                                                                                  PD-1230-14
                                                                 COURT OF CRIMINAL APPEALS
February 6, 2015                                                                  AUSTIN, TEXAS
                                                                Transmitted 2/4/2015 1:23:18 AM
                                                                  Accepted 2/6/2015 8:37:45 AM
                                                                                   ABEL ACOSTA
               COURT OF CRIMINAL APPEALS                                                  CLERK



                                     PD-1230-14

                    Chad William Murray, Appellant,
                                   v.
                       State of Texas, Appellee.

                   On Discretionary Review from No. 07-13-00356-CR
                          Seventh Court of Appeals, Amarillo

                             On Appeal from No. M0187-11
                        66th Judicial District Court, Hill County



                               Appellant’s Brief
  Michael Mowla
  445 E. FM 1382 #3-718
  Cedar Hill, Texas 75104
  Phone: 972-795-2401
  Fax: 972-692-6636
  michael@mowlalaw.com
  Texas Bar No. 24048680
  Attorney for Appellant




                   ORAL ARGUMENT NOT PERMITTED BY THE COURT
I. Identity of Parties, Counsel, and Judges

Chad William Murray, Appellant.

Michael Mowla, Attorney for Appellant on Discretionary Review, 445 E. FM
1382 #3-718, Cedar Hill, Texas 75104, phone 972-795-2401, fax 972-692-6636,
email michael@mowlalaw.com.

Mark T. Lassiter, Attorney for Appellant at Trial and on Direct Appeal, 3500
Maple Avenue Suite 400, Dallas, Texas 75219, phone (214) 845-7007, fax (214)
845-7006, email mark@lassiterlawoffice.com.

State of Texas, Appellee.

David Holmes, Hill County Attorney, Attorney for Appellee, P.O. Box 253
Hillsboro, TX 76645-2353, phone 254-582-4047, fax 254-582-4013.

Lisa McMinn, State Prosecuting Attorney, Attorney for Appellee, P.O. Box
13046, Austin, Texas 78711-3046, phone 512-463-1660, fax 512-463-5724, email
Lisa.McMinn@spa.texas.gov.

John Messinger, Assistant State Prosecuting Attorney, Attorney for Appellee,
P.O. Box 13046, Austin, Texas 78711-3046, phone 512-463-1660, fax 512-463-
5724, email john.messinger@spa.state.tx.us.

Bob McGregor, Jr., Presiding Judge (during trial), 66th Judicial District
Court, Hill County, P.O. Box 284, Hillsboro, Texas 76645-0284, phone 254-582-
4045, fax 254-582-4010.

Lee Harris, Presiding Judge (present), 66th Judicial District Court, Hill
County, P.O. Box 284, Hillsboro, Texas 76645-0284, phone 254-582-4045, fax
254-582-4010.




                                 Page 2 of 47
II.        Table of Contents

I.         Identity of Parties, Counsel, and Judges ..........................................................2 
II.        Table of Contents .............................................................................................3 
III.       Table of Authorities .........................................................................................6 
IV.        Appendix Index ...............................................................................................9 
V.         Statement of the Case and Procedural History ..............................................10 
VI.        Statement Regarding Oral Argument ............................................................12 
VII.  Issues Presented .............................................................................................13 
VIII.  Facts ...............................................................................................................14 
IX.        Summary of the Arguments ...........................................................................16 
X.         Argument .......................................................................................................17 
       1.  Appellant’s First Issue: Because the Court of Appeals acquitted
           Appellant for the DWI conviction, a result that is the
           “functional equivalent of an acquittal,” Appellant’s
           constitutional rights against double jeopardy under the Fifth and
           Fourteenth Amendments would be violated if this Court
           reverses the judgment and opinion of the Seventh Court of
           Appeals. .........................................................................................................17 
           i.        Introduction .........................................................................................17 
           ii.       Appellant may raise this issue for the first time before
                     this Court because: (1) of the fundamental nature of
                     double jeopardy protections; and (2) logically Appellant
                     could not have raised this issue in the Court of Appeals
                     since it is the opinion and judgment of the Court of
                     Appeals that acquitted him. .................................................................18 
           iii.      The double jeopardy clause of the Fifth Amendment
                     protects Appellant from a retrial on this case, any
                     postacquittal factfinding or other proceeding by any
                     court, or reinstatement of the Judgment of Conviction by
                     Jury and sentence because the opinion and judgment of
                     the Court of Appeals is the “functional equivalent of an
                     acquittal.” ............................................................................................18 
           iv.       Conclusion ...........................................................................................23 

                                                        Page 3 of 47
2.  Response to State’s Issue: The State’s question for review
    presumes that a person who is passed out behind the wheel of a
    running vehicle while parked is “operating” the vehicle.
    However, this Court should conclude that in order to “operate”
    a vehicle for purposes of the DWI statutes, approximately at the
    same time the person is intoxicated, the person must move or
    attempt to move the vehicle in a public place. Further, the
    Court of Appeals did not err when it found that the evidence
    was legally insufficient to prove that Appellant committed
    Driving While Intoxicated. ............................................................................25 
    i.       Introduction .........................................................................................25 
    ii.      Standard of review for legal sufficiency under the
             Jackson v. Virginia and Brooks standard ............................................26 
    iii.     160 years of Supreme Court precedent provides that the
             law does not presume that Appellant was engaged in
             criminal activity merely because Appellant was asleep in
             his vehicle on a cold January night while parked on
             private property. ..................................................................................29 
    iv.      The opinion of the Court of Appeals is correct because it
             considered all the evidence presented against Appellant
             in the light most favorable to the verdict. Further, for
             purposes of the DWI statutes, the test for “operating” a
             vehicle should be that approximately at the same time the
             person was intoxicated, the person moved or attempted to
             move the vehicle in a public place. .....................................................31 
    v.       A review of the rulings from the courts of some other
             states show that they also generally require that in order
             to “operate” a vehicle for purposes of the DWI statutes,
             approximately at the same time the person is intoxicated,
             the person must move or attempt to move the vehicle in a
             public place. ........................................................................................36 
    vi.      The Court of Appeals did not err when it found that the
             evidence was legally insufficient to prove that Appellant
             committed Driving While Intoxicated. ...............................................41 
    vii.     This Court should adopt the proposed definition of
             “operating” because Texas public policy should favor
             allowing intoxicated persons to “sleep it off” in their

                                               Page 4 of 47
                 vehicles if they are unable to safely seek shelter without
                 driving, which clearly is the “lesser of three evils” when
                 compared to: (1) attempting to drive while intoxicated; or
                 (2) exposing themselves to the dangers of the elements or
                 being in the open without the shelter of their vehicles. ......................43 
        viii.  Conclusion ...........................................................................................45 
XI.     Conclusion and Prayer ...................................................................................46 
XII.  Certificate of Service .....................................................................................46 
XIII.  Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................47 




