                                MEMORANDUM OPINION
                                        No. 04-11-00397-CR

                                    Anthony Eugene SHIELDS,
                                            Appellant

                                                v.

                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No. 2, Bexar County, Texas
                                     Trial Court No. 980448
                              Honorable Jason Wolff, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Karen Angelini, Justice
                 Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: January 25, 2012

AFFIRMED

           Appellant Anthony Eugene Shields was convicted of the misdemeanor offense of driving

while intoxicated (DWI). In his sole issue on appeal, Shields contends the evidence was legally

insufficient to support the verdict because the State failed to prove beyond a reasonable doubt

that he operated a vehicle or that he was intoxicated. We affirm the trial court’s judgment.
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                                          BACKGROUND

       On September 9, 2006, at approximately 12:25 a.m., Officer Johnny Salinas responded to

a report of a sleeping, ill, or unconscious driver parked between traffic lanes at a highway

intersection. Officer Salinas approached the vehicle and found Shields unconscious in the

driver’s seat and observed the vehicle’s engine was running. Salinas testified that Shields’s car

was straddling two lanes of traffic near a traffic light. Salinas tapped on the vehicle’s window to

wake Shields. Salinas observed that Shields had bloodshot eyes, slurred speech, and the strong

smell of alcohol on him.      Salinas detained Shields and escorted him to the San Antonio

Magistrate’s Office to administer standardized field sobriety tests (SFSTs) and to administer a

Breathalyzer test to determine Shields’s blood-alcohol concentration. Shields refused to perform

the SFSTs and refused to provide a breath sample.

       The case proceeded to trial four years and eight months after the alleged offense. The

State’s only witness was Officer Salinas. Because of the considerable time span between the

alleged offense and the trial, Salinas relied considerably on his written report. Despite some

inconsistencies in Salinas’s report, the jury found Shields guilty. Shields appeals his conviction.

                                      LEGAL SUFFICIENCY

       Shields contends there was insufficient evidence to support the jury’s guilty verdict

because the State did not prove beyond a reasonable doubt that Shields operated his vehicle or

that he was intoxicated.

A. Standard of Review

       A reviewing court determines legal sufficiency by “[c]onsidering all of the evidence in

the light most favorable to the verdict” to determine whether the trier of fact was “rationally

justified in finding guilt beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 899



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(Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard

requires an appellate court to defer to the factfinder’s credibility and weight determinations. Id.;

see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979). “‘Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence

alone can be sufficient to establish guilt.’” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Therefore, we

apply the same standard of review to direct and circumstantial evidence. Hooper v. State, 214

S.W.3d at 13.

B. Driving While Intoxicated

        A person commits the offense of DWI “if the person is intoxicated while operating a

motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04 (West 2011); 1 Sierra v. State,

280 S.W.3d 250, 254 (Tex. Crim. App. 2009). “Intoxicated” is defined as “not having the

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 ANN. § 49.01; Sierra, 280 S.W.3d

at 254. Evidence that a person refused to submit to a breath test is admissible at the defendant’s

trial for DWI. TEX. TRANSP. CODE ANN. § 724.061 (West 2011); Bartlett v. State, 270 S.W.3d

147, 149 (Tex. Crim. App. 2008). Additionally, intoxication can be proven circumstantially by

evidence of a defendant’s bloodshot eyes, slurred speech, strong odor of alcohol on the person,

and difficulty standing. See Cotton v. State, 686 S.W.2d 140, 142 & n.3 (Tex. Crim. App. 1985)

(providing a non-exhaustive list of evidence of intoxication); see also Kuciemba v. State, 310

S.W.3d 460, 461 (Tex. Crim. App. 2010).



1
  The legislature recently amended section 49.04. Act of June 17, 2011, 82d Leg., R.S., ch. 960, § 2, 2011 Tex.
Sess. Law Serv. 2413. These amendments apply only to DWI offenses committed on or after September 1, 2011.
Id.

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       A defendant is determined to have “operated” a vehicle if “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.” Denton v. State, 911 S.W.2d 388, 390

(Tex. Crim. App. 1995). The State must prove “a temporal link between the . . . defendant’s

intoxication and his [operation of a vehicle].” Kuciemba, 310 S.W.3d at 462.

C. Analysis

       According to Officer Salinas’s testimony, Shields was seated in the driver’s seat of his

vehicle, which was in a public place. Thus, the issue in this case is whether there was legally

sufficient evidence to establish that Shields operated his vehicle while intoxicated.

       1. Evidence that Shields was intoxicated

       Salinas testified that Shields had bloodshot eyes, had slurred speech, had a strong smell

of alcohol on him, and staggered as he exited the vehicle. See Cotton, 686 S.W.2d at 142 & n.3.

Additionally, Salinas testified that Shields refused to submit a breath sample that would

determine his blood-alcohol concentration. See TEX. TRANSP. CODE ANN. § 724.061; Bartlett,

270 S.W.3d at 149. Considering the evidence in a light most favorable to the verdict, the

evidence was legally sufficient to support the jury’s finding that Shields was intoxicated. Cf.

Brooks, 323 S.W.3d at 899.

