                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-16-00067-CR
                              _________________

                    HAROLD THOMAS MABRY, Appellant

                                          V.

                          THE STATE OF TEXAS, Appellee
________________________________________________________________________

                On Appeal from the County Court at Law No. 4
                        Montgomery County, Texas
                         Trial Cause No. 15-307361
________________________________________________________________________

                            MEMORANDUM OPINION

      A jury convicted appellant, Harold Thomas Mabry, of the misdemeanor

offense of Boating While Intoxicated (“BWI”). See Tex. Pen. Code Ann. § 49.06(a)

(West 2011). Mabry appeals, and in his sole appellate issue, complains that the

evidence is legally and factually insufficient to sustain his conviction. We affirm the

trial court’s judgment.




                                          1
                                    Background

      At around 9:00 p.m., on the evening of July 3, 2015, a deputy constable with

the marine patrol division of the Montgomery County Constable's Office was

traveling eastbound by boat toward a public dock on Lake Conroe when he witnessed

another boat traveling west toward the main open lake area. Because the other boat

was operating with no navigational lights, the deputy initiated his own blue overhead

police lights to stop the boat and his white takedown light to observe inside the boat.

After the deputy turned on his light, he observed Mabry, who was seated in the

driver’s seat of the other boat at the time, stand up, shift the boat into neutral, and

engage the boat’s front navigation lights. Another male and two females were aboard

Mabry’s boat as well. The deputy pulled up to Mabry’s boat and made contact with

him and the other passengers. Upon administering standardized field sobriety tests,

the deputy determined that Mabry was intoxicated beyond legal limits and placed

him under arrest. Results of a blood test would later indicate that Mabry’s blood

alcohol content was 0.214, well over the legal limit. See Tex. Pen. Code Ann. §

49.01(2)(B) (West 2011) (defining intoxicated as “having an alcohol concentration

of 0.08 or more”). As Mabry was being transported to the jail, he claimed, for the

first time, that he had not been the one operating the boat.



                                          2
      The State originally charged Mabry by information with the misdemeanor

offense of boating while intoxicated, alleging that “on or about July 3, 2015, in

Montgomery County, Texas, HAROLD THOMAS MABRY . . ., while operating a

watercraft in a public place1, was then and there intoxicated[.]” The information

further alleged that Mabry was previously convicted of driving while intoxicated,

enhancing the offense from a Class B misdemeanor to a Class A misdemeanor. See

Tex. Pen. Code Ann. § 49.09(a) (West Supp. 2016). The jury found Mabry guilty of

the offense as charged, and punishment was assessed by the court. At the punishment

phase, Mabry pled true to the enhancement paragraph of prior conviction. The trial

court sentenced Mabry to confinement in the Montgomery County Jail for a period

of one year, but suspended the sentence and placed him on community supervision

for two years and assessed a fine of $1,500. This appeal timely followed.

                           Sufficiency of the Evidence

      In his sole issue on appeal, Mabry contends that the evidence is legally and

factually insufficient to support the jury’s guilty verdict. In examining the

sufficiency of evidence supporting a jury’s verdict of guilt, we view the combined

logical force of all admitted evidence in the light most favorable to the prosecution



      1
       Prior to trial, the State abandoned the language “in a public place” from the
information without objection.
                                          3
to determine whether any rational trier of fact could find the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19

(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “Direct evidence

and circumstantial evidence are equally probative, and circumstantial evidence alone

may be sufficient to uphold a conviction so long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction.” Ramsey v. State,

473 S.W.3d 805, 809 (Tex. Crim. App. 2015).

      A person commits the offense of boating while intoxicated if he “is intoxicated

while operating a watercraft.” Tex. Pen. Code Ann. § 49.06(a). Mabry conceded at

trial that he was intoxicated at the time of his arrest; however, he argues that the

evidence was insufficient to establish that he was operating the watercraft. The Penal

Code does not define the term “operating”; therefore, the word must “be read in

context and construed according to the rules of grammar and common usage.” Tex.