                                                   Page 5 of 47
III. Table of Authorities

Cases 
Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) .............................. 28, 43
Allen v. State, 651 S.W.2d 267 (Tex. Crim. App. 1983) .........................................27
Arizona v. Rumsey, 467 U.S. 203 (1984) .................................................................22
Atkinson v. State, 627 A.2d 1019 (Md. 1993)................................................... 37, 38
Barton v. State, 882 S.W.2d 456 (Tex. App. Dallas 1994, no pet.) ................. 34, 42
Benavidez v. State, 323 S.W.3d 179 (Tex. Crim. App. 2010) .................................20
Benton v. Maryland, 395 U.S. 784 (1969) ...............................................................19
Boston v. Lecraw, 58 U.S. 426 (1855) .....................................................................29
Carrizales v. State, 414 S.W.3d 737 (Tex. Crim. App. 2013).......................... 26, 42
Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001)........................................28
Crist v. Bretz, 437 U.S. 28 (1978)............................................................................19
Delay v. State, 443 S.W.3d 909 (Tex. Crim. App. 2014) ........................................29
Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995) ............................... 32, 33
Dornbusch v. State, 262 S.W.3d 432 (Tex. App. Fort Worth 2008, no
     pet.) ................................................................................................................41
Evans v. Michigan, 133 S.Ct. 1069 (2013) ..............................................................21
Fong Foo v. United States, 369 U.S. 141 (1962).....................................................21
Foster v. State, 635 S.W.2d 710 (Tex. Crim. App. 1982) .......................................27
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) ......................................28
Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000) .......................................18
Hearne v. State, 80 S.W.3d 677 (Tex. App. Houston [1st Dist.] 2002,
     no pet.) ...........................................................................................................42
Hernandez v. State, 773 S.W.2d 761 (Tex. App. San Antonio 1989, no
     pet.) ................................................................................................................42
Hudson v. United States, 522 U.S. 93 (1997) ..........................................................27
Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010) ................................. 28, 43
Jackson v. Virginia, 443 U.S. 307 (1979) ........................................................ passim
Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) ....................................28
                                                      Page 6 of 47
Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) ................................ 32, 33
Langs v. State, 183 S.W.3d 680 (Tex. Crim. App. 2006) ........................................19
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .................... 26, 27, 29, 42
Martinez v. Illinois, 134 S.Ct. 2070 (2014) ...................................................... 20, 23
McFarland v. State, 930 S.W.2d 99 (Tex. Crim. App. 1996) .................................27
Moreno v. State, 294 S.W.3d 594 (Tex. Crim. App. 2009) .....................................20
Murray v. State, 440 S.W.3d 927 (Tex. App. Amarillo 2014) ........................ passim
Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) .....................................27
North Carolina v. Pearce, 395 U.S. 711 (1969) ......................................................19
Ortiz v. State, 577 S.W.2d 246 (Tex. Crim. App. 1979) .........................................27
Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001) ....................................................22
Pope v. State, 802 S.W.2d 418 (Tex. App. Austin 1991, no pet.) ...........................42
Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006) ......................................28
Prible v. State, 175 S.W.3d 724 (Tex. Crim. App. 2005)................................. 26, 42
Reddie v. State, 736 S.W.2d 923 (Tex. App. San Antonio 1987, pet.
      ref.) .......................................................................................................... 35, 36
Reynolds v. State, 744 S.W.2d 156 (Tex. App. Amarillo 1987, pet.
     ref.) .................................................................................................................41
Sanabria v. United States, 437 U.S. 54 (1977) ........................................................21
Serfass v. United States, 420 U.S. 377 (1975) .........................................................20
Smalis v. Pennsylvania, 476 U.S. 140 (1986)..........................................................19
Smith v. Massachusetts, 543 U.S. 462 (2005) .................................................. 19, 22
Sorrells v. State, 343 S.W.3d 152 (Tex. Crim. App. 2011) .....................................28
State v. Daly, 313 A.2d 194 (N.J. 1973) ..................................................................39
State v. Proctor, 841 S.W.2d 1 (Tex. Crim. App. 1992) .........................................19
State v. Zavala, 666 P.2d 456 (Ariz. 1983)..............................................................40
Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533
      (1983) .............................................................................................................30
United States v. Ball, 163 U.S. 662 (1896) ..............................................................21
United States v. Black Lance, 454 F.3d 922 (8th Cir. 2006) ...................................23

                                                      Page 7 of 47
United States v. Hunt, 212 F.3d 539 (10th Cir. 2000) .............................................23
United States v. Lynch, 162 F.3d 732 (2d Cir. 1998) ..............................................22
United States v. Martin Linen Supply Co., 430 U.S. 564 (1977) ............................20
United States v. Scott, 437 U.S. 82 (1978) ..............................................................22
Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) .....................................28
Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012) ............................. 26, 29, 42
Statutes 
Md. Transportation Code § 21-902 (1992) ..............................................................37
Tex. Code Crim. Proc. Art. 44.25 (2015) ................................................................27
Tex. Code Crim. Proc. Arts. 1.10 & 1.11 (2015) ....................................................20
Tex. Pen. Code § 49.04 (2011) ................................................................... 11, 32, 42
Other Authorities 
NHTSA’s 2012 Motor Vehicle Crashes: Overview, http://www-
    nrd.nhtsa.dot.gov/Pubs/811856.pdf ...............................................................43
Rules 
Tex. Rule App. Proc. 43.2 (2015) ..................................................................... 23, 27
Tex. Rule App. Proc. 68.11 (2015) ..........................................................................46
Tex. Rule App. Proc. 68.4 (2015) ............................................................................12
Tex. Rule App. Proc. 9.4 (2015) ..............................................................................47
Constitutional Provisions 
U.S. Const. Amend. V................................................................................. 19, 26, 27
U.S. Const. Amend. XIV ............................................................................ 19, 26, 27




                                                Page 8 of 47
IV. Appendix Index

Appendix 1: Judgment and Opinion of the Court of Appeals in Murray v. State,
440 S.W.3d 927 (Tex. App. Amarillo 2014)




                                  Page 9 of 47
To The Honorable Judges of the Court of Criminal Appeals:

      Appellant Chad William Murray respectfully submits this Brief:


V. Statement of the Case and Procedural History

      This case arises out of the judgment and opinion of the Seventh Court of

Appeals in Murray v. State, 440 S.W.3d 927 (Tex. App. Amarillo 2014) (See

Appendix 1), in which the Court of Appeals reversed the Judgment of Conviction

by Jury and sentence for Driving While Intoxicated imposed on Appellant, and

rendered a judgment of acquittal.     In its Brief, the State poses the following

question to the Court: “Is a driver who is passed out behind the wheel of a running

vehicle ‘operating’ it for the purposes of DWI?” State’s Brief, p. 2.

      However, as Appellant will show, because the Court of Appeals acquitted

Appellant for the DWI conviction, a result that is the “functional equivalent of an

acquittal,” Appellant’s constitutional rights against double jeopardy under the Fifth

and Fourteenth Amendments would be violated if this Court reverses the judgment

and opinion of the Seventh Court of Appeals.

      In the alternative, Appellant will show that the State’s question for review

presumes that a person who is passed out behind the wheel of a running vehicle

while parked is “operating” the vehicle. However, Appellant will show that this

Court should conclude that in order to “operate” a vehicle for purposes of the DWI

statutes, approximately at the same time the person is intoxicated, the person must

                                    Page 10 of 47
move or attempt to move the vehicle in a public place. And as a result, the Court

of Appeals did not err when it found that the evidence was legally insufficient to

prove that Appellant committed Driving While Intoxicated.

       On September 9, 2013, in the 66th Judicial District Court of Hill County,

under Cause Number M0187-11, Appellant was convicted by a jury of Driving

While Intoxicated, second offense (class A misdemeanor). (CR, 67-68)1; See Tex.

Pen. Code § 49.04 (2011). On the same day, Appellant was sentenced to one year

in the county jail, but his sentence was suspended, and he was placed on

community supervision for a period of two years. (CR, 67-68).

       Appellant appealed the Judgment of Conviction by Jury and sentence to the

Seventh Court of Appeals. On June 26, 2014, the Court of Appeals reversed the

Judgment of Conviction by Jury and sentence for Driving While Intoxicated

imposed on Appellant, and rendered a judgment of acquittal. Murray v. State, 440

S.W.3d 927 (Tex. App. Amarillo 2014).

       The State filed a petition for discretionary review, which was granted on

November 19, 2014. On December 18, 2014, the State filed its Brief on the Merits.

Appellant now responds with his Brief.



1
 The Clerk’s Record, which is comprised of a single volume and a sealed volume, is referenced
throughout this Brief as “CR” followed by the page number of the Clerk’s Record. The
Reporter’s Record, which is comprised of three volumes, is referenced throughout this Brief as
“RR” followed by the volume number and page number.


                                        Page 11 of 47
VI. Statement Regarding Oral Argument

      In this Court’s November 19, 2014 notice in which it granted the State’s

petition for discretionary review, the Court announced that oral argument will not

be permitted. See Tex. Rule App. Proc. 68.4(c) (2015). However, should this

Court determine that its decisional process will be significantly aided by oral

argument, undersigned counsel will be honored to present oral argument.




                                   Page 12 of 47
VII. Issues Presented

Appellant’s First Issue: Because the Court of Appeals acquitted Appellant for the
DWI conviction, a result that is the “functional equivalent of an acquittal,”
Appellant’s constitutional rights against double jeopardy under the Fifth and
Fourteenth Amendments would be violated if this Court reverses the judgment and
opinion of the Seventh Court of Appeals.

Response to State’s Issue: The State’s question for review presumes that a person
who is passed out behind the wheel of a running vehicle while parked is
“operating” the vehicle. However, this Court should conclude that in order to
“operate” a vehicle for purposes of the DWI statutes, approximately at the same
time the person is intoxicated, the person must move or attempt to move the vehicle
in a public place. Further, the Court of Appeals did not err when it found that the
evidence was legally insufficient to prove that Appellant committed Driving While
Intoxicated.




                                   Page 13 of 47
VIII. Facts

      The findings of fact by the Court of Appeals are supported by the record on

appeal: a Texas trooper found Appellant “alone, reclining, asleep in the seat of his

pickup in the cold early hours of a January morning (January 16, 2011).” (RR2,

6); Murray, Id. at 928. The vehicle was parked on a private drive near a fireworks

stand with its radio on. Murray, Id. at 928. The trooper described the vehicle as

“...pulled off the roadway and kind of like in a little driveway. There was a

fireworks stand there that had just been broken into a couple of weeks before that,

and he was parked in the driveway of that location...” (RR2, 7).       The trooper

clarified his answers as follows when questioned by the State:

      Question: Would that be considered a public place where the vehicle
      was parked?

