                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00008-CR



             MARISOL PRIEGO, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 124th District Court
                Gregg County, Texas
              Trial Court No. 41,399-B




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Burgess
                                             OPINION
           Marisol Priego appeals from a conviction of driving while intoxicated (DWI), third or

more, 1 and the resulting sentence of ten years’ incarceration. We modify the judgment to delete

the presumed future award of attorney fees and affirm the judgment, as modified.

I.         Background

           After an afternoon shopping trip to Walmart in Kilgore, Priego made the fateful decision

to visit a nearby liquor store, where she asked a “random customer” there to purchase whiskey

for her. The customer delivered two bottles of whiskey to Priego, who testified that she drove

from the liquor store to the parking lot of C W Ford Rentals, where a dumpster was located. 2

Priego planned to drink the whiskey in the parking lot and discard the empty bottles in the

dumpster. Priego testified that she hurriedly consumed the contents of one bottle of whiskey

while still in her truck, exited her truck, and deposited the empty bottle in the dumpster. After

having done so, Priego stated that she returned to her truck where she consumed more whiskey

from the second bottle until she lost consciousness.

           In the meantime, Brian Welch, manager of C W Ford Rentals, returned to his office at

approximately 4:15 to 4:20 p.m. after having run an errand. Although the parking lot at C W

Ford Rentals was empty when Welch left on his errand, Welch noticed Priego’s truck in the

parking lot with the engine running when he returned to the office. Welch walked by the truck

on his way into the office and noticed a lady seated in the driver’s seat with her “head slumped

1
    See TEX. PENAL CODE ANN. § 49.09(b) (West Supp. 2014).
2
 It is approximately a five-minute drive from Walmart to the parking lot of C W Ford Rentals. The liquor store
Priego visited is located directly in front of Walmart.

                                                       2
down.” After unloading some equipment from his truck, Welch noticed Priego’s vehicle was

still in the parking lot. He approached the truck and knocked on the passenger’s side window.

When Priego did not respond, Welch knocked several times on the driver’s side window. Priego

remained unresponsive. Concerned, Welch walked next door to the neighboring business to

determine if the truck might belong to somebody there. Although nobody at the neighboring

business knew anything about the truck, several employees were likewise concerned on hearing

Welch’s description of a lady who appeared to be unresponsive in the truck. One such employee

opened the driver’s side door of Priego’s truck, but was unsuccessful in her attempts to arouse

Priego. Welch observed that Priego was still wearing her seat belt, which appeared to be holding

her upright. Welch also noticed a small bottle of some kind of alcohol on the truck’s floorboard.

He never saw Priego actually drive the truck, which was parked straight in the parking lot.

        After an employee of the neighboring business called the police, a man who identified

himself as Priego’s husband, Jose Patino, arrived on the scene. Patino attempted to arouse

Priego, but he, too, was unsuccessful in this endeavor. Shortly thereafter, police officers and an

ambulance arrived on the scene.

        Priego was transported to the hospital for care and observation. On the request of Joseph

Harrison, a patrol officer with the Kilgore Police Department, a blood sample was taken from

Priego at 6:15 p.m., which revealed a blood-alcohol content of .478. 3 Several hours later, Priego

regained consciousness, and she was finally discharged from the hospital at approximately 12:00

a.m. Priego was later arrested for DWI.

3
 Priego was unable to respond to Harrison’s questions. Due to Priego’s highly intoxicated condition, field-sobriety
tests were not performed.
                                                        3
       On appeal, Priego contends the evidence is legally insufficient to support the conviction

of DWI.

II.    Standard of Review

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of DWI, third offense, beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v.

State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on

the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring).

We examine legal sufficiency under the direction of the Brooks opinion, while giving deference

to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). We therefore “may

not re-evaluate the weight and credibility of the . . . evidence and . . . substitute our judgment for

that of the fact-finder.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead,

we “determine whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the verdict.”

Hooper, 214 S.W.3d at 16–17. We must presume that the fact-finder resolved any conflicting

inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326.




                                                  4
        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id.

