                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-13-00356-CR


                            CHAD WILLIAM MURRAY, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 66th District Court
                                      Hill County, Texas
            Trial Court No. M0187-11, Honorable F. B. (Bob) McGregor Jr., Presiding

                                              June 26, 2014

                                              OPINION
                    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      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).                    It requires the court to view the


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          The State did not favor us with a brief addressing any issue raised by appellant.
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.

         As previously mentioned, the State convicted appellant of driving while

intoxicated under section 49.04 of the Texas Penal Code. Thus, 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. Appellant contends that the State failed to prove he was operating the

vehicle as contemplated by the statute.



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       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 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 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

       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).

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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 of

an idling car. Yet, each had more indicia 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.




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