Affirmed and Opinion Filed January 23, 2017




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-16-00167-CR

                              JAMES BERNARD PACE, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 2
                                   Dallas County, Texas
                          Trial Court Cause No. MB14-58096-B

                               MEMORANDUM OPINION
                             Before Justices Lang, Brown, and Whitehill
                                    Opinion by Justice Whitehill
       Appellant was arrested for driving while intoxicated after he backed his car into a parked

vehicle. A jury found him guilty of the offense and the trial court sentenced him to 120 days in

jail, probated for twelve months, and a $500 fine.

       In a single issue, appellant now argues that the evidence is insufficient to support his

conviction because (i) in violation of the corpus delicti rule, his extrajudicial statement is the

only evidence that he was operating his vehicle; (ii) there is no temporal link between his

operation of the vehicle and his intoxication; and (iii) there is no evidence that he operated his

vehicle in a public place.

       We conclude that the evidence is sufficient to support appellant’s conviction because (i)

there was also evidence that the another person saw appellant operate his vehicle during and after

an accident; (ii) the circumstances suggested that the accident occurred in a public place; and (iii)
appellant’s state of intoxication post-accident would support an inference that he was intoxicated

when the accident occurred. We thus affirm the trial court’s judgment.

                                         I.     Background

       Officer Albert Chacon responded to a request for a DWI officer at 2600 Worthington

Street, a public location, between 12:15 and 12:30 a.m. early one morning. Appellant was

standing by his vehicle when Chacon arrived and told Chacon that he had backed into an

unoccupied vehicle. Appellant also said that he had consumed three beers and two cocktails that

night, and had his last drink at around 9:00 p.m.

       After speaking with the owner of the vehicle appellant backed into who was also at the

scene, interviewing appellant, and performing sobriety tests, Chacon arrested appellant for

driving under the influence.

       Additional testing, including an intoxilyzer test, was performed at the jail.             The

intoxilyzer results showed that appellant had blood alcohol concentrations of 0.102 at 2:07 a.m.

and 0.097 at 2:10 a.m.

       Appellant was charged by information and affidavit with driving under the influence, and

a jury found him guilty of that offense. The trial court sentenced him to 120 days in jail,

probated for twelve months, and a $500 fine.

                                              II. Analysis

       In a single issue, appellant argues that the evidence is insufficient to support his

conviction because (i) his extrajudicial statement is the only evidence that he was operating his

vehicle and therefore the corpus delicti rule is not satisfied; (ii) there is no temporal link between

his operating the vehicle and his intoxication; and (iii) there is no evidence that he operated his

vehicle in a public place. As discussed below, we disagree.




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A.     Standard of review and applicable law

       We review the sufficiency of evidence to support a conviction by viewing all of the

evidence in the light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979).          This standard gives full play to the fact finder’s

responsibility to resolve testimonial conflicts, weigh the evidence, and draw reasonable

inferences from basic facts to ultimate facts. Id. at 319; Murray v. State, 457 S.W.3d 446, 448

(Tex. Crim. App. 2015).

       Under this standard, the fact finder is the sole judge of the evidence’s weight and

credibility. See TEX. CODE CRIM. PROC. art. 38.04; Dobbs v. State, 434 S.W.3d 166, 170 (Tex.

Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment for that of the

factfinder’s. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead,

we determine whether the necessary inferences are reasonable based upon the evidence’s

cumulative force when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at

448. We must presume that the factfinder resolved any conflicting inferences in favor of the

verdict and defer to that resolution. Id. at 448–49.

       The standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs, 434

S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).

       A person commits the offense of driving while intoxicated if “the person is intoxicated

while operating a motor vehicle in a public place.” TEX. PENAL CODE § 49.04(a). Thus, the

State must prove that (1) a person; (2) is intoxicated; (3) at the time of; (4) operating; (5) a motor

vehicle; (6) in a public place. See State v. Bara, No. 11-15-00158-CR, 2016 WL 4118659, at *4

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(Tex. App.—Eastland July 28, 2016, no pet.). As applies here, “intoxicated” means “not having

normal use of mental or physical faculties by reason of the introduction of alcohol” or having an

alcohol concentration of 0.08 or more. TEX. PENAL CODE § 49.01(2); Scillitani v. State, 343

S.W.3d 914, 917 (Tex. Crim. App. 2011) (per curiam).

B.     Was the corpus delicti rule satisfied?

       Appellant argues that the corpus delicti rule is not satisfied because there is no evidence

other than his extrajudicial statement to show that he was operating his vehicle. We disagree.

       The corpus delicti rule concerns evidentiary sufficiency in cases where there is an

extrajudicial confession. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013).

The rule states that, “[w]hen the burden of proof is beyond a reasonable doubt, a defendant’s

extrajudicial confession does not constitute legally sufficient evidence of guilt absent

independent evidence of the corpus delicti.” Id.

       To satisfy the corpus delicti rule, there must be “evidence independent of a defendant’s

extrajudicial confession show[ing] that the essential nature of the charged crime was committed

by someone.” Id. at 866. “The other evidence need not be sufficient by itself to prove the

offense: all that is required is that there be some evidence which renders the commission of the

offense more probable than it would be without the evidence.” Harrell v. State, No. 05-15-

00133-CR, 2016 WL 865464, at * 3 (Tex. App.—Dallas March 7, 2016, no pet.) (mem. op.).