        Under Texas law, a person is guilty of DWI, third offense, if the person (1) having been

two times previously convicted of an offense related to the operation of a motor vehicle while

intoxicated (2) is intoxicated (3) while operating a motor vehicle (4) in a public place. See TEX.

PENAL CODE ANN. §§ 49.04, 49.09(b) (West Supp. 2014). The only element in dispute in this

case is whether Priego operated her truck while intoxicated. In short, Priego contends that she

did not consume any alcohol before she parked her truck in the parking lot of C W Ford Rentals

and that there is no direct or circumstantial evidence which would enable a reasonable fact-finder

to determine otherwise.

III.    Legally Sufficient Evidence Supports the Conviction

        The term “operating,” as utilized in the Penal Code, is not defined. See TEX. PENAL

CODE ANN. § 49.04(a); 4 see also Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012).

In assessing the sufficiency of the evidence to prove that a defendant was “operating” a vehicle

as contemplated by the statute, we look to the totality of the circumstances. Kirsch, 357 S.W.3d

at 651. Those circumstances must “‘demonstrate that the defendant took action to affect the

4
 “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” TEX.
PENAL CODE ANN. § 49.04(a).
                                                        5
functioning of his vehicle in a manner that would enable the vehicle’s use.’” Id. at 650–51

(quoting Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995)).

       “Under this standard, ‘operating’ a motor vehicle is interpreted very broadly.” Smith v.

State, 401 S.W.3d 915, 919 (Tex. App.—Texarkana 2013, pet. ref’d) (citing Dornbusch v. State,

262 S.W.3d 432, 436 (Tex. App.—Fort Worth 2008, no pet.)). “[W]hile driving does involve

operation, operation does not necessarily involve driving.” Denton v. State, 911 S.W.2d 388,

389 (Tex. Crim. App. 1995). “‘Because ‘operating a motor vehicle’ is defined so broadly, any

action that is more than mere preparation toward operating the vehicle would necessarily be an

‘action to affect the functioning of [a] vehicle in a manner that would enable the vehicle’s use.’’”

Smith, 401 S.W.3d at 919 (quoting Strong v. State, 87 S.W.3d 206, 216 (Tex. App.—Dallas

2002, pet. ref’d)). The action taken to affect the functioning of the vehicle “need not succeed in

causing the vehicle to function for the person to be operating it.” Strong v. State, 87 S.W.3d 206,

215 (Tex. App.—Dallas 2002, pet. ref’d); abrogated on other grounds by Pfeiffer v. State, 363

S.W.3d 594 (Tex. Crim. App. 2012). Accordingly, Texas courts have upheld DWI convictions

in cases where the intoxicated person was not actually driving the vehicle. See, e.g., Denton, 911

S.W.2d at 388–89 (defendant unable to accelerate because vehicle required time to “warm up”);

Dornbusch, 262 S.W.3d at 433 (“operation” occurred where driver found asleep, “hunched over

the steering wheel” in parking lot); see also Hearne v. State, 80 S.W.3d 677, 679 (Tex. App.—

Houston [1st Dist.] 2002, no pet.) (defendant asleep behind wheel of idling vehicle in roadway

and with gear selector in “park”); Barton v. State, 882 S.W.2d 456, 458 (Tex. App.—Dallas

1994, no pet.) (same, but vehicle in “neutral”).

                                                   6
       The facts of this case are similar to those in Hearne. As in this case, Hearne maintained

that the evidence was insufficient to support a DWI conviction because the State failed to prove

he operated his vehicle. Hearne, 80 S.W.3d at 679. Hearne was found by a patrol officer in the

early morning, sleeping in the driver’s seat of the vehicle with the vehicle’s engine running, but

with the gear selector in the “park” position. Id. The officer did not know how long the vehicle

had been parked and “did not see the appellant ‘exert any action, movement or anything to

attempt to control’ the truck.” Id. As in this case, there was no dispute about the fact that the

driver was legally intoxicated at the time. Id. The Houston court of appeals held that the jury

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

       Here, Priego was the only person in control of the motor vehicle where she was found

unconscious. There is no evidence in the record which tends to suggest anyone other than Priego

operated the vehicle. The jury heard evidence that Priego parked at C W Ford Rentals sometime

between 4:00 and 5:00 p.m., after an unknown person purchased two bottles of whiskey for her.

