                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-09-00315-CR


BILL GUNTER                                                              APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                                     OPINION
                                      ------------

      In four points that challenge the sufficiency of the evidence to convict him

and the trial court‘s alleged failure to give a limiting instruction in the guilt-phase

jury charge about an extraneous offense, appellant Bill Gunter appeals his

conviction for driving while intoxicated (DWI).1 We affirm.




      1
       See Tex. Penal Code Ann. § 49.04 (Vernon 2003). To enhance
appellant‘s punishment range, appellant‘s indictment alleged that he had three
prior DWI convictions. See id. § 49.09(b)(2) (Vernon Supp. 2010).
                                Background Facts

      In December 2008, Fort Worth Police Department Officer Joshua Caprio

received a call about a motorcycle accident that had occurred near a gas station

parking lot in Tarrant County. When Officer Caprio arrived at the scene, he saw

appellant, who was alone, smelled like alcohol, had bloodshot eyes, and was

staggering while trying to pick up the motorcycle. According to Officer Caprio,

appellant said that he had been at a bar called The Red Barn, that he had drunk

four beers, and that he was driving the motorcycle home before he hit a slick spot

and crashed. Officer Caprio gave appellant a horizontal-gaze-nystagmus test,

which appellant failed by showing the maximum amount of clues for intoxication.

Officer Caprio arrested appellant.

      At the jail, appellant told Fort Worth Police Department Officer Renee Frias

that he had been drinking and driving that day. Appellant treated some of his

bloody scrapes and breathed twice into an intoxilyzer machine, which registered

his alcohol concentration at more than twice the legal limit.

      A grand jury indicted appellant for DWI. At trial, appellant pled not guilty,

but the jury found him guilty and assessed his punishment at fifteen years‘

confinement. Appellant filed his notice of appeal.

                             Evidentiary Sufficiency

      In reviewing the sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution to

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

                                         2
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007).2 This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075

(2009). Thus, when performing a sufficiency review, we may not re-evaluate the

weight and credibility of the evidence and substitute our judgment for that of the

factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert.

denied, 529 U.S. 1131 (2000). We must presume that the factfinder resolved

any conflicting inferences in favor of the prosecution and defer to that resolution.

Clayton, 235 S.W.3d at 778.



      2
        After the briefing and submission of this case, the court of criminal
appeals held that there is ―no meaningful distinction between the . . . legal-
sufficiency standard and the . . . factual-sufficiency standard, and these two
standards have become indistinguishable.‖ Brooks v. State, PD-0210-09, 2010
WL 3894613, at *8 (Tex. Crim. App. Oct. 6, 2010). Thus, the Jackson standard
is the ―only standard that a reviewing court should apply in determining whether
the evidence is sufficient to support each element of a criminal offense that the
State is required to prove beyond a reasonable doubt. All other cases to the
contrary . . . are overruled.‖ Id. at *14. Accordingly, we apply the Jackson
standard of review to appellant‘s sufficiency complaints.

                                         3
      In his first two points, appellant contends that the evidence is insufficient to

show that his DWI offense occurred in Texas.3 Texas has jurisdiction over an

offense if the conduct comprising the offense occurs inside this state. Tex. Penal

Code Ann. § 1.04(a)(1) (Vernon 2003); Torres v. State, 141 S.W.3d 645, 654

(Tex. App.—El Paso 2004, pet. ref‘d); St. Julian v. State, 132 S.W.3d 512, 515

(Tex. App.—Houston [1st Dist.] 2004, pet. ref‘d) (―The State may prosecute only

those crimes that occur within or directly affect the state.‖). ―[J]urisdiction, like

any other requisite of an offense, can be proven circumstantially.‖ Vaughn v.

State, 607 S.W.2d 914, 920 (Tex. Crim. App. [Panel Op.] 1980); see Walker v.

State, 195 S.W.3d 250, 257–58 (Tex. App.—San Antonio 2006, no pet.)

(―Walker‘s house, where the offense occurred, is . . . in Guadalupe County; . . .

and Payne is the constable for Precinct 3 in Guadalupe County and as such is a

certified peace officer for the State of Texas. This evidence is sufficient to meet

the State‘s burden.‖); James v. State, 89 S.W.3d 86, 89 (Tex. App.—Corpus

Christi 2002, no pet.) (holding that evidence that the offense occurred in the city

of Beaumont and Jefferson County was sufficient to circumstantially establish

jurisdiction in Texas); Hewitt v. State, 734 S.W.2d 745, 747 (Tex. App.—Fort

Worth 1987, pet. ref‘d) (holding similarly).




      3
       The trial court‘s charge instructed the jury that to convict appellant, it had
to find that he operated a motor vehicle while intoxicated in ―Tarrant County,
Texas.‖

                                          4
      Officer Caprio testified that he works for the Fort Worth Police Department,

that he responded to an accident in Tarrant County, and that he took appellant to

the Tarrant County jail. Officer Frias affirmed that he is a certified peace officer

in Texas and that he works for the Fort Worth Police Department. The jury also

heard testimony from a senior forensic chemist who works for the Tarrant County

Medical Examiner‘s Office. One of the witnesses that appellant called said that

he had lived in Tarrant County since 1993. Another witness called by appellant

said that he lived on ―McCullum Street in Fort Worth.‖ Finally, the record does

not contain any evidence indicating that the offense occurred outside of Texas.

      Viewing the evidence in the light most favorable to the verdict, we hold that

these references and the other references in the record to Fort Worth and

Tarrant County comprise sufficient circumstantial evidence for the jury to

implicitly find that appellant‘s DWI offense occurred in Texas. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. Thus, we overrule

appellant‘s first two points.

