 AFFIRM; Opinion Filed October 10, 2012.




                                                In The
                                  Qtinrt øf Appiat
                          Fift1i itrirt ut xai at JatIai
                                        No. 05-10-01350-CR


                         GREGORY EDWARD ROBERSON, Appellant

                                                  V.

                                THE STATE OF TEXAS, Appellee


                        On Appeal from the County Court at Law No. 3
                                    Coffin County, Texas
                            Trial Court Cause No. 003-89702-09


                               MEMORANDUM OPINION
                        Before Justices O’Neill, FitzGerald, and Lang-Miers
                                  Opinion By Justice Lang-Miers

        Gregory Edward Roberson pleaded not guilty to the misdemeanor charge of driving while

intoxicated. A jury found him guilty and the trial court assessed punishment at 90 days’ confinement

in the county jail and a fine of $750. On appeal, appellant argues that the evidence is insufficient to

support the conviction and the State violated his constitutional and statutory rights by commenting

on his failure to testify. We issue this memorandum opinion pursuant to Texas Rule of Appellate

Procedure 47.4 because the law to be applied in the case is well settled. We affirm the trial court’s

judgment.
                                                               BAcKGRouND

             In November2009, Piano police oHicer Russell Harris was on traffic patrol on Legacy Drive

 near US 75 in Piano. About 3:30 a.m. he noticed a BMW that was “oddly” parked at the gas station

 across the street. The car was not parked at a gas pump or in a parking space; it was parked in the

 driving area of the station behind a properly parked car. The officer observed the car for about ten

 minutes and then drove over to the gas station. One of the station clerks came out and told the officer

 that the car “was making him uneasy” and that it had been “parked there for quite some time.”

            Officer Harris testified that the car’s engine, running lights, and air conditioner were on. He

 said he saw two people inside “that were either passed out or asleep”—a male in the driver’s seat

 (later identified as appellant) and a female passenger, He tried to get a closer look inside the car, but

 the front windshield was fogged up and the side windows “were blacked out with tint.” He knocked

 on the windows several times but did not get a response. He called for a second unit as back up.

            When the second unit arrived, Officer Harris turned on the video camera in his police car’

and approached the BMW again. He opened the driver’s door and shook appellant to get his attention

and to see ifhe was okay. Appellant “revive[dJ” “eventually” and the officer asked to see appellant’s

driver’s license, instead of reaching for his driver’s license, appellant “play[edj with his lights on

the vehicle.” The video of the encounter showed the left turn indicator blinking, then the right, and

then the left again, and the officer said, “Your lights are on.” Appellant fumbled through his wallet

and handed the officer a credit card instead of his driver’s license.

           Officer Harris asked appellant to turn off the engine and get out of the car; appellant

complied. On the video the officer told appellant that he “wreak[edj” of alcohol. In response to the

officer’s questions about the events of that night, appellant said he had two beers and was driving



     The video of the encounter with appellant at the gas station is marked as State’s Exhibit 3 in the appellate record, but it was offered
     t
                                                                                                                                             into
evidence as State’s Exhiht 2. It is clear that these exhibits refer to the same video evidence, and the parties do not argue otherwise.
 his girlfriend home from a bar in Dallas. He said he had “just pulled over [and that he had]   only   been

 here for a   few   minutes.” At some point, appellant changed his account and said he had two “Crown

 and cokes,” and later changed again and said he had two beers, Fie also said his girlfriend had been

 driving the car, not him. Officer Harris administered field sobriety tests and arrested appellant lor

driving while intoxicated.

                                      SuFFICIENCY OF THE EVIDENCE

         In   issue   one, appellant argues that the evidence is insufficient to support the conviction.

When an appellant challenges the sufficiency of the evidence to support a conviction, we review all

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 offense beyond a reasonable doubt. Wise v. State, 364

S.W.3d 900. 903 (‘fex. Crim. App. 2012). Evidence is sufficient if “the inferences necessary to

establish guilt are reasonable based upon the cumulative force of all the evidence when considered

in the light most favorable to the verdict.” 11. If the evidence is contlicting, we “‘presume that the

factfinder resolved the conflicts in favor of the prosecution’ and defer to that determination.” Id.

(quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)). This standard is the same for both direct

and circumstantial evidence. Id.

        A person commits the offense of driving while intoxicated if the person was intoxicated

while operating a motor vehicle in a public place. TEX. PENAL CODE ANN.           §   49.04 (West Supp.

2012). Appellant does not challenge the evidence that he was intoxicated in a public place; he

challenges only whether the State proved he operated a motor vehicle. He concedes he initially told

the officer that he was driving the car. But he argues that his confession was not corroborated and

no rational jury could have found he operated the car because there was no evidence anyone saw him

drive the car into the gas station, that he shifted the car into gear, that the lights were on, how long

the car had been parked at the gas station, or whether anyone else entered or exited the car.


                                                   —3—
        The word “operating” is not defined in the penal code, but case law instructs that “‘operate’

is a common term that has not acquired a technical meaning and may be interpreted according to its

common usage.’ Kircch v. State, 357 S.W3d 645, 650 (Tex. Crirn. App. 2012). “Operate” means

when “the totality of the circumstances.   .   .   demonstrate[s] that the defendant took action to affect

the functioning of his vehicle in a manner that would enable the vehicle’s use.” Denton v, State, 911

S.W.2d 388, 390 (Tex. Crim. App. 1995); aceordAbraham v. State, 330 S.W.3d 326, 331 (Tex.

App.—Dallas 2009, pet. dism’d). A defendant does not have to cause the vehicle to move or not

move to operate it. See Denton, 911 S.W.2d at 389; Barton v. State, 882 S.W.2d 456, 459 (Tex.

App.—Dallas 1 994, no pet.).

        The totality of the circumstances in this case demonstrates that appellant took action to affect

the functioning of his vehicle in a manner that would enable its use. Appellant was sitting in the

driver’s seat, the engine was on, the car was parked in the open area where people drive and behind

a properly parked car, and appellant told the officer that he was driving his girlfriend home.

Additionally, in the video the officer told appellant that his lights were on, and the video showed the

car’s tail lights were on and the rear blinkers were going on and off as the officer was talking to

appellant. Viewing the evidence and inferences therefrom in the light most favorable to the jury’s

verdict, we conclude that the jury could rationally find, beyond a reasonable doubt, that appellant

operated the car. See Denton, 911 S.W.2d at 389—90; see also Schragin v. State, No. 02-10-00510-

CR, 2012 WL 3501320, at *1_2, 4—6 (Tex. App.—Fort Worth Aug. 16, 2012, no pet. h.) (finding

defendant operated vehicle under circumstances showing car legally parked for about 90 minutes

without moving, engine running, lights on, male slumped over in driver’s seat asleep with seat belt

on). We resolve issue one against appellant.




                                                     -4-
                             REMARKS IN STATE’s CLosING ARGuMENT

          In issue two, appellant argues that the State violated his constitutional and statutory rights

 during its closing argument by commenting on his failure to testify.

          Proper jury argument generally falls within one of four areas: summation of the evidence,

 reasonable deductions from the evidence, responses to argument of opposing counsel, and pleas for

 law enlorcement. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). We examine the

challenged argument fi-om the jur’s perspective and determine whether it was “manifestly intended

or of such a character that the   jury   would necessarily and naturally take it as a comment on the

accused’s failure to testify.” Banks v. State, 643 S.W.2d 129, 134 (Tex. Crim. App. 1982). A

statement is improper “[i]f the remark called the jury’s attention to the absence of evidence that only

the testimony of the defendant could supply[.J” Id. It is not improper, however, if “the language

might he construed as an implied or indirect allusion” or refers to an appellant’s failure to produce

evidence other than his own testimony. Id. at 134—35; accord Patrick v. State, 906 S.W.2d 481,

490—91 (Tex. Crim. App. 1995). “[A] party may always comment on the fact that the opponent failed

to call an available witness and then argue ‘Don’t you know, if Mr. X had anything favorable to say,

my opponent would have called him.” Pope v. State, 207 S.W.3d 352, 365 & n.5 1 (Tex. Crim. App.

2006).