Gov’t Code Ann. § 311.011(a) (West 2013). With that guidance, the Court of

Criminal Appeals “has concluded that a person ‘operates’ a vehicle when ‘the

totality of the circumstances [ ] demonstrate that the defendant 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) (quoting Denton

v. State, 911 S.W.3d 388, 390 (Tex. Crim. App. 1995)).

                                          4
      In this case, the deputy that arrested Mabry testified that when he initially

observed Mabry’s boat, it was “traveling west out toward the main open lake area.”

He testified that he observed Mabry seated in the operator’s seat and that when he

turned on his police lights, he watched Mabry stand from the driver’s seat, “punch

the switch on his vessel and initiate the front navigation lights,” and shift the boat

into neutral. The deputy stated that he observed other individuals on the boat, but

that his focus was on Mabry, “who [he] observed operating the vessel.”

      Much of the deputy’s testimony was disputed by Tammie Lambert, one of the

other occupants of the boat on the evening of Mabry’s arrest, who testified on

Mabry’s behalf. She testified that the group had gotten into Mabry’s boat after

leaving a friend’s house and had pushed away from the dock, but they had an issue

with the navigational lights not working, “so they were working with that.” She

testified that the other male passenger, Patrick Prentice, had been taking turns with

Mabry throughout the day driving the boat and that once they got the lights working,

Prentice was going to drive the boat because he had not had as much to drink. She

stated that at the time the deputy arrived, no one had driven the boat since they left

their friend’s house and that they were “just floating.” She claimed that Mabry was

not in the operator’s seat at the time of the stop. She also claimed that the boat was

never put in gear and that she did not recall the engine even being on.

                                          5
      In our review of the evidence, we must defer to the jury’s factual findings and

resolve all reasonable inferences in favor of their verdict because the jury is the sole

judge of the witnesses’ credibility and the weight to be afforded to the testimony of

each witness. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010); Dobbs

v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). The jury may choose to

believe or disbelieve any witness, or any portion of a witness’s testimony,

particularly when there is contradictory evidence. Sharp v. State, 707 S.W.2d 611,

614 (Tex. Crim. App. 1986). The jury in this case was clearly presented with

conflicting testimony. Lambert insisted that Mabry was not in the operator’s seat and

that the boat was not moving; the deputy testified affirmatively and repeatedly that

he witnessed Mabry in the operator’s seat, with the boat moving in a forward motion

prior to the stop, and that Mabry shifted the boat into neutral after the deputy engaged

his police lights. Lambert denied that the boat’s motor was running before the stop,

yet the deputy’s body-cam video, admitted into evidence and played for the jury,

shows law enforcement officers asking the occupants to turn the boat off and

Prentice complying. Lambert asserted that no one was driving the boat before the

stop because they could not get the navigational lights to work, but she could not

remember if, or explain how, the lights came on immediately after the deputy began

flashing his police lights. Lambert testified that Prentice, the other male occupant,

                                           6
had been driving that evening and was going to drive the boat after they got the lights

working, but another witness, a customer service clerk at a marina where Mabry

frequently launches his boat, testified that Mabry told her after the arrest that it was

his girlfriend that was driving that night. Faced with this contradictory testimony, it

was within the jury’s province to disbelieve or disregard Lambert’s testimony and

believe the testimony of the deputy that he witnessed Mabry operating the

watercraft. See id.

      Therefore, according due deference to the jury’s exclusive right to determine

the credibility of the witnesses and the weight to attach to the evidence, and viewing

all of the admitted evidence in the light most favorable to the prosecution, we find

that there is sufficient evidence by which the jury could have found beyond a

reasonable doubt that Mabry was operating the watercraft while intoxicated prior to

his arrest. We therefore overrule Mabry’s appellate issue and affirm the trial court’s

judgment.

      AFFIRMED.

                                               ______________________________
                                                      CHARLES KREGER
                                                           Justice
Submitted on June 13, 2017
Opinion Delivered September 27, 2017
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.
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