                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00286-CR


MIGUEL CASTELLANO GARCIA                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

      A jury convicted Appellant Miguel Castellano Garcia of felony driving while

intoxicated (DWI), assessed his punishment at ten years’ confinement, and

recommended that imposition of his sentence be suspended and that he be

placed on community supervision for ten years. The trial court sentenced him

accordingly.   In a single point, Appellant challenges the sufficiency of the

evidence to prove beyond a reasonable doubt that he was the operator of the


      1
       See Tex. R. App. P. 47.4.
vehicle involved in the collision leading to his DWI arrest. Because the evidence

is sufficient to show that Appellant was operating the vehicle while he was

intoxicated, we affirm the trial court’s judgment.

      On January 8, 2009, Lake Worth police officer Matt Rietfors investigated a

two-car wreck. When Rietfors arrived at the scene, Appellant was sitting in the

driver’s seat of one of the vehicles, a Dodge Dakota, and talking to a fireman.

Rietfors noticed that Appellant’s breath had an odor of alcohol, his speech was

slurred, and his eyes were glassy and bloodshot.

      Rietfors asked Appellant to step out of the truck and produce his driver’s

license. Appellant got out of the truck but refused to produce his license. After

conducting field sobriety tests, Rietfors concluded that Appellant was intoxicated

and arrested him.

      At trial, Rietfors testified that the other driver involved in the wreck had

indicated that Appellant had been driving the truck. Rietfors also testified that

Appellant owned the truck and had no other passengers in the truck with him.

      Appellant’s sole argument is that the State failed to prove beyond a

reasonable doubt that he was the operator of the Dodge Dakota involved in the

wreck leading to the DWI arrest.         He does not contend that he was not

intoxicated at the time the vehicle was being operated. A person commits the

offense of DWI if the person is intoxicated while operating a motor vehicle in a

public place.2

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

      2
       Tex Penal Code Ann. § 49.04(a) (West 2011).


                                          2
determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. 3

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.4 The trier of fact is the sole judge of

the weight and credibility of the evidence.5 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. 6 Instead, we

Adetermine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.”7 We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution.8

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

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor.9

      3
       Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
      4
       Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
      5
       See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State,
270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009).
      6
       Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
      7
       Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
      8
       Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
      9
       Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.


                                           3
      This is an unusual case in that the State proved that Appellant was

operating the vehicle by relying solely on hearsay and circumstantial evidence.

No one who actually saw the wreck testified at trial. Rietfors did not see the

wreck and, consequently, did not see who was operating either vehicle. He saw

Appellant sitting behind the wheel of the Dodge Dakota, alone in the truck, when

he arrived on the scene, but the engine was not running. The driver of the other

vehicle involved in the wreck had told Rietfors that Appellant was driving the

Dodge Dakota at the time of the wreck, and Rietfors relied on this information

and relayed it to the jury at trial.     Appellant did not object to the hearsay

testimony but rather elicited the evidence from Rietfors.

      Applying the appropriate standard of review, we hold that the evidence is

sufficient to allow a rational trier of fact to find that the State had proved beyond a

reasonable doubt that Appellant operated the vehicle involved in the accident

leading to his DWI arrest. We therefore overrule Appellant’s sole point and affirm

the trial court’s judgment.




                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 3, 2011




                                          4