         To give this issue context, we begin by describing the parties’ closing arguments. The State

argued that there was no evidence to contradict appellant’s initial statement to Officer Harris that

appellant was driving the car. The State argued that if appellant’s girlfriend had been driving, as

appellant later claimed, appellant would have subpoenaed her to testify that she was the driver.

         Appellant responded that the State could have called the girlfriend or the gas station clerk to

testify about who was driving, but the State “didn’t do that.” He argued, “Oh, the burden never shifts

to us, but why didn’t we bring this witness[?]    .   .   .   So why didn’t [the State] bring her? If she was
 going to say, he was driving, why didn’t they bring her? And they didn’t bring her to you.” Appellant

 argued that the State’s hiilure to call those witnesses to testify that he was driving raised a reasonable

 doubt about whether he operated the car that night.

          In its rebuttal argument, the State made the following comments; appellant contends the

 italicized portion of the argument was a direct comment on his failure to testify:

         And then when he realizes what happened, he realizes, oh, man, i’m going to jail, he
         blames it on his passed out girlfriend in the passenger seat, oh, look she just drove
         here and it’s her fault. Let me tell you what, we looked for that girl and she          -—




         [defense objection sustained] On/v one peicon knows where that girl is, and that’s
         her bofriend.

         The State made the challenged remark three more times, and each time appellant objected

on a different basis.
               2 Appellant contends that the challenged “statement clearly said the [appellant]

was the only person who could supply information on the whereabouts of his girlfriend. It was not

a comment on the failure to produce evidence.” Assuming that appellant’s argument on appeal was

preserved, we conclude that the remark was not improper.

         Appellant’s contradictory statements about whether he was driving the car that night were

in evidence. The parties’ closing arguments were attempts to persuade the jury that ifthe girlfriend’s

testimony would have helped the other side, that party would have called her as a witness. Viewed

in context and from the jury’s perspective, the remark was an indirect argument that appellant’s

failure to call the girlfriend as a witness supported the inference that the girlfriend’s testimony would

not have helped him. See Pope, 207 S.W.3d at 365 & n.5 1; Fisher v. State, 803 S.W.2d 828, 832

(Tex. App.—Dallas 1991, pet. ref’d) (the State may properly ask jury to infer that defendant did not

call witness because witness’s testimony would have harmed defendant). Additionally, thejury could

have rationally construed the remark as a fair response to appellant’s argument asking the jury to




   Appellant raises only one of those bases on appeal.


                                                         —6-—
consider why the State did not call the girlfriend as a witness. See United States v. Robinson, 485

U.S. 25, 33—34 (1988); Randolph v. State, 353 S.W.3d 887, 892—93 (Tex. Crim. App. 2011). The

State attempted to respond to that argument by stating that it had tried to tind the girlfriend but only

appellant knew where she was.

       Viewed from the jury’s perspective, we conclude that the remark was not “manifrstly

intended or ofsuch a character that thejuly would necessarily and naturally take it as a comment on

the accused’s failure to testi&.” Banks, 643 S.W.2d at 134; see Pope, 207 S.W.3d at 365; Patrick,

906 S.W.2d at 490—91; Fisher, 803 S.W.2d at 832. And it was a fair response to appellant’s

argument. See Robinson, 485 U.S. at 33—34: Randolph, 353 S.W.3d at 892—93. Consequently, the

argument was not improper. We resolve issue two against appellant.

                                            CoNcLusioN

       We affinn the trial court’s judgment.



                                                                  2
                                                       ELIZABETH LANG-MIERS
                                                       JUSTICE.
                                                                                    .4. t14
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Do Not Publish
TEx. it Ape. P.47
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                                                —7—
                                     G!tnirt nf nah
                       FiftI! iirirt uf ixai at tallw

                                       JUDGMENT
GREGORY EDWARD ROBERSON,                           Appeal from the County Court at Law No. 3
Appellant                                          of Cohn County, Texas. (Tr.Ct.No. 003-
                                                   89702-09).
No. 05-10-01 350-CR          V.                    Opinion delivered by Justice Lang—Miers,

                                                   Justices O’Neill and FitzGerald
THE STATE OF TEXAS, Appellee                       participating.


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



Judgment entered October 10, 2012.



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                                                  ELIZABETH LANG-MIERS
                                                  JUSTiCE
