
                                          NO. 07-09-00022-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                            MARCH 18, 2010




                                       CARLOS MOLINA, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE



                         FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY;

                          NO. C-1-CR-07-218743; HONORABLE DAVID CRAIN, JUDGE



Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                          MEMORANDUM OPINION


      Appellant, Carlos Molina, appeals his conviction for the offense of driving while  intoxicated.
We affirm.

                                              Background

      On September 14, 2007, Austin police officers were  called  out  to  investigate  a  suspicious
vehicle in a cul-de-sac.  When the police officers arrived, they  observed  appellant  asleep  behind
the wheel of the vehicle.  The keys were in the vehicle’s ignition and the car and  radio  were  both
on.  Appellant was also in a position in the vehicle that he was able to reach  the  brake  pedal.[1]
The police officers proceeded to wake up  appellant  and,  after  conducting  field  sobriety  tests,
arrested him for driving while intoxicated.

      At trial, the issue of contention was the definition of “operating.”   Both sides  agreed  that
appellant was not observed driving the vehicle, but  they  disagreed  on  whether  the  evidence  was
sufficient to demonstrate that appellant “operated” the  vehicle.   After  listening  to  appellant’s
request for a directed verdict, the trial court submitted the issue to  the  jury  who  proceeded  to
find appellant guilty of the offense.  Appellant appeals the sufficiency of the evidence.

                                          Legal Sufficiency


      When an appellant challenges both the legal and factual sufficiency of  the  evidence,  we  are
required to conduct an analysis of the legal sufficiency of the evidence first and, then, only if  we
find the evidence to be legally sufficient, do we analyze the factual sufficiency  of  the  evidence.
See Clewis v. State, 922 S.W.2d 126, 133  (Tex.Crim.App.  1996).   We  review  legal  sufficiency  by
viewing the evidence in the light most favorable to the verdict to determine  if  any  rational  fact
finder could have found the essential elements of the crime  beyond  a  reasonable  doubt.   King  v.
State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000).  The  conviction  will  be  sustained  unless  it  is
irrational or unsupported by more than a mere modicum of evidence.  Moreno v. State, 755 S.W.2d  866,
867 (Tex.Crim.App. 1988).  The fact finder is the sole judge of the credibility of the witnesses  and
of the weight to be afforded their testimony.  Barnes v. State, 876 S.W.2d  316,  321  (Tex.Crim.App.
1994).  Reconciliation of conflicts and contradictions in the evidence is within  the  fact  finder’s
province and is usually conclusive.  See Van Zandt v. State, 932  S.W.2d  88,  96  (Tex.App.–El  Paso
1996, pet. ref’d).


      To establish the offense of driving while intoxicated, the State must prove the  defendant  was
intoxicated while operating a motor vehicle in a public place.   Tex.  Penal  Code  Ann.  §  49.04(a)
(Vernon 2003).  The statute does not, however, define the term “operate.”  See Barton v.  State,  882
S.W.2d 456, 459 (Tex.App.–Dallas 1994, no pet.).  Operation of a motor  vehicle  is  found  when  the
totality of the circumstances demonstrates that the defendant took action to affect  the  functioning
of his vehicle in a manner that would enable the vehicle’s use.  See  Denton  v.  State,  911  S.W.2d
388, 390 (Tex.Crim.App. 1995).


      Reviewing the evidence in the light most favorable to the verdict, we conclude  that  the  jury
could have determine that the running vehicle, the flickering brake lights, and the  activated  radio
were indications that appellant had taken actions that affected the functioning of the  vehicle  and,
thus, was operating the vehicle prior to falling asleep.  Therefore, we conclude that the jury  could
have rationally found the essential elements of the crime beyond a  reasonable  doubt.   We  overrule
appellant’s first issue.


                                         Factual Sufficiency


       When  an  appellant  challenges  the  factual  sufficiency  of  the  evidence  supporting  his
conviction, the reviewing court must determine whether, considering all the  evidence  in  a  neutral
light, the jury was rationally justified in finding the appellant guilty beyond a  reasonable  doubt.
See Watson v. State, 204 S.W.3d  404,  415  (Tex.Crim.App.  2006).   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.  Hooper v. State, 214 S.W.3d 9, 13  (Tex.Crim.App.  2007).   In
performing a factual sufficiency review, we must give deference to the fact  finder’s  determinations
if supported by evidence and may not order a new trial  simply  because  we  may  disagree  with  the
verdict.  See Watson, 204 S.W.3d at 417.  As an appellate court, we are not justified in  ordering  a
new trial unless there is some objective basis in the record demonstrating that the great weight  and
preponderance of the evidence contradicts the jury’s verdict.  See id.   Additionally,  an  appellate
opinion addressing factual sufficiency must include a discussion of the most important evidence  that
appellant claims undermines the jury’s verdict.  Sims v. State, 99  S.W.3d  600,  603  (Tex.Crim.App.
2003).


      In this case, appellant argues that the State must show that appellant operated a motor vehicle
by demonstrating that he took action to affect the functioning of his vehicle in a manner that  would
enable the vehicle’s use.  See Denton, 911 S.W.2d at 39.   Appellant contends that  this  means  that
the court should have looked at whether appellant “exerted personal effort upon his  vehicle  .  .  .
for its intended purpose.”  See Id. at 389.  Appellant  contends  that  there  is  no  evidence  that
appellant  exerted  any  effort  to  operate  the  vehicle  for  its  intended  purpose,  i.e.,   for
transportation.  At most, appellant contends that appellant was in the car listening  to  the  radio.
Although we may agree with appellant that turning on the radio does not further the operation of  the
vehicle for its intended purpose, we do  not  agree  with  appellant’s  statement  that  turning  the
ignition key and running the motor did not facilitate  the  operation  of  the  vehicle  beyond  mere
preparation.   A vehicle’s intended purpose is to provide transportation by  mechanical  means  which
entails the ignition of the vehicle’s combustible engine.  There simply is no middle ground  in  what
constitutes the commission of an operating a vehicle while intoxicated  offense.   Any  action  would
either not be more that mere preparation or it would fall within the broad definition  of  “operating
a motor vehicle.”   Strong  v.  State,  87  S.W.3d  206,  215  (Tex.App.—Dallas  2002,  pet.  ref’d).
Therefore, since any person intending to drive would first have to turn the key to start the car,  we
conclude that the fact that the key was turned and the engine was running  could  be  interpreted  by
the jury as operating the vehicle.  Though no one observed appellant  start  the  vehicle,  the  fact
that appellant was the only person in the vehicle, in the driver’s seat,  and  able  to  operate  the
brake lights is circumstantial evidence that the jury could have used in  determining  the  guilt  of
appellant.  See Hooper, 214 S.W.3d at 14 (juries are permitted to  make  reasonable  inferences  from
the evidence).  Giving deference to the jury’s determinations if supported by the  evidence,  we  may
not order a new trial even were we to disagree with the verdict.  See Watson, 204 S.W.3d at 417.   We
conclude that there is no objective basis in the record  demonstrating  that  the  great  weight  and
preponderance of the evidence contradicts the jury’s  verdict.   See  id.   We  overrule  appellant’s
second issue.

                                              Conclusion


      Having overruled appellant’s issues, we affirm.



                                        Mackey K. Hancock
                                             Justice
Do not publish.
-----------------------
      [1] A video was admitted during the trial that showed the vehicle’s brake lights flickering  on
or off during the investigation of this case.