      In appellant‘s third point, he contends that the evidence is insufficient to

prove that he operated a motor vehicle. A person commits DWI when the person

―is intoxicated while operating a motor vehicle in a public place.‖ Tex. Penal

Code Ann. § 49.04(a). The penal code does not define ―operating.‖ See id.;

Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995). ―However, the

court of criminal appeals has held that, to find operation of a motor vehicle, ‗the

totality of the circumstances must demonstrate that the defendant took action to

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affect the functioning of his vehicle that would enable the vehicle‘s use.‘‖

Dornbusch v. State, 262 S.W.3d 432, 436 (Tex. App.—Fort Worth 2008, no pet.)

(quoting Denton, 911 S.W.2d at 390). Thus, ―any action that is more than mere

preparation toward operating the vehicle‖ qualifies as ―operating‖ for DWI. Id. at

436.

       Appellant presented evidence that, if believed by the jury, would show that

he did not operate the motorcycle. Specifically, appellant called three witnesses

who collectively testified that appellant did not drive the motorcycle away from

The Red Barn on the day in question but instead got into Mitchell McClendon‘s

blue truck before McClendon drove away from the bar while someone else drove

appellant‘s motorcycle in front of the truck and eventually crashed it. Appellant‘s

witnesses said that after the motorcycle crashed, appellant stayed with it while

McClendon went to get a motorcycle ramp. According to McClendon, while he

was getting the ramp, the police arrived and saw appellant near the motorcycle.

       The three witnesses‘ testimony seems to be supported by the testimony of

Melissa Melon, an employee of a convenience store located near where the

police arrested appellant, and by Donna Ford, an employee of The Red Barn.

Melon said that while she was using the store‘s register on the day in question,

she noticed a motorcycle in a street and saw three men trying to take it to a

parking lot. She said that after helping some customers, she looked out of the

store again and saw one of the men by himself. Melon admitted that she did not

know who had been driving the motorcycle.

                                        6
      Ford said that she saw appellant call someone named ―Mitchell or

something to that effect‖ to pick him up from the bar and that appellant was so

drunk that he ―wouldn‘t have been able to get on that bike without falling over on

it.‖ She testified that there ―would have been laughter‖ if appellant would have

tried to get on the motorcycle.

      However, in contrast to the testimony given by the witnesses that appellant

called, the State provided testimony from two officers who said that appellant told

them that he had been driving the motorcycle home from the bar before he

crashed it. Officer Frias also said that appellant‘s arm was injured and looked

like it had a ―road rash,‖ which supports the State‘s theory that he crashed the

motorcycle.

      In our sufficiency review, we must defer to the jury‘s resolution of

conflicting evidence. Clayton, 235 S.W.3d at 778. Viewing the evidence in the

light most favorable to the verdict, we hold that a rational trier of fact could have

found that appellant operated a vehicle; the evidence is therefore sufficient to

support his conviction. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778. We overrule appellant‘s third point.

                         Extraneous Offense Instruction

      In his fourth point, appellant argues that the trial court erred by not giving a

limiting instruction in its guilt-phase jury charge about an extraneous offense.

He alleges that during a conversation that was recorded by a video taken from a

camera in a patrol car, one officer told another officer that appellant had an illegal

                                          7
knife.     Appellant contends that ―[e]ven absent an objection by Appellant‘s

counsel, the trial court should have included a section in the jury charge

instructing the jury that they could consider the evidence of the extraneous

offense only for a limited purpose, and then only if they found the evidence

beyond a reasonable doubt.‖

         However, the court of criminal appeals has held,

         [I]f a defendant does not request a limiting instruction . . . at the time
         that evidence is admitted, then the trial judge has no obligation to
         limit the use of that evidence later in the jury charge. This doctrine is
         a sensible one because otherwise a jury might sit through most of a
         trial under the mistaken belief that certain evidence is admissible for
         all purposes when, in fact, it is not. Once evidence has been
         admitted without a limiting instruction, it is part of the general
         evidence and may be used for all purposes. . . . Taking the cases
         together, then, a limiting instruction concerning the use of
         extraneous offense evidence should be requested, and given, in the
         guilt-stage jury charge only if the defendant requested a limiting
         instruction at the time the evidence was first admitted.

               ....

                . . . Because the trial judge had no duty to give any limiting
         instruction concerning the use of an extraneous offense in the guilt-
         phase jury charge, it naturally follows that he had no duty to instruct
         the jury on the burden of proof concerning an extraneous offense.

Delgado v. State, 235 S.W.3d 244, 251, 254 (Tex. Crim. App. 2007) (footnotes

and citations omitted).       Based on Delgado, we have held that a defendant

forfeited his complaint on appeal about a lack of a limiting instruction in a jury

charge when the defendant did not request the instruction at the time that the

evidence was admitted. Smith v. State, 316 S.W.3d 688, 700 (Tex. App.—Fort



                                             8
Worth 2010, pet. ref‘d); see Martin v. State, 176 S.W.3d 887, 899 (Tex. App.—

Fort Worth 2005, no pet.).

      Because the evidence that contains the ―illegal knife‖ comment—State‘s

Exhibit 2—was admitted at trial without a request for a limiting instruction by

appellant, we hold, under Delgado, that appellant has forfeited his complaint on

appeal about the lack of such an instruction in the guilt-phase jury charge.

See Delgado, 235 S.W.3d at 251, 254. We overrule appellant‘s fourth point.

                                 Conclusion

      Having overruled all of appellant‘s points, we affirm the trial court‘s

judgment.



                                                 TERRIE LIVINGSTON
                                                 CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

PUBLISH

DELIVERED: October 21, 2010




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