      Answer: Not in that driveway, it wouldn’t. That was private property.

(RR2, 7).     A portion of the vehicle remained on a shoulder adjacent to the

roadway, but no part of the vehicle was on the roadway. Murray, Id. at 928.

Although the vehicle’s motor was running, its transmission was in “park” mode.

Murray, Id. at 929; (RR2, 8).

      There were no containers containing alcoholic substances found in or around

the vehicle. Murray, Id. at 929. There was no evidence showing how long

Appellant was inside the vehicle. Id. There was no evidence showing how long the

vehicle was parked at its location. Id. There was no evidence even showing

                                    Page 14 of 47
whether Appellant was the one who drove the vehicle to its location. Id.       The

trooper who first encountered and awoke Appellant acknowledged that Appellant

was not operating the vehicle in his presence. Id. The same trooper also testified

that: (1) a sleeping person is not operating a vehicle; and (2) he did not know if

Appellant had consumed beer at the scene or elsewhere. Id.          There was no

evidence showing whether Appellant owned or was in some way affiliated with the

fireworks stand. Id. There was no evidence showing whether Appellant began

ingesting alcoholic substances at a location near the fireworks stand. Id. Finally,

there was no evidence showing whether establishments existed nearby where

intoxicating substances could be purchased. Id.




                                   Page 15 of 47
IX. Summary of the Arguments

      Appellant will first argue that because the Court of Appeals acquitted

Appellant for the DWI conviction, a result that is the “functional equivalent of an

acquittal,” Appellant’s constitutional rights against double jeopardy under the Fifth

and Fourteenth Amendments would be violated if this Court reverses the judgment

and opinion of the Seventh Court of Appeals. As a result, Appellant will ask this

Court to affirm the opinion and judgment of the Court of Appeals.

      Second, in response to the State’s issue, Appellant will argue that the State’s

question for review presumes that a person who is passed out behind the wheel of a

running vehicle while parked is “operating” the vehicle. However, this Court

should conclude that in order to “operate” a vehicle for purposes of the DWI

statutes, approximately at the same time the person is intoxicated, the person must

move or attempt to move the vehicle in a public place. Thus, the Court of Appeals

did not err when it found that the evidence was legally insufficient to prove that

Appellant committed Driving While Intoxicated.       As a result, Appellant will ask

this Court to affirm the opinion and judgment of the Court of Appeals.




                                    Page 16 of 47
X. Argument

   1. Appellant’s First Issue: Because the Court of Appeals acquitted
      Appellant for the DWI conviction, a result that is the “functional
      equivalent of an acquittal,” Appellant’s constitutional rights against
      double jeopardy under the Fifth and Fourteenth Amendments would be
      violated if this Court reverses the judgment and opinion of the Seventh
      Court of Appeals.

          i. Introduction
      The Court of Appeals acquitted Appellant for the DWI conviction. This is

the “functional equivalent of an acquittal.” Thus, Appellant’s constitutional rights

against double jeopardy under the Fifth and Fourteenth Amendments would be

violated if this Court reverses the judgment and opinion of the Seventh Court of

Appeals because any such reversal would presumably reinstate the Judgment of

Conviction by Jury and sentence after Appellant was acquitted by the Court of

Appeals. And even if such reversal does not reinstate the Judgment of Conviction

by Jury and sentence and instead remands the case back to the Court of Appeals or

the trial court, because there would be “postacquittal factfinding proceedings going

to guilt or innocence,” the double jeopardy clause is still violated.

      As a result, this Court should affirm the opinion and judgment of the Court

of Appeals. The State should not get “another shot” at Appellant merely because

the State failed to present legally sufficient evidence at trial.




                                      Page 17 of 47
          ii. Appellant may raise this issue for the first time before this Court
              because: (1) of the fundamental nature of double jeopardy
              protections; and (2) logically Appellant could not have raised this
              issue in the Court of Appeals since it is the opinion and judgment
              of the Court of Appeals that acquitted him.

       Generally, due to the “fundamental nature of double jeopardy protections,”

an appellant may raise a claim of double jeopardy for the first time on appeal

provided that: (1) the undisputed facts show the double jeopardy violation is

clearly apparent on the face of the record; and (2) enforcement of the usual rules of

procedural default would serve no legitimate state interests. See Gonzalez v. State,

8 S.W.3d 640, 643 (Tex. Crim. App. 2000). In the case before this Court, the

record is clear that double jeopardy had already attached when the Court of

Appeals reversed the Judgment of Conviction by Jury and sentence for Driving

While Intoxicated imposed on Appellant, and rendered a judgment of acquittal.

Further, procedural default does not apply here because logically Appellant could

not have raised this issue in the Court of Appeals since it is the opinion and

judgment of the Court of Appeals that acquitted him. And, it is the State that filed

for discretionary review, not Appellant. As a result, Appellant properly raises this

issue for the first time in this Brief.


          iii. The double jeopardy clause of the Fifth Amendment protects
               Appellant from a retrial on this case, any postacquittal factfinding
               or other proceeding by any court, or reinstatement of the
               Judgment of Conviction by Jury and sentence because the opinion


                                          Page 18 of 47
            and judgment of the Court of Appeals is the “functional
            equivalent of an acquittal.”

      The Fifth Amendment of the United States Constitution provides that no

person shall be put in jeopardy of life or liberty twice for the same offense. U.S.

Const. Amend. V; see North Carolina v. Pearce, 395 U.S. 711, 717 (1969) and

Benton v. Maryland, 395 U.S. 784, 794 (1969). This protection includes the

fundamental requirement that a defendant cannot be subjected to “postacquittal

factfinding proceedings going to guilt or innocence.” See Smith v. Massachusetts,

543 U.S. 462, 467 (2005) and Smalis v. Pennsylvania, 476 U.S. 140, 145 (1986).

And, the Fourteenth Amendment’s Due Process Clause extends the protections of

the Double Jeopardy Clause of the Fifth Amendment to state prosecutions.

See Benton, 395 U.S. at 794; U.S. Const. Amend. XIV. Finally, there are three

distinct types of double jeopardy claims: (1) a second prosecution for the same

offense after acquittal; (2) a second prosecution for the same offense after

conviction; and (3) multiple punishments for the same offense. See Langs v. State,

183 S.W.3d 680, 685 (Tex. Crim. App. 2006).

      Next, jeopardy attached in Appellant’s case when the jury was empanelled

and sworn. See Crist v. Bretz, 437 U.S. 28, 37-38 (1978); State v. Proctor, 841

S.W.2d 1, 4 (Tex. Crim. App. 1992). The protection provided by the double

jeopardy clause cannot be invoked unless jeopardy actually attached in a former

proceeding, but in Appellant’s case, jeopardy attached. Serfass v. United States,

                                   Page 19 of 47
420 U.S. 377, 391-394 (1975).

      When determining whether an acquittal occurred for the purposes of

double jeopardy, a court must examine whether the “acquittal” (regardless of how

the “acquittal” is referred to)...”...actually represent[ed] a resolution, correct or not,

of some or all of the factual elements of the offense charged.” United States v.

Martin Linen Supply Co., 430 U.S. 564, 571 (1977); Benavidez v. State, 323

S.W.3d 179, 181 (Tex. Crim. App. 2010) (A reviewing court may enter a judgment

of acquittal if the trial court’s ruling amounts to a de facto but unacknowledged

acquittal, or the reviewing court finds that the evidence is insufficient to support

the conviction). In other words, an acquittal occurs if the judgment “...resolved any

of the ultimate elements in the defense.” Moreno v. State, 294 S.W.3d 594, 600

(Tex. Crim. App. 2009); see also, e.g., Tex. Code Crim. Proc. Arts. 1.10 & 1.11

(2015) (Defendant is also protected by these provisions of the Texas Code of

Criminal Procedure, which provide that no person shall be put in jeopardy of life or

liberty twice for the same offense.).

      The Supreme Court of the United States recently addressed double jeopardy

and acquittals in Martinez v. Illinois, 134 S.Ct. 2070 (2014). Although in Martinez

the acquittal was ordered by the trial court, the concept is the same regardless of

when a court renders a verdict of acquittal. The Supreme Court found that its

“...cases have defined an acquittal to encompass any ruling that the


                                        Page 20 of 47
prosecution’s proof is insufficient to establish criminal liability for an

offense.” Id. at 2076 (emphasis added); citing Evans v. Michigan, 133 S.Ct. 1069,

1071 (2013).