       2. Evidence that Shields “operated” his vehicle while intoxicated

       Shields contends the evidence is insufficient to establish he operated a vehicle. He

admits to being asleep in an idling vehicle; however, he argues that because his car was not in

gear and his foot was not touching the accelerator or brake pedals, there was no evidence of

operation. Shields relies primarily on Reddie to support his argument. Reddie v. State, 736

S.W.2d 923, 926 (Tex. App.—San Antonio 1987, pet. ref’d). In Reddie, this court determined



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that a person found sleeping or unconscious in a running vehicle in the “park” position supports

an inference that an intoxicated person “caused the car to function in this way at some time.” Id.

However, we held that the evidence did not support a conviction for DWI because “there

exist[ed] other reasonable hypotheses.” Id. at 926–27 (emphasis added).

        After Geesa, Shields’s reliance on Reddie is misplaced. Several years after we decided

Reddie, the court of criminal appeals brought an end to the “reasonable hypothesis analytical

construct.” Geesa v. State, 820 S.W.2d 154, 155, 159 (Tex. Crim. App. 1991), overruled on

other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). The reasonable

hypothesis analytical construct required that “[a] conviction based on circumstantial evidence

must exclude every other reasonable hypothesis except the guilt of the accused.” Carlsen v.

State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983), overruled by Geesa, 820 S.W.2d at 161.

The court in Geesa abolished this construct because it “effectively places the reviewing court in

the posture of a ‘thirteenth juror.’” Geesa, 820 S.W.2d at 159. Following Geesa, at least one

federal court and five of our sister courts have recognized that Reddie is no longer good law or is

not controlling and of limited value. 2 We agree and hold that Reddie is no longer controlling to

the extent it relied on the reasonable hypothesis analytical construct.

        The facts in Shields’s case are similar to a post-Geesa case decided by the First Court of

Appeals. See Hearne v. State, 80 S.W.3d 677, 678–79 (Tex. App.—Houston [1st Dist.] 2002, no

pet.). There, the driver argued the evidence was insufficient to support a DWI conviction

because the State failed to prove he operated his vehicle. Id. at 679. A police officer, patrolling

2
 United States v. Oliva, No. C-09-341, 2009 WL 1918458, at *2 (S.D. Tex. July 1, 2009); Benedict v. State, No. 02-
03-00310-CR, 2004 WL 2108837, at *5 (Tex. App.—Fort Worth Sept. 23, 2004, pet. ref’d) (mem. op., not
designated for publication); Barton v. State, 882 S.W.2d 456, 458 (Tex. App.—Dallas 1994, no pet.); Purvis v.
State, 4 S.W.3d 118, 120 n.1 (Tex. App.—Waco 1999, no pet.); Frohwein v. State, No. 08-03-00488-CR, 2005 WL
1413210, at *4 (Tex. App.—El Paso June 16, 2005, pet. ref’d) (not designated for publication); Drake v. State, No.
03-02-00809-CR, 2004 WL 962846, at *2 (Tex. App.—Austin May 6, 2004, no pet.) (mem. op., not designated for
publication).


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early in the morning, saw a vehicle parked in a moving lane of traffic. Id. at 678–79. The

sleeping driver was seated in the driver’s seat of the vehicle, and the vehicle’s engine was

running but the gear selector was in the “park” position. Id. at 679. The driver’s feet were not

touching the accelerator or brake pedals, nor were his hands touching any switches or the

steering wheel. Id. The officer was unable to testify as to how long the vehicle had been parked

and admitted “he did not see appellant ‘exert any action, movement or anything to attempt to

control’ the truck.” Id. The driver stipulated that he was legally intoxicated at the time but

denied operating the vehicle while intoxicated. Id. The court held that these facts could allow a

jury to reasonably infer the driver had operated his vehicle while intoxicated. Id. at 680.

        Based on the facts of Shields’s case, that the vehicle was parked between two moving

lanes of traffic in the early morning hours, the car’s engine was running, and Shields was alone

in the vehicle and was seated in the driver’s seat, we conclude the evidence was legally sufficient

to support the finding that Shields operated his vehicle while intoxicated. See Hearne, 80

S.W.3d at 678–80; Freeman v. State, 69 S.W.3d 374, 375 (Tex. App.—Dallas 2002, no pet.); cf.

Kuciemba, 310 S.W.3d at 462 (requiring a temporal link between a defendant’s operation of a

vehicle and his intoxication); Scillitani v. State, 343 S.W.3d 914, 917 (Tex. App.—Houston

[14th Dist.] 2011, pet. filed).

                                           CONCLUSION

        Considering the evidence in a light most favorable to the verdict, as we must, the

evidence was legally sufficient to support Shields’s conviction for DWI. See Jackson, 443 U.S.

at 319; Brooks, 323 S.W.3d at 899. The evidence is legally sufficient to support the finding that

Shields operated his vehicle while intoxicated in a public place. See TEX. PENAL CODE ANN.




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§ 49.04; Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). Therefore, we affirm the

trial court’s judgment.



                                              Rebecca Simmons, Justice

DO NOT PUBLISH




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