                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-16-00127-CR


JOSE A. CASTILLO                                                  APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1416281D

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                       MEMORANDUM OPINION1

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      Appellant Jose A. Castillo appeals from his conviction for felony driving

while intoxicated (DWI) and three-year sentence. He argues that the trial court

erred by denying his motion for directed verdict based on the lack of evidence

that he operated a motor vehicle. Because the evidence was sufficient to show




      1
      See Tex. R. App. P. 47.4.
that Castillo operated a vehicle, we conclude as a matter of law that the trial court

did not err by denying his motion for directed verdict.

      David Mige, a tow-truck driver, was driving on Interstate 35 at 2:30 a.m. on

April 20, 2015. After Mige saw a car in front of him erratically swerve out of the

left lane into the right lane, Mige saw a silver Honda Civic sitting stationary in the

left lane of the highway, which had no shoulder at that point. Mige parked his

truck behind the car and turned on his beacon hazard lights in an attempt to

protect any occupants. Mige approached the driver, the sole occupant, who was

attempting to start the car. The driver, who smelled of alcohol, told Mige that he

had run out of gas and asked for help getting his car off the highway.2 Mige

called the police, but when officers arrived, the driver fled on foot. Based on

Mige’s description, the officers eventually found the driver, later identified as

Castillo, in a nearby empty field under a tree approximately thirty minutes after

Castillo had fled. When he was found, Castillo had the keys to the silver Honda

Civic in his hand. The officers arrested Castillo and obtained a search warrant

for his blood, which revealed that his blood-alcohol concentration was 0.115.

During their inventory search of Castillo’s car, the officers found no alcohol or

alcohol containers.

      Castillo was indicted with felony DWI based on his two prior DWI

convictions. See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2) (West Supp.

      2
       On this section of the highway, it would be “very unusual” for a stalled car
positioned in a lane of traffic to go unreported for any length of time.


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2016). Castillo pleaded true to the two prior convictions and stipulated to the

results of his blood test. See Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005).

After the State rested its case-in-chief—during which the State called as

witnesses Mige, the responding officers, and an officer who unsuccessfully

attempted to administer field-sobriety tests—Castillo moved for a directed verdict

of acquittal, arguing that the State had failed to introduce any evidence that he

was “operating” the car. Tex. Penal Code Ann. § 49.04(a). The trial court denied

the motion. Castillo and the State then rested and closed the evidence, and the

jury found Castillo guilty of felony DWI as charged in the indictment.       After

hearing punishment evidence, the jury assessed Castillo’s punishment at three

years’ confinement.

      In his sole issue, Castillo argues that the trial court erred by denying his

motion for directed verdict in the absence of any evidence that he was operating

the car while intoxicated. He specifically asserts that no witness testified that

Castillo was “operating a motor vehicle while intoxicated, or even simply

operat[ing] a vehicle.” In making this argument, he focuses on the fact that his

car engine was off and the car was stationary when Mige approached him.

      As this is an attack on the sufficiency of the evidence, we look at all the

evidence in the light most favorable to the verdict to determine whether any

rational fact-finder could have found the essential elements of the crime beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016);


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McDuff v. State, 939 S.W.3d 607, 613 (Tex. Crim. App.), cert. denied, 522 U.S.

844 (1997). This standard applies in direct- and circumstantial-evidence cases

because circumstantial evidence is as probative as direct evidence in

establishing guilt. Jenkins, 493 S.W.3d at 599.

      There is no statutory definition of “operating” as used in section 49.04(a);

however, the court of criminal appeals has held that a person operates a vehicle

when “the totality of the circumstances . . . demonstrate[s] that the defendant

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

the vehicle’s use.”    Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App.

1995).   This definition allows a fact-finder to broadly interpret whether the

defendant was operating a motor vehicle under section 49.04(a). See Kirsch v.

State, 366 S.W.3d 864, 868 (Tex. App.—Texarkana 2012, no pet.). Accordingly,

“any action that is more than mere preparation toward operating the vehicle”

would qualify as “operating” that vehicle, even actions that fall short of actually

driving the vehicle.    Denton, 911 S.W.2d at 389, 390; see Smith v. State,

401 S.W.3d 915, 919–20 (Tex. App.—Texarkana 2013, pet. ref’d).

      It is true that no witness saw Castillo driving the car or testified that the

car’s engine was running. But Mige found Castillo stopped in a lane of traffic on

a highway, attempting to start the car. Although the engine would not turn over,

the car’s radio “would go on” when Castillo tried to start the car. Castillo admitted

to Mige that he had run out of gas and asked Mige to help him get the car off the

highway. Mige stated that Castillo was “in distress like . . . he was trying to get


                                         4
somewhere.” This evidence, viewed in the light most favorable to the verdict,

allowed a reasonable fact-finder to conclude that Castillo was operating the car.

See Marroquin v. State, No. 08-12-00316-CR, 2014 WL 1274136, at *2–3 (Tex.

App.—El Paso Mar. 28, 2014, pet. ref’d) (not designated for publication); Kirsch,

366 S.W.3d at 868. To the extent Castillo argues that there was no temporal

connection established between his operation of the car and his intoxication,

which he stipulated to, the circumstantial facts that no alcohol was found in

Castillo’s car, that Castillo was stalled in a lane of a public highway, and that

such stalled cars usually would be promptly reported allowed a reasonable fact-

finder to conclude that Castillo was intoxicated while operating the car. See

Kuciemba v. State, 310 S.W.3d 460, 462–63 (Tex. Crim. App. 2010); Kirsch,

366 S.W.3d at 868; Gilliland v. State, No. 06-11-00054-CR, 2011 WL 3862861,

at *2 (Tex. App.—Texarkana Sept. 2, 2011, no pet.) (mem. op., not designated

for publication).

      Accordingly, after viewing the evidence in the light most favorable to the

verdict, we hold that a rational trier of fact could have found that Castillo operated

his car while legally intoxicated and that the evidence, therefore, was sufficient to

support his conviction. See, e.g., Gunter v. State, 327 S.W.3d 797, 800–01 (Tex.

App.—Fort Worth 2010, no pet.). We overrule Castillo’s issue and affirm the trial

court’s judgment. See Tex. R. App. P. 43.2(a).




                                          5
                                          /s/ Lee Gabriel

                                          LEE GABRIEL
                                          JUSTICE

PANEL: GABRIEL, SUDDERTH, and KERR, JJ.

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

DELIVERED: March 30, 2017




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