The DWI corpus delicti is that someone operated a motor vehicle in a public place while

intoxicated. Folk v. State, 797 S.W.2d 141, 144 (Tex. App.—Austin 1990, pet. ref’d).

       The penal code does not define “operating” for the purposes of the DWI statute. Denton

v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995). The court of criminal appeals, however,

holds 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

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vehicle’s use.” Id.; see also Barton v. State, 882 S.W.2d 456, 459 (Tex. App.—Dallas 1994, no

pet.).

         Here, there is direct and circumstantial evidence—other than appellant’s statement—

from which a jury could infer that he was operating the vehicle in a public place while

intoxicated. For example:

         One, Chacon arrived at 2600 Worthington Street, a public place, after midnight and found

appellant standing next to his car.

         Two, Chacon      found sufficient clues for present intoxication when he at that time

performed HGN testing on appellant at the scene.

         Three, a portable breath test also detected the presence of alcohol.

         Four, the intoxilyzer test performed at the jail about an hour later showed alcohol

concentrations in excess of the legal limit. Additionally, Officer Bobby Watkins, the officer

administering the test, testified that appellant showed signs of intoxication.

         Five, the owner of the vehicle appellant backed into was also present when Chacon

arrived, and she told Chacon that she observed the accident and that appellant tried to drive

away.

         These additional pieces of evidence were collectively sufficient to establish the corpus

delicti of DWI— that appellant operated a motor vehicle in a public place while intoxicated. See

Folk, 797 S.W.2d at 144.

C.       Was there a temporal link between appellant’s operation of the vehicle and his
         intoxication?

         Appellant also contends that the evidence is insufficient because there is no temporal link

between his intoxication and the operation of his vehicle. Specifically, appellant claims the link

is absent because there was no evidence of the accident’s timing.



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       For the evidence to be sufficient to support a conviction for driving while intoxicated,

there must be a temporal link between a defendant’s intoxication and his driving. Kuciemba v.

State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). That is, the evidence must show that the

defendant was intoxicated when he or she actually operated the vehicle. This link may be

established by direct or circumstantial evidence. See id.

       Here, the record contains sufficient evidence from which a juror could reasonably

conclude that the required temporal connection existed here. Specifically, “Being intoxicated at

the scene of a traffic accident in which the actor is a driver is some circumstantial evidence that

the actor’s intoxication caused the accident, and the inference is even stronger when the accident

is a one-car collision with an inanimate object.” Id. at 462.

       Moreover, although there must be some evidence beyond mere intoxication in a public

place to establish operation, see, e.g. King v. State, 05-13-00178-CR, 2014 WL 2807993, at 7

(Tex. App.—Dallas June 18, 2014, no pet.) (mem. op.), there was such additional evidence here.

For example, although the record does not include an exact time for the accident, Chacon

testified that he arrived on the scene shortly after midnight, and appellant was standing next to

his car. Appellant told him that he had backed into a parked car and had his last drink at around

9:00 p.m. Appellant was arrested at 1:11 a.m. The other car’s owner, who saw the accident, was

also present. From these facts, a reasonable juror could reasonably infer that the accident (and

thus the driving) occurred after the last drink and shortly before Chacon arrived soon after

midnight.

       Furthermore, an intoxilyzer test showed that appellant’s alcohol concentration was still

above the legal limit at 2:07 a.m.—almost five hours after he consumed his last drink and two

hours after Chacon arrived at the scene. Officer Watkins testified that appellant showed signs of

intoxication at that time. And, another officer involved with the intoxilyzer test testified that a

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person with the blood alcohol content appellant’s test showed would not have normal use of his

mental faculties to safely operate a motor vehicle. Thus, a rational jury could infer that appellant

was intoxicated when he backed into the parked car between the hours of 9:00 p.m. and 12:00

a.m. and there was a temporal link between appellant’s intoxication and his driving.

D.      Was there evidence that appellant operated the vehicle in a public place?

        Finally, appellant maintains that the evidence is insufficient because there is no evidence

that he operated his vehicle in a public place. Although he acknowledges that 2600 Worthington

Street is a public place, he asserts that no witness testified that the accident actually occurred at

this location.

        While the evidence could have been more precise, the absence of precision does not

render it insufficient. See Washington v. State, No. 14-10-00221-CR, 2011 WL 3276241, at *4

(Tex. App.—Houston [14th Dist.] Aug. 2, 2011 pet. ref’d) (mem. op.) (State did not need to

show precise time of accident or of appellant driving as long as there was a temporal link

between his intoxication and driving). And circumstantial evidence is as probative as direct

evidence in establishing guilt. Dobbs, 434 S.W.3d at 170.

        Here, it is undisputed that the location where appellant was standing next to his vehicle is

a public place. There is nothing to suggest that the accident occurred at another location. Thus,

a reasonable jury could infer that the accident occurred on the public street where appellant and

his car were found.

                                         III. Conclusion

        On this record, we conclude that the evidence is sufficient to support appellant’s

conviction.




                                                –7–
       We overrule appellant’s sole issue and affirm the trial court’s judgment.



                                                    /Bill Whitehill/
                                                    BILL WHITEHILL
Do Not Publish                                      JUSTICE
TEX. R. APP. P. 47
160167F.U05




                                              –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JAMES BERNARD PACE, Appellant                      On Appeal from the County Criminal Court
                                                   No. 2, Dallas County, Texas
No. 05-16-00167-CR        V.                       Trial Court Cause No. MB14-58096-B.
                                                   Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                       Justices Lang and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered January 23, 2017.




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