           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-0512-09



                            JULIAN KUCIEMBA, Appellant

                                              v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE FOURTEENTH COURT OF APPEALS
                         WASHINGTON COUNTY

              Meyers, J., filed a dissenting opinion.

                                DISSENTING OPINION

       The issue before the Court is whether the State must present direct evidence of a

temporal link between driving and intoxication when a defendant is charged with driving

while intoxicated. The majority concludes that the circumstantial evidence offered in this

case was sufficient to support Appellant’s conviction. I respectfully dissent.

       I agree with the court of appeals that there is “neither direct nor circumstantial

evidence to establish the necessary temporal link” between Appellant’s driving and his
                                                                        Kuciemba dissent–Page 2

intoxication. Kuciemba v. State, No. 14-08-00050-CR, 2009 Tex. App. LEXIS 1728

(Tex. App.–Houston [14th Dist.] March 10, 2009, pet. granted) (mem. op., not designated

for publication).

       Viewing the evidence in the light most favorable to the State, we consider whether

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

The following is the only evidence cited by the majority as being legally sufficient to

support Appellant’s conviction for driving while intoxicated:

       1.      Appellant’s intoxication at the scene of a traffic accident in which he
               was a driver.
       2.      The accident was a one-car collision with an inanimate object.
       3.      Appellant’s failure to brake.
       4.      Appellant’s presence behind the steering wheel, with bleeding
               lacerations, when the deputy arrived on the scene.
       5.      Appellant’s high blood-alcohol level from a sample taken at the
               scene of the accident.

What this evidence demonstrates is that Appellant did not operate his car in a safe manner

just prior to the accident and that he was intoxicated at the accident scene. But, as

correctly noted by the court of appeals, these facts do not establish directly or

circumstantially that Appellant was intoxicated at the time that he was driving. The State

did not offer evidence relating to the time of the collision or how much time elapsed

between the accident and the arrival of police.1 Nor did the State offer details pertaining


       1
         Had the responding officer testified, for example, that the engine was warm or that it was
still running, the jury could have extrapolated that Appellant was in fact intoxicated while he was
driving.
                                                                   Kuciemba dissent–Page 3

to what or when Appellant drank.

       After viewing the evidence in the light most favorable to the prosecution, I do not

see how any rational trier of fact could have found the essential elements of driving while

intoxicated beyond a reasonable doubt. The evidence presented in this case is legally

insufficient to show that Appellant was “intoxicated while operating a motor vehicle in a

public place.” T EX. P ENAL C ODE A NN. § 49.04. Therefore, I would affirm the judgment

of the court of appeals.


                                                               Meyers, J.

Filed: May 26, 2010

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