      The opinion and judgment of the Court of Appeals is clearly a “ruling” that

the state’s proof was insufficient to establish Appellant’s liability for DWI. See

Martinez, Id. at 2076.     The Supreme Court does not differentiate between

acquittals that occur at the trial court level or the appellate court level. In other

words, regardless of when a court makes a “ruling” that the state’s proof was

insufficient to establish Appellant’s liability, “an acquittal is an acquittal.” This

concept dates back over 100 years, as in United States v. Ball, 163 U.S. 662, 671

(1896), the Supreme Court held,

      “As to the defendant who had been acquitted by the verdict duly
      returned and received, the court could take no other action than to
      order his discharge. The verdict of acquittal was final, and could not
      be reviewed, on error or otherwise, without putting him twice in
      jeopardy, and thereby violating the Constitution. However it may be
      in England, in this country a verdict of acquittal, although not
      followed by any judgment, is a bar to a subsequent prosecution for the
      same offence.” (internal citations omitted).

Numerous other cases hold the same: retrial or further consideration of the case

following any court-decreed acquittal is barred even if the acquittal is “based upon

an egregiously erroneous foundation.” See Fong Foo v. United States, 369 U.S.

141, 143 (1962); Sanabria v. United States, 437 U.S. 54, 68-69 (1977) (“That ‘[a]

verdict of acquittal...[may] not be reviewed...without putting [the defendant] twice
                                    Page 21 of 47
in jeopardy, and thereby violating the Constitution,’ has....been described as ‘the

most fundamental rule in the history of double jeopardy jurisprudence.’”); Smith,

543 U.S. at 473 (Mistaken understanding of what evidence would suffice to sustain

a conviction); Arizona v. Rumsey, 467 U.S. 203, 211 (1984) (Reliance on an error

of law did not change the double jeopardy effects of the judgment that amounted to

an acquittal on the merits).

      And as the Supreme Court held in United States v. Scott, 437 U.S. 82, 91

(1978), a verdict of acquittal is not the same as a reversal due to procedural rulings,

which lead to dismissals or mistrials on a basis unrelated to factual guilt or

innocence. Rather, acquittals are substantive rulings that conclude proceedings

absolutely, and thus implicate double jeopardy. Further, “a verdict of acquittal

cannot be reviewed, on error or otherwise, without putting a defendant twice in

jeopardy, and thereby violating the Constitution.” Id. at 90.

      Many other courts have ruled essentially that “an acquittal is an acquittal.”

and when any court acquits a defendant, this amounts to the functional equivalent

of an acquittal, and the double jeopardy clause of the Fifth Amendment bars a

retrial or reconsideration of the case. See, e.g., Piaskowski v. Bett, 256 F.3d 687,

694 (7th Cir. 2001) (Double jeopardy bars a retrial because the court’s holding that

the   evidence    was    insufficient     acted    as   a   “functional   equivalent   of

an acquittal.”); United States v. Lynch, 162 F.3d 732, 735 (2d Cir. 1998) (Double


                                        Page 22 of 47
jeopardy bars the government to appeal an acquittal because government failed to

prove facts sufficient to establish element of charge); United States v. Black Lance,

454 F.3d 922, 924-925 (8th Cir. 2006) (Double jeopardy bars any further

consideration of the case because the trial court’s dismissal with prejudice was

functional equivalent of acquittal, not a mistrial); United States v. Hunt, 212 F.3d

539, 543-544 (10th Cir. 2000) (Double jeopardy bars the government’s appeal of

an acquittal because government failed to prove facts sufficient to establish

elements of charge).

      Like in Martinez and the other cases cited above, the Court of Appeals

clearly made a “ruling” that acquitted Appellant. And like in Martinez, the Court

of Appeals entered a “textbook acquittal” in Appellant’s case, which was “a

finding that the State’s evidence cannot support a conviction.” Martinez, Id. at

2076. The Court of Appeals is empowered to do just what it did: to reverse the

trial court’s judgment in whole or in part and render the judgment that the trial

court should have rendered, which is for an acquittal. See Tex. Rule App. Proc.

43.2(c) (2015).


         iv. Conclusion
      Because the Court of Appeals acquitted Appellant for the DWI conviction, a

result that is the “functional equivalent of an acquittal,” Appellant’s constitutional

rights against double jeopardy under the Fifth and Fourteenth Amendments would

                                    Page 23 of 47
be violated if this Court reverses the judgment and opinion of the Seventh Court of

Appeals. As a result, this Court should affirm the opinion and judgment of the

Court of Appeals.




                                   Page 24 of 47
   2. Response to State’s Issue: The State’s question for review presumes that
      a person who is passed out behind the wheel of a running vehicle while
      parked is “operating” the vehicle. However, this Court should conclude
      that in order to “operate” a vehicle for purposes of the DWI statutes,
      approximately at the same time the person is intoxicated, the person must
      move or attempt to move the vehicle in a public place. Further, the Court
      of Appeals did not err when it found that the evidence was legally
      insufficient to prove that Appellant committed Driving While
      Intoxicated.

         i. Introduction
      Without waiving the arguments above regarding double jeopardy that arise

from the acquittal rendered by the Court of Appeals, Appellant argues that the

State’s question for review of “[I]s a driver who is passed out behind the wheel of

a running vehicle ‘operating’ it for the purposes of DWI?” does not fully address

the legal issue in this case. This question presumes that a person who is passed out

behind the wheel of a running vehicle while parked is actually operating the

vehicle. Appellant argues that this presumption does not consider that in order to

“operate” a vehicle for the purpose of the DWI statutes, the precedence and the

realities of DWI require that approximately at the same time the person was

intoxicated, the person moved or attempted to move the vehicle in a public place.

Appellant will further argue that for purposes of the DWI statutes, this Court

should adopt this as the definition of “operate.”      By doing so, while giving

deference to the precedence on this issue, this Court will eliminate the ambiguity




                                    Page 25 of 47
and confusion surrounding the definition of “operate” or “operating” for purposes

of the DWI statutes, and promote good Texas public policy.


         ii. Standard of review for legal sufficiency under the Jackson v.
             Virginia and Brooks standard
      The Court of Appeals reversed the Judgment of Conviction by Jury and

sentence for DWI because it found that the evidence presented by the State was not

legally sufficient to support a conviction for DWI. When reviewing a claim that

the evidence is legally insufficient to support the conviction, an appellate court

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

elements of the crime beyond a reasonable doubt.” Laster v. State, 275 S.W.3d

512, 517 (Tex. Crim. App. 2009) (emphasis added), quoting Jackson v. Virginia,

443 U.S. 307, 316-319 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010); Prible v. State, 175 S.W.3d 724, 729-730 (Tex. Crim. App. 2005);

Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Carrizales v. State,

414 S.W.3d 737, 742 (Tex. Crim. App. 2013).

      The Due Process Clauses of the Fifth and Fourteenth Amendments require

that a criminal conviction be supported not only by proof beyond a reasonable

doubt regarding every essential element of a crime, but that such a determination

be made by a rational trier of fact. U.S. Const. Amend. V; U.S. Const. Amend.

XIV; Laster, 275 S.W.3d at 517; Jackson v. Virginia, 443 U.S. at 316-319. After


                                   Page 26 of 47
giving “proper deference” (and not total deference) to the trier of fact, an appellate

court must “uphold the verdict unless a rational factfinder must have had

reasonable doubt as to any essential element.” Laster, 275 S.W.3d at 518, citing

Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992); see Brooks, Id. at

902 n.1.

      Although based upon a review of the facts, review of the legal sufficiency of

evidence is a determination of law. Allen v. State, 651 S.W.2d 267, 269-270 (Tex.

Crim. App. 1983). Even if the conviction may be reversed on other grounds, a

legal sufficiency review must be conducted when a challenge is raised because a

finding that the evidence is legally insufficient to support the conviction prevents a

retrial under the Double Jeopardy Clause of the Fifth Amendment. Hudson v.

United States, 522 U.S. 93, 98-99 (1997); U.S. Const. Amend. V & XIV; Ortiz v.

State, 577 S.W.2d 246, 250 (Tex. Crim. App. 1979); Foster v. State, 635 S.W.2d

710, 717 (Tex. Crim. App. 1982); McFarland v. State, 930 S.W.2d 99, 100 (Tex.

Crim. App. 1996). Should an appellate court find that the verdict is contrary to the

evidence presented at trial, the court is empowered to reverse the conviction and

enter a judgment of acquittal. Tex. Code Crim. Proc. Art. 44.25 (2015); Tex. Rule

App. Proc. 43.2(c) (2015).

      Evidence is legally sufficient only if the state has affirmatively proven each

of the essential elements of the offense. Isassi v. State, 330 S.W.3d 633, 638 (Tex.