According to Welch, Priego’s truck was not in the C W Ford Rental’s parking lot at

approximately 4:00 p.m. when he left to pick up some equipment, but it was there approximately

fifteen to twenty minutes later when he returned to the office. At 5:10 p.m., Harrison received a

dispatch to C W Ford Rentals in response to a report of an unresponsive person in a vehicle.

Harrison arrived on the scene at approximately 5:12 p.m. A partially consumed bottle of

whiskey was located on the truck’s floorboard. Priego was unresponsive and smelled strongly of

alcohol. The truck engine was running, and Priego was wearing her seatbelt. Although there

was no direct evidence that Priego became intoxicated prior to or during the time she was driving

                                                 7
the truck, 5 the jury could reasonably infer that she was operating her truck while intoxicated. 6

See id. at 678–80; cf. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (requiring

temporal link between defendant’s operation of vehicle and his intoxication).

         Priego contends, however, that the facts here mirror those in Murray v. State, 440 S.W.3d

927 (Tex. App.—Amarillo 2014, pet. granted), where the Amarillo court found the evidence was

legally insufficient to support the judgment. In that case, Murray was found alone in his pickup,

reclined and sleeping, with the engine idling and the gear selector in the park position. Id. at

928–29. The truck was parked in a private drive, although a portion of the truck remained on a

shoulder adjacent to the roadway. Id. at 928. There were no alcoholic beverage containers

found in the truck. Id. at 929. There was no mention of how long the truck was parked or when

Murray arrived at the locale where he was discovered. Id. Likewise, there was no mention of

when and where Murray began to ingest alcoholic substances. Id.

         This case is factually distinct from Murray. Here, a partially consumed whiskey bottle

was found on the floorboard of Priego’s truck, there was evidence of the approximate length of

time the truck was parked in the locale where it was discovered, and there was evidence of the



5
Although it is apparent from the context of his testimony that Patino did not see Priego drive the truck while she
was intoxicated, he offered the following testimony on cross-examination:

                  Q.      And the truth was she was driving your truck that day, and she was doing it
         while she was drunk; and that’s the truth?

                 A.        I know that. Like I -- like I say, I come here to tell the truth, and that’s what
         happened.
6
 The location of Priego’s truck in a parking lot rather than in a moving lane of traffic, as in Hearne, does not alter
the outcome. See Dornbusch, 262 S.W.3d at 437 (“[P]arking lot at a public place is not legally different than a
roadway for purposes of a DWI arrest or conviction.”).
                                                          8
time period in which Priego ingested enough whiskey to render her unresponsive. And, although

the gear selector was in “park,” Priego was still wearing her seatbelt.

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

conclude that the evidence is legally sufficient to support the conviction.

IV.     Modification of Judgment

        The judgment here indicates that attorney fees were “TBD.” Priego postulates that the

letters TBD mean “to be determined.” While there is nothing in the judgment that directly

indicates the meaning of TBD, it is reasonable to assume those letters indicate that attorney fees

are to be determined at some later time. Priego asks that we modify the judgment to eliminate

this reference to attorney fees, as she was determined to be indigent by the trial court. Indeed,

the record indicates that Priego was indigent at trial and remains so on appeal. 7

        “A defendant who is determined by the court to be indigent is presumed to remain

indigent for the remainder of the proceedings in the case unless a material change in the

defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West

Supp. 2014); see Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013). An assessment of

attorney fees against an indigent defendant, to be determined in the future, is improper. “Code of

Criminal Procedure Article 26.05(g) requires a present determination of financial resources and

does not allow speculation about possible future resources.” Cates, 402 S.W.3d at 252.

        We modify the trial court’s judgment by deleting from it the letters “TBD” and

substituting an assessment of zero attorney fees.

7
 The State concedes that Priego was found indigent and that the trial court made no finding that her financial
circumstances had later changed.
                                                      9
V.    Conclusion

      We affirm the trial court’s judgment as modified.




                                           Ralph K. Burgess
                                           Justice

Date Submitted:     January 5, 2015
Date Decided:       February 13, 2015

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