           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD-1230-14



                       CHAD WILLIAM MURRAY, Appellant

                                            v.

                               THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SEVENTH COURT OF APPEALS
                             HILL COUNTY

              M EYERS, J., filed a dissenting opinion.

                          DISSENTING OPINION

       The court of appeals decided that there was insufficient evidence in this case for a

reasonable jury to conclude beyond a reasonable doubt that Appellant had operated a motor

vehicle while intoxicated. Murray v. State, 440 S.W.3d 927, 929 (Tex. App.–Amarillo 2014).

I agree.

       The majority states that the jury is responsible for “drawing reasonable inferences

from basic facts to ultimate facts” and holds that, because the jury could have reasonably
                                                                        Murray dissent - Page 2

inferred that Appellant both consumed alcohol other than where he was found and drove to

the location after drinking to intoxication, that the evidence was legally sufficient to support

Appellant’s conviction. Murray v. State, No. PD-1230-14, slip op. at 3, 6. However, I am

unfamiliar with this inferral relationship. Since when can juries makes inferences that are not

based on direct or circumstantial evidence?

       There is no evidence in this case at all that speaks to when the vehicle was driven to

the location where it was found, or when or where Appellant became intoxicated. Finding

the evidence sufficient to support Appellant’s conviction would be no different than

convicting an individual for possession of marijuana based solely on an officer’s observation

that the individual was high and smelled of marijuana. I am aware of no possession case

where we have allowed this type of attenuated inference, and we should not allow it now in

this driving while intoxicated case. Just as the evidence of possession of marijuana by that

individual would be insufficient, so is the evidence that Appellant ever drove while

intoxicated.

       There are certain instances in which inferences are allowed to be made. For example,

if an electronics store was robbed, and then an individual was found with electronics that

contain serial numbers matching the stolen merchandise, it is allowable to infer that the

individual committed the robbery even where there is no additional evidence he was the

perpetrator. There, the inference is used to identify the individual who committed the crime.

In this case, however, the inference is being used to assert that a crime was committed at all.
                                                                        Murray dissent - Page 3

I cannot condone this type of analysis which has no basis in law. I can only presume that this

new procedure for both creating and finding a defendant guilty of a crime should open up a

whole new avenue for convictions that are based solely upon a simple inference that a crime

was committed.

       Although the majority does not directly address whether simply being passed out

behind the wheel of a running car is, itself, enough to constitute “operating” a vehicle for

purposes of DWI, I would also hold that it is not enough. Operating a vehicle requires taking

action in a manner that would enable the vehicle’s use, and although turning the ignition

would likely meet this definition, there needs to exist some evidence to support a finding that

it was done while the defendant was intoxicated. Denton v. State, 911 S.W.2d 388, 390 (Tex.

Crim. App. 1995). Without such evidence, no rational jury could find beyond a reasonable

doubt that the defendant operated a motor vehicle while intoxicated.

       I believe the evidence in this case is insufficient to support Appellant’s conviction and

I would affirm the judgement of the court of appeals. For the foregoing reasons, I

respectfully dissent.

                                                           Meyers, J.

Filed: April 15, 2015

Publish