                                    Page 27 of 47
Crim. App. 2010); Jackson, 443 U.S. at 319; Adames v. State, 353 S.W.3d 854,

859-860 (Tex. Crim. App. 2011). When conducting a legal sufficiency review, a

reviewing court considers all evidence in the record of the trial, whether admissible

or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013);

Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001); Powell v. State, 194

S.W.3d 503, 507 (Tex. Crim. App. 2006).

      The State’s case falls short if there is a material variance between the

indictment allegations and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246

(Tex. Crim. App. 2001); Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App.

2012). This may occur when a statute specifies alternate methods by which an

offense could be committed, the charging instrument pleads one of those alternate

methods, but the State proves, instead, an unpled method. Id.

      When performing a legal sufficiency review, a reviewing court does not

reevaluate the weight and credibility of the evidence and substitute its judgment for

that of the trier of fact. Isassi, 330 S.W.3d at 638. Instead, the reviewing court

determines whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (emphasis

added). The reviewing court presumes that the trier of fact resolved conflicting




                                    Page 28 of 47
inferences in favor of the verdict and defers to that resolution. Jackson, 443 U.S. at

326; Wise, 364 S.W.3d at 903.

      A reviewing court may also consider whether the trier of fact “got it wrong”

because the verdict the trier of fact renders is irrational considering the evidence

presented. See Laster, 275 S.W.3d at 517 (a legal sufficiency review “is restricted

to guarding against the rare occurrence when a factfinder does not act rationally.”).

As the Court of Criminal Appeals noted, “...sometimes appellate review of legal

sufficiency involves simply construing the reach of the applicable penal provision

in order to decide whether the evidence, even when viewed in the light most

favorable to conviction, actually establishes a violation of the law.” Delay v. State,

443 S.W.3d 909, 912-913 (Tex. Crim. App. 2014).


         iii. 160 years of Supreme Court precedent provides that the law does
              not presume that Appellant was engaged in criminal activity
              merely because Appellant was asleep in his vehicle on a cold
              January night while parked on private property.
      About 160 years ago, Justice Robert Grier of the Supreme Court of the

United States wrote in Boston v. Lecraw, 58 U.S. 426 (1855), that “the law does

not presume any (person’s) acts to be illegal...” The full relevant part of Justice

Grier’s holding is as follows:

      “That the law will not presume any man’s acts to be illegal, and will
      therefore attribute to long continued use and enjoyment, by the public,
      of a right of way or other privilege in or over that lands of another, to
      a legal rather than an illegal origin; and will ascribe long possession

                                    Page 29 of 47
       which cannot otherwise be accounted for, to a legal title: upon a
       reasonable principle and very forcible presumption, that the
       acquiescence in such enjoyment, for a long period, by those whose
       interest it was to interrupt it, arose from the knowledge and
       consciousness on their part that the enjoyment was rightful, and could
       not be disturbed; and also on consideration of the hardship which
       would accrue to parties, if after long possession, and when time had
       robbed them of the means of proof, their titles were to be subjected to
       a rigorous examination.”

Id. at 435. Although Justice Grier’s opinion in Boston v. Lecraw dealt with a matter

involving real property, the concept is the same here: absent evidence that the

person is engaged in illegal activity, the law does not presume that the person’s

acts are illegal.

       Further, only the Supreme Court of the United States may overrule one of its

precedents, and the Supreme Court has not overruled its holding in Boston v.

Lecraw. In Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535

(1983), the Supreme Court ruled, “...only this Court may overrule one of its

precedents.” The issue in Thurston Motor Lines was that the United States Court of

Appeals for the 9th Circuit was unclear whether the holding in a prior Supreme

Court case is “...still good law.” Id. Answering in the positive, the Supreme Court

held that until it overrules one of its precedents, any of its prior holdings “…is the

law.” Id.

       Therefore, the holding in Boston v. Lecraw has not been overruled by the

Supreme Court, and Appellant asks this Court of Criminal Appeals to consider that


                                    Page 30 of 47
Appellant had the right to sleep in his vehicle on a cold January night while parked

on private property. As the following analysis will show, there was no evidence

that would have led any officer to believe that Appellant was engaged in criminal

activity.


            iv. The opinion of the Court of Appeals is correct because it
                considered all the evidence presented against Appellant in the
                light most favorable to the verdict. Further, for purposes of the
                DWI statutes, the test for “operating” a vehicle should be that
                approximately at the same time the person was intoxicated, the
                person moved or attempted to move the vehicle in a public place.
       The opinion of the Court of Appeals is correct because it considered all the

evidence presented against Appellant in the light most favorable to the verdict, and

the Court found that the evidence was legally insufficient to prove that Appellant

committed Driving While Intoxicated under Texas Penal Code 49.04. Appellant

first points out that when asked whether Appellant was parked in a “public place,”

the trooper answered, “[N]ot in that driveway....[T]hat was private property.”

(RR2, 7).     A portion of the vehicle remained on a shoulder adjacent to the

roadway, but no part of the vehicle was on the roadway. Murray, Id. at 928. Thus,

for this reason alone, Appellant could not have committed Driving While

Intoxicated because he did not operate a vehicle in a public place.

       But even if Appellant was snoozing in his vehicle while pulled over on the

side of a public road, the State failed to prove beyond reasonable doubt that


                                    Page 31 of 47
Appellant was “intoxicated while operating a motor vehicle in a public place.”

Murray, Id. at 928; Tex. Pen. Code § 49.04(a) (2011). The issues in this case are

whether there is evidence proving beyond a reasonable doubt that: (1) Appellant

was “operating” a motor vehicle, (2) in a “public place.” The Court of Appeals

found that the State failed to prove both of these prongs of § 49.04(a).

       In addition to failing to prove that Appellant was parked in a “public place,”

the State failed to prove beyond a reasonable doubt that Appellant was “operating”

a motor vehicle. This Court has held that a person “operates” a vehicle when the

totality of the circumstances demonstrate that he “took action to affect the

functioning of his vehicle in a manner that would enable the vehicle’s use.”

Murray, Id. at 928; citing Kirsch v. State, 357 S.W.3d 645, 650-651 (Tex. Crim.

App. 2012) and Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995).

The circumstances must illustrate that the “defendant exerted personal effort upon

his vehicle for its intended purpose.” Murray, Id. at 928; Denton, 911 S.W.2d at

389.    Stated in a more simple manner for purposes of the DWI statutes, the

evidence and circumstances must show that approximately at the same time the

person is intoxicated, the person must move or attempt to move the vehicle in a

public place.

       In Kirsch, the defendant argued before this Court that the court of appeals

erred by affirming the trial court’s charge to the jury, which included a definition


                                    Page 32 of 47
of the statutorily undefined term “operate” as it is used in Texas Penal Code §

49.04. Kirsch, 357 S.W.3d at 647. Because whether the defendant was operating

his motorcycle was a question of fact to be resolved by the jury, this Court

concluded that the trial court erred by defining “operate,” so this Court reversed

the judgment of the court of appeals. Id. at 652. Kirsch does not resolve the

question of whether a person who is passed out behind the wheel of a running

vehicle while parked ‘operating’ the vehicle for purposes of DWI. Kirsch merely

leaves the task of defining “operating” or “operate” in the hands of the trier of fact,

and the Court of Appeals in the case before this Court found that the evidence was

legally insufficient to show that Appellant was “operating” his vehicle merely

because the engine was running while he was asleep inside the vehicle while

parked on private property. Still, Kirsch leaves unanswered what it means to

“operate” a vehicle.

      Nor does Denton resolve the issues before this Court. Denton was not an

appeal of a DWI case, but rather involved a defendant who was convicted for

unauthorized use of a motor vehicle because he broke into a vehicle for the

purpose of stealing it, only to find that he could not cause the vehicle to move.

Denton, 911 S.W.2d at 388. This Court rejected the defendant’s contention that he

did not “operate” the vehicle because it “was never actually moved from a

stationary position.” Id. at 390.     Rather, this Court apparently concluded that


                                     Page 33 of 47
because the defendant attempted to cause the vehicle to move at about the same

time he was committing the offense, he was in fact “operating” the vehicle.

      This reasoning appears to be based upon the reasoning of the Dallas Court of

Appeals in Barton v. State, 882 S.W.2d 456 (Tex. App. Dallas 1994, no pet.). In

Barton, with one foot on the brake and the other foot on the clutch, the defendant

was found asleep in his vehicle by a police officer. Id. at 457. The engine of the

vehicle was idling and the transmission was in neutral. Id. The vehicle was

stopped partially in an intersection controlled by a flashing yellow light. Id. When

the officer opened the door, turned off the ignition, and yelled at the defendant, the

defendant awoke, and in an attempt to drive away, engaged the clutch, put the gear

shift into first and let out the clutch. Id. When the defendant realized that the

engine was not running, he attempted to start the vehicle. Id.         The evidence

showed that the defendant was intoxicated at the time he attempted to move the

vehicle. Id.

