circumstances, the State satisfied its burden. We find




            3
          On the night in question, she told Trooper Campbell that she had asked Appellant to stop so she
could relieve herself because she had consumed too much tea.
            4   A video excerpt was played in which the fiancée is overheard saying, “I knew he was driving kind
of fast.”


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the evidence is sufficient to support Appellant’s conviction. Appellant’s sole issue is

overruled.


      CONCLUSION

      The trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                    Justice


Do not publish.




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