      The Dallas Court of Appeals rejected the contention that in order to

“operate” a vehicle within the meaning of § 49.04, the driver’s “personal effort

must cause the automobile to either move or not move.” Id. at 459. Instead, the

court examines “the totality of the circumstances to determine if [the defendant]

exerted personal effort upon his vehicle for its intended purpose.” Id. In Barton,

the totality of the circumstances showed that the defendant “took action to affect


                                    Page 34 of 47
the functioning of his vehicle in a manner that would enable the vehicle’s use.” Id.

Thus, the facts show that because the defendant was intoxicated at approximately

the same time he moved or attempted to move the vehicle in a public place, the

Dallas Court of Appeals concluded that he was “operating” the vehicle.

      In Denton, this Court also cites Reddie v. State, 736 S.W.2d 923, 925 (Tex.

App. San Antonio 1987, pet. ref.). Reddie further supports Appellant’s argument

that in order to “operate” a vehicle for purposes of the DWI statutes, approximately

at the same time the person is intoxicated, the person must move or attempt to

move the vehicle in a public place. In Reddie, several witnesses stated that they

saw the defendant slumped over the steering wheel of a vehicle. Id. at 924. The

motor was idling. Id. The vehicle was parked in the middle of the road leading into

a new residential subdivision outside city limits. Id. No one knew how long the car

had been parked in the road. Id. Nor did anybody know how long appellant had

been sitting in the vehicle or how long he may have been intoxicated. Id.

      The Reddie court reversed the defendant’s conviction and entered a

judgment of acquittal.   Id. at 927.     The reasons were because: (1) there was no

evidence showing how or when the defendant arrived at the scene; (2) there was no

evidence that he even drove to the scene (or whether some other person drove him

there); (3) there was no evidence showing whether the defendant was intoxicated at

the time he arrived at the scene or became intoxicated later; and (4) the gear of the


                                       Page 35 of 47
vehicle was in “park.” Id. at 925. The facts of Reddie closely resemble the facts

of the case before this Court because in the case before this Court, (1) there were

no containers containing alcoholic substances found around Appellant’s vehicle;

(2) there was no evidence showing how long Appellant was inside the vehicle; (3)

there was no evidence showing how long the vehicle was parked at its location; (4)

there was no evidence even showing whether Appellant was the one who drove the

vehicle to its location; (5) the transmission of the vehicle was not engaged; (6)

even the trooper who first encountered and awoke Appellant acknowledged that

Appellant was not operating the vehicle in his presence; and (7) the same trooper

admitted that a sleeping person is not “operating” a vehicle. Murray, Id. at 929.

Therefore, like the facts in Redding, the facts of Appellant’s case show that

approximately at the same time Appellant was intoxicated, Appellant did not move

or attempt to move the vehicle in a public place.


         v. A review of the rulings from the courts of some other states show
            that they also generally require that in order to “operate” a
            vehicle for purposes of the DWI statutes, approximately at the
            same time the person is intoxicated, the person must move or
            attempt to move the vehicle in a public place.
      Ruling of the courts of some other states show that they also generally

require that in order to “operate” a vehicle for purposes of the DWI statutes,

approximately at the same time the person is intoxicated, the person must move or

attempt to move the vehicle in a public place. For instance, in Atkinson v. State,

                                    Page 36 of 47
627 A.2d 1019 (Md. 1993), the Maryland Court of Appeals held that a person is in

actual physical control of a vehicle if the person is presently exercising or is

imminently likely to exercise restraining or directing influence over a motor

vehicle while in an intoxicated condition; but if the person is totally passive, has

not in any way attempted to actively control the vehicle, and there is no reason to

believe that the person is imminently going to control the vehicle in his or her

condition, criminal sanctions do not apply. (emphasis added).

      In Atkinson, the defendant was found by an officer slumped over in the

driver’s seat inside a vehicle parked on the shoulder of a highway. Id. at 1021.

The keys were in the ignition, and the engine was turned off. Id.          The officer

woke the defendant. Id. The officer “detected a strong odor of an alcoholic

beverage coming from the vehicle.” Id. The defendant was arrested, and later

convicted of driving while under the influence under Maryland law that prohibits

driving while under the influence of alcohol. See Md. Transportation Code § 21-

902 (1992). The defendant argued that he was not guilty because he did not “drive,

operate, [or] move” his vehicle while under the influence. Atkinson, Id. at 1021.

      Although the Maryland Court of Appeals discussed the issue of being in

“actual physical control” of a vehicle as a prerequisite of the statute, more pertinent

to Appellant’s case is that the Maryland Court of Appeals noted that it did not

believe that the “legislature meant to forbid those intoxicated individuals who


                                     Page 37 of 47
emerge from a tavern at closing time on a cold winter night from merely entering

their vehicles to seek shelter while they sleep off the effects of alcohol.” Id. at

1025-1026. Further, “...rather than assume that a hazard exists based solely upon

the defendant’s presence in the vehicle, we believe courts must assess potential

danger based upon the circumstances of each case.” Id. at 1026.

      And although the Maryland Court of Appeals reversed the conviction, it also

noted that “had there been evidence to establish that Atkinson had driven prior to

his apprehension, he might properly have been convicted...not because of what he

was doing when the officer arrived on the scene, but because of what the factfinder

could have inferred he had done previously, i.e., actually drive, operate, or move

his vehicle while intoxicated.” Id. at 1029. But like Appellant in the case before

this Court, as to the defendant in Atkinson, (1) there were no containers containing

alcoholic substances found around the vehicle; (2) there was no evidence showing

how long the defendant was inside the vehicle; (3) there was no evidence showing

how long the vehicle was parked at its location; (4) the engine was turned off (the

engine in Appellant’s case was running but not in gear); and (5) there was no

evidence even showing whether defendant was the one who drove the vehicle to its

location. Thus, there was no evidence showing that approximately at the same

time (Atkinson) was intoxicated, (Atkinson) moved or attempted to move the

vehicle in a public place.


                                    Page 38 of 47
      In State v. Daly, 313 A.2d 194 (N.J. 1973), the defendant was found reclined

in the driver’s seat of his vehicle, which was parked in the parking lot of a tavern.

Id. at 195. The motor of the vehicle was running. Id. The defendant was not asleep

at the time. Id. The defendant told the officer he was sitting in the car to keep

warm and intended to drive home in a “little while.” Id. The officer ordered the

defendant to step out of the vehicle. Id. The officer immediately noticed that the

defendant was intoxicated. Id. When the officer told the defendant that due to his

condition, he could not drive his vehicle, the defendant “uttered a vulgarism and

stated, ‘I will drive my car when I feel like it.’” Id.

      The New Jersey Supreme Court affirmed the reversal of the defendant’s

conviction, finding that there was no evidence that the defendant actually intended

to move his vehicle until he sobered up. Id. Further, there was no evidence

showing exactly how long the defendant had been in the vehicle; and in fact, the

evidence showed that the defendant had been in the vehicle for at least one hour

and twenty minutes without driving. Id.

      The New Jersey Supreme Court also rejected the argument that “...intent to

move the vehicle should not be a required element of the offense of operating a

motor vehicle while intoxicated.”          Id. The State’s position was that “an

intoxicated person who enters a motor vehicle and starts the engine is a threat to

himself and to the public because of the hazard that either he may try to drive the


                                      Page 39 of 47
vehicle, or accidentally cause it to be moved.”      Id. at 195-196.    The court

disagreed, holding that because the statutory sanction is against “operating” a

motor vehicle while intoxicated, that “...in addition to starting the engine,

evidence of intent to drive or move the vehicle at the time must appear.” Id. at

196 (emphasis added). Thus, there was no evidence showing that approximately at

the same time (Daly) was intoxicated, (Daly) moved or attempted to move the

vehicle in a public place.

      Finally, in State v. Zavala, 666 P.2d 456 (Ariz. 1983), the defendant was

found by the police unconscious, hanging partially from the window on the

driver’s side of the vehicle. Id. at 457. The police noticed a strong odor of an

alcoholic beverage coming from the defendant and inside the vehicle. Id. The key

to the ignition was in the “off” position, and the vehicle’s motor was not running.

Id. The relevant issue on appeal was whether the defendant was driving under the

influence. In reversing the defendants conviction for driving under the influence,

the Supreme Court of Arizona held that “...driving entails some motion of the

vehicle in which the offender is apprehended.” Id. at 458. Therefore, like in

Appellant’s case, in Zavala, there was no evidence showing that approximately at

the same time (Zavala) was intoxicated, (Zavala) moved or attempted to move the

vehicle in a public place.




                                   Page 40 of 47
         vi. The Court of Appeals did not err when it found that the evidence
             was legally insufficient to prove that Appellant committed Driving
             While Intoxicated.
      As Appellant argues above, (1) there were no containers containing

alcoholic substances found around Appellant’s vehicle; (2) there was no evidence

showing how long Appellant was inside the vehicle; (3) there was no evidence

showing how long the vehicle was parked at its location; (4) there was no evidence

even showing whether Appellant was the one who drove the vehicle to its location;

(5) the transmission of the vehicle was not engaged; (6) even the trooper who first

encountered and awoke Appellant acknowledged that Appellant was not operating

the vehicle in his presence; and (7) the same trooper admitted that a sleeping

person is not “operating” a vehicle. Murray, Id. at 929.

      Thus, there was no evidence showing that approximately at the same time

(Appellant) was intoxicated, (Appellant) moved or attempted to move the vehicle in

a public place. The Court of Appeals further contrasted the facts of Appellant’s

case from dispositive facts in other cases in which convictions were sustained,

including the fact that there was no evidence in Appellant’s case of the vehicle’s

transmission being engaged [as opposed to in Dornbusch v. State, 262 S.W.3d 432

(Tex. App. Fort Worth 2008, no pet.)]; no admission by Appellant that he had been

driving the vehicle [as opposed to in Reynolds v. State, 744 S.W.2d 156 (Tex. App.

Amarillo 1987, pet. ref.)]; Appellant’s vehicle was not running while in the


                                    Page 41 of 47
roadway [as opposed to in Pope v. State, 802 S.W.2d 418 (Tex. App. Austin 1991,

no pet.)]; Appellant’s vehicle was not in a moving lane of traffic [as opposed to in

Hearne v. State, 80 S.W.3d 677 (Tex. App. Houston [1st Dist.] 2002, no pet.)]; and

there was no evidence that Appellant attempted to manipulate the vehicle’s

controls (steering wheel, gear lever, brakes, or accelerator) [as opposed to in

Barton or Hernandez v. State, 773 S.W.2d 761 (Tex. App. San Antonio 1989, no

pet.)]. As the Court of Appeals further concluded, each of the cases it listed had

“more indicia” allowing a trier of fact to reasonably infer that the defendant “took

action to affect the functioning of his vehicle in a manner that would enable the

vehicle’s use or that the defendant exerted personal effort upon his vehicle for its

intended purpose.” Id. at 929.

      As a result, there was no direct or circumstantial evidence that would allow a

reasonable trier of fact to infer that in violation of Texas Penal Code § 49.04(a),

Appellant operated his vehicle while intoxicated because approximately at the time

Appellant was intoxicated, Appellant did not move or attempt to move the vehicle

in a public place. And, no rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Laster, 275 S.W.3d at 517,

Jackson, 443 U.S. at 316-319; Brooks, 323 S.W.3d at 912; Prible, 175 S.W.3d at

729-730; Wise, 364 S.W.3d at 903; Carrizales, 414 S.W.3d at 742. Further, after

giving “proper deference” (and not total deference) to the trier of fact, the Court of


                                    Page 42 of 47
Appeals correctly concluded that the State failed to affirmatively prove each of the

essential elements of Driving While Intoxicated.        Isassi, 330 S.W.3d at 638;

Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 859-860.


         vii.      This Court should adopt the proposed definition of
             “operating” because Texas public policy should favor allowing
             intoxicated persons to “sleep it off” in their vehicles if they are
             unable to safely seek shelter without driving, which clearly is the
             “lesser of three evils” when compared to: (1) attempting to drive
             while intoxicated; or (2) exposing themselves to the dangers of the
             elements or being in the open without the shelter of their vehicles.
      As a preface to this argument, undersigned counsel agrees and understands

that: (1) driving while intoxicated is dangerous, (2) driving while intoxicated

causes significant safety concerns, and (3) many people are injured or killed as a

result of driving while intoxicated. According to the National Highway Traffic

Safety Administration (“NHTSA”), during 2012, out of the 33,561 people who

died in motor vehicle traffic accidents in the United States, alcohol-impaired-

driving fatalities increased accounted for 31 percent of the fatalities.        See

NHTSA’s       2012    Motor      Vehicle     Crashes:     Overview,    http://www-

nrd.nhtsa.dot.gov/Pubs/811856.pdf, last accessed on February 3, 2015. In Texas

during the same year (2012), out of 3,398 traffic fatalities, 1,296, or 38 percent

involved impaired driving. Id. Thus, the seriousness of the problem of impaired

driving is not lost on undersigned counsel, and undersigned counsel agrees and



                                    Page 43 of 47
understands that the best public policy is that persons should not drive at all

while intoxicated.

      However, Texas public policy should also favor allowing intoxicated

persons to “sleep it off” in their vehicles if they are unable to safely seek shelter

without driving, which clearly is the “lesser of three evils” when compared to: (1)

attempting to drive while intoxicated, or (2) exposing themselves to the dangers of

the elements or being in the open without the shelter of their vehicles. Logically, if

an impaired person realizes that he or she should not be driving, it is best for all

concerned that the impaired person immediately stop driving and seek shelter until

the effects of the intoxicants wear off.     But if there is no shelter immediately

available, upon stopping the vehicle, the impaired person may either: (1) exit the

vehicle and risk exposure to the elements or risk being accosted by bandits; or (2)

remain in the relative safety of the vehicle, and stay warm (during the winter) until

the effects of the intoxicants wear off. No rational person (or rational impaired

person) would rather exit the vehicle and risk freezing to death or risk coming

upon bandits merely to avoid a DWI arrest. Nor should the rational person (or

rational impaired person) do so.

      But if this Court where to adopt Appellant’s proposed definition of

“operating,” the impaired person would not have to choose between the equally

unappealing choices of: (1) risking arrest for DWI merely because the person is


                                    Page 44 of 47
“sleeping it off” in a vehicle; or (2) risking arrest for DWI and putting his or her

life and the lives of those on the road in danger by attempting to drive home or to

nearby shelter. Obviously if the impaired person was not impaired to begin with,

the person would not have to choose between these alternatives. This conclusion is

understand and obvious. However, this Court is well-aware of the realities of

DWI, as persons from all walks of life have made the crucial error of driving while

impaired. And, public policy supports the conclusion that allowing intoxicated

persons to “sleep it off” in their vehicles if they are unable to safely seek shelter

without driving is the “lesser of three evils” compared to: (1) attempting to drive

while intoxicated; or (2) risking the elements or worse without the shelter of their

vehicles.


            viii.   Conclusion
      The State’s question for review presumes that a person who is passed out

behind the wheel of a running vehicle while parked is “operating” the vehicle. This

question presumes that such a person is actually operating the vehicle, but this

presumption does not consider that in order to “operate” a vehicle for the purpose

of the DWI statutes, the precedence and the realities of DWI require that

approximately at the same time the person was intoxicated, the person move or

attempt to move the vehicle in a public place. As a result, Appellant asks that this

Court affirm the judgment of the Court of Appeals.

                                    Page 45 of 47
XI. Conclusion and Prayer

      For the reasons stated in this Brief, Appellant respectfully prays that this

Court affirm the opinion and judgment of the Seventh Court of Appeals, which

reversed the Judgment of Conviction by Jury and sentence imposed on Appellant,

and rendered a judgment of acquittal.

                                        Respectfully submitted,

                                        Michael Mowla
                                        445 E. FM 1382 #3-718
                                        Cedar Hill, Texas 75104
                                        Phone: 972-795-2401
                                        Fax: 972-692-6636
                                        michael@mowlalaw.com
                                        Texas Bar No. 24048680
                                        Attorney for Appellant




                                        /s/ Michael Mowla
                                        By: Michael Mowla

XII. Certificate of Service

      This certifies that on February 4, 2015, a true and correct copy of this
document was served on David Holmes, District Attorney, Hill County, by email
to dholmes@co.hill.tx.us, on Lisa McMinn, the State Prosecuting Attorney, by
email to Lisa.McMinn@spa.texas.gov and information@spa.texas.gov, and John
Messinger, john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015)
and Tex. Rule App. Proc. 68.11 (2015)




                                        /s/ Michael Mowla
                                        By: Michael Mowla
                                   Page 46 of 47
XIII. Certificate of Compliance with Tex. Rule App. Proc. 9.4

      This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 15,000 words.
Using the word-count feature of Microsoft Word, the undersigned certifies that this
document contains 7,836 words in the document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix. This document also
complies with the typeface requirements because it has been prepared in a
proportionally-spaced typeface using 14-point font. See Tex. Rule App. Proc. 9.4
(2015).



                                       /s/ Michael Mowla
                                       By: Michael Mowla




                                    Page 47 of 47
APPENDIX 1
|   | Caution
As of: December 31, 2014 8:52 AM EST

                                           Murray v. State
                        Court of Appeals of Texas, Seventh District, Amarillo
                                        June 26, 2014, Decided
                                         No. 07-13-00356-CR

Reporter
440 S.W.3d 927; 2014 Tex. App. LEXIS 7023; 2014 WL 2916878

CHAD WILLIAM MURRAY, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Notice: PUBLISH.

Subsequent History: Rehearing overruled by Murray v. State, 2014 Tex. App. LEXIS 8881 (Tex. App.
Amarillo, Aug. 12, 2014)
Petition for discretionary review granted by Murray, 2014 Tex. Crim. App. LEXIS 1824 (Tex. Crim.
App., Nov. 19, 2014)

Prior History: [**1] On Appeal from the 66th District Court, Hill County, Texas. Trial Court No.
M0187-11, Honorable F. B. (Bob) McGregor Jr., Presiding.

Core Terms

pet, operation of a vehicle, intoxicated, substances, vehicle’s, alcohol, roadway, circumstantial
evidence, fireworks, asleep, infer, driving while intoxicated, reversing judgment, judgment rendered,
intended purpose, private driveway, reasonable doubt, direct evidence, personal effort, steering wheel,
fact finder, circumstances, transmission, functioning, unmentioned, Appeals, exerted, locale, parked,
truck

Case Summary

Overview

HOLDINGS: [1]-No direct or circumstantial evidence appeared of record enabling a reasonable
factfinder to infer that defendant operated his vehicle while intoxicated, in violation of Tex. Penal Code
Ann. § 49.04(a) (Supp. 2013), because he was simply found asleep in a running truck while parked off
the roadway and mainly in a private driveway; while the vehicle’s motor was running, its transmission
was not engaged, and no signs of containers holding alcoholic substances were found around the
vehicle.

Outcome

Judgment reversed; judgment of acquittal rendered.
                                     440 S.W.3d 927, *927; 2014 Tex. App. LEXIS 7023, **1



LexisNexis® Headnotes

     Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence
     Evidence > Admissibility > Circumstantial & Direct Evidence

HN1 A legal sufficiency review requires an appellate court to view the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Direct evidence is not necessary for circumstantial
evidence can be as probative as direct evidence in establishing the guilt of the actor. Indeed,
circumstantial evidence alone may be sufficient.

     Criminal Law & Procedure > ... > Vehicular Crimes > Driving Under the Influence > Elements
     Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution
     Evidence > Burdens of Proof > Proof Beyond Reasonable Doubt

HN2 To convict a defendant of driving while intoxicated, the State is obligated to show, beyond
reasonable doubt, that the defendant was intoxicated while operating a motor vehicle in a public place.
Tex. Penal Code Ann. § 49.04(a) (Supp. 2013). One is intoxicated when he lacks the normal use of his
mental or physical faculties by reason of the introduction of alcohol, among other substances, into his
body or when having a blood alcohol concentration of 0.08 or more. Tex. Penal Code Ann. § 49.01(2).
And, though statute does not define the term ″operate,″ the Texas Court of Criminal Appeals holds that
a person operates a vehicle when the totality of the circumstances demonstrate that he took action to
affect the functioning of his vehicle in a manner that would enable the vehicle’s use. In other words,
the circumstances must illustrate that the defendant exerted personal effort upon his vehicle for its
intended purpose.

Judges: Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Opinion by: Brian Quinn

Opinion

    [*928] Chad William Murray appeals his conviction for driving while intoxicated. He raises four
issues, but we address only one for it is dispositive.1 That issue involves the sufficiency of the evidence
to support his conviction. We find the evidence legally insufficient, reverse the judgment, and render
judgment of acquittal.

The pertinent standard of review was most recently explained in Carrizales v. State, 414 S.W.3d 737
(Tex. Crim. App. 2013). HN1 It requires the court to view the evidence in the light most favorable to
the verdict and determine whether any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. Id. at 742. Direct evidence is not necessary for circumstantial
evidence can be as probative as direct evidence in establishing the guilt of the actor. Id. Indeed,
circumstantial evidence alone may be sufficient. Id.
1
     The State did not favor us with a brief addressing any issue raised by appellant.

                                                                Page 2 of 4
                                    440 S.W.3d 927, *928; 2014 Tex. App. LEXIS 7023, **1



As previously mentioned, the State convicted appellant [**2] of driving while intoxicated under
section 49.04 of the Texas Penal Code. Thus, HN2 it was obligated to have shown, beyond reasonable
doubt, that appellant was ″intoxicated while operating a motor vehicle in a public place.″ TEX. PENAL
CODE ANN. § 49.04(a) (West Supp. 2013).

One is intoxicated when he lacks the normal use of his mental or physical faculties by reason of the
introduction of alcohol, among other substances, into his body or when having a blood alcohol
concentration of 0.08 or more. Id. § 49.01(2). And, though statute does not define the term ″operate,″
our Court of Criminal Appeals has held that a person operates a vehicle when the totality of the
circumstances demonstrate that he ″took action to affect the functioning of his vehicle in a manner that
would enable the vehicle’s use.″ Kirsch v. State, 357 S.W.3d 645, 650-51 (Tex. Crim. App. 2012);
Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995), quoting Barton v. State, 882 S.W.2d 456
(Tex. App.—Dallas 1994, no pet.). In other words, the circumstances must illustrate that the ″defendant
exerted personal effort upon his vehicle for its intended purpose.″ Denton v. State, 911 S.W.2d at 389,
quoting Barton v. State, supra. [**3] Appellant contends that the State failed to prove he was operating
the vehicle as contemplated by the statute.

The record illustrates that Texas troopers found appellant alone, reclining, asleep in the seat of his
pickup in the cold early hours of a January morning. The vehicle was parked on a private drive near
a fireworks stand with its radio on. Though a portion of the vehicle remained on a shoulder adjacent
to the roadway, none was on the roadway. Furthermore, while its motor [*929] was running, its
transmission was not engaged; that is, it was in park. No signs of containers holding alcoholic
substances were found around the vehicle. How long appellant and his vehicle were at the locale went
unmentioned, as did the time at which he arrived there. Moreover, the trooper who first encountered
and then awoke appellant acknowledged that appellant was not operating the vehicle in his presence.
The same trooper also testified both that a sleeping person is not operating a vehicle and that he did
not know if appellant had consumed beer at the scene or elsewhere.

Whether appellant owned or was in some way affiliated with the fireworks stand also went
unmentioned. Whether he began ingesting alcoholic [**4] substances at a locale near the fireworks
stand went undeveloped, as did whether establishments existed nearby whereat intoxicating substances
could be acquired.

We do not have evidence of the vehicle’s transmission being engaged, as in Dornbusch v. State, 262
S.W.3d 432 (Tex. App.—Fort Worth 2008, no pet.).2 Nor did appellant here inform the officers that he
had been driving the car, as in Reynolds v. State, 744 S.W.2d 156 (Tex. App.—Amarillo 1987, pet.
ref’d). Nor was the vehicle running while actually on the roadway, as in Barton v. State, supra and
Pope v. State, 802 S.W.2d 418 (Tex. App.—Austin 1991, no pet.) and Hernandez v. State, 773 S.W.2d
761 (Tex. App.—San Antonio 1989, no pet.). Nor was the vehicle found running in a moving lane of
traffic, as in Hearne v. State, 80 S.W.3d 677 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Nor is there
evidence that appellant attempted to manipulate the vehicle’s controls, like the steering wheel, gear
lever, brakes, or accelerator, as in Barton v. State, supra, or Hernandez v. State, supra. Each of those
prosecutions may have involved someone finding someone awake or asleep behind a steering wheel
2
   Indeed, that the car was in gear was the determinative factor according to the justice who concurred in Dornbusch. Dornbusch v. State,
262 S.W.3d 432, 438-39 (Tex. App.—Fort Worth 2008, no pet.) (concurring).

                                                               Page 3 of 4
                           440 S.W.3d 927, *929; 2014 Tex. App. LEXIS 7023, **4



of an idling car. Yet, each had more indicia [**5] allowing a fact finder to reasonably infer that the
accused took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s
use or that the defendant exerted personal effort upon his vehicle for its intended purpose. Here,
however, appellant was simply found asleep in a running truck while parked off the roadway and
mainly in a private driveway. And, while one can infer that someone had to have driven the truck there,
we have no evidence as to when or whether the person was inebriated at the time.

Simply put, no direct or circumstantial evidence appears of record enabling a reasonable fact finder to
infer that appellant operated his vehicle while intoxicated. We reverse the judgment and render
judgment acquitting appellant of the offense.

Brian Quinn

Chief Justice

Publish.




                                                Page 4 of 4
