                                    NO. 07-06-0240-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                   DECEMBER 11, 2006

                          ______________________________


                           THERESA A. SMITH, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

        NO. 2005-409498; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

                          _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Following a plea of not guilty Appellant, Theresa A. Smith, was convicted by a jury

of driving while intoxicated, a felony, and sentenced to four years confinement. By a single

point of error, she contends the trial court erred by failing to grant a directed verdict when
the evidence was legally and factually insufficient to establish she operated the vehicle.1

We affirm.


                                        Background


       Appellant was arrested after a witness observed her vehicle hit an obstruction in a

parking lot. The witness, Barry Malone, testified that on the night of August 19, 2004, he

and his wife were approaching an access road in South Lubbock when they noticed a

vehicle in an adjacent parking lot driving in their direction. As they continued to watch, the

vehicle drove into a group of trees and came to an abrupt stop. Malone immediately called

911 and drove back to the parking lot to check on the driver. As he approached, he

realized that the vehicle had struck a tree and saw that the driver’s side door was

obstructed by foliage. He peered into the passenger side window and observed Appellant

in the driver’s seat with her head resting on her arms on the steering wheel. When he

yelled to get her attention, she leaned back and replied “I’m okay.” Malone testified that

Appellant did not appear to be injured but seemed “disoriented” and “disheveled.” He then

returned to his vehicle and waited for the police to arrive.


       Lubbock Police Officer Brady Lewis testified he arrived on the scene and observed

a silver Toyota Four Runner parked “in-between quite a few trees.” Unable to access the



       1
        Although Appellant challenges the trial court’s denial of her motion for directed
verdict, she also argues the evidence is both legally and factually insufficient to support her
conviction. Thus, in the interest of justice, we will apply both standards in our analysis.

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driver’s side door, he opened the passenger side door and found Appellant asleep in the

driver’s seat. When Lewis asked her whether she had been involved in an accident, she

replied “no” and told him she wasn’t driving. Lewis immediately detected strong odor of an

alcoholic beverage on her breath and noticed that her eyes were bloodshot and her speech

was slurred. Appellant admitted that she had drank six beers. Lewis then administered

three field sobriety tests and, based on his observations, arrested Appellant for driving

while intoxicated. Malone and Lewis both testified for the State at Appellant’s jury trial.

Appellant did not testify. At the conclusion of the State’s evidence, Appellant moved for

directed verdict claiming the State failed to prove she was operating the vehicle. The

motion was denied, and she was subsequently convicted of the offense.


       By her sole point of error, Appellant contends the trial court should have granted her

directed verdict because the only evidence regarding whether she operated the vehicle

was the fact that she was found asleep behind the wheel when the vehicle was at a

complete stop. She contends this evidence is legally and factually insufficient to support

the jury’s verdict. We disagree.


                                      Law and Analysis


       The standard of review with respect to a trial court’s failure to grant a directed verdict

is the same as that applied in reviewing the sufficiency of the evidence. Williams v. State,

937 S.W.2d 479, 482 (Tex.Crim.App. 1996); Madden v. State, 799 S.W.2d 683, 686

(Tex.Crim.App. 1990). When both the legal and factual sufficiency of the evidence are

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challenged, we must first determine whether the evidence is legally sufficient to support the

verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). It is a fundamental

rule of criminal law that one cannot be convicted of a crime unless it is proved beyond a

reasonable doubt that the defendant committed each element of the alleged offense. U.S.

Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2006); Tex. Pen.

Code Ann. § 2.01 (Vernon 2003). When conducting a legal sufficiency review we review

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

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

doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573

(1979); McKinney v. State, No. PD-594-05, PD-595-05, PD-596-05, 2006 WL 3302834,

at *1 (Tex.Crim.App. Nov. 15, 2006). We conduct this analysis by considering all the

evidence–whether proper or improper–so that we can make an assessment from the jury's

perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Crim.App. 1996). The standard of

review is the same for both circumstantial and direct evidence. King v. State, 895 S.W.2d

701, 703 (Tex.Crim.App. 1995). We must uphold the verdict unless it is irrational or

unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d

866, 867 (Tex.Crim.App. 1988).


       When an appellant challenges the factual sufficiency of the evidence, we review all

the evidence without the prism of "in the light most favorable to the prosecution" and set

aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to

be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). We

                                             4
must determine, after considering all the evidence in a neutral light, whether the jury was

rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d

477, 484 (Tex.Crim.App. 2004 ), overruled in part, Watson v. State, No. PD-469-05, 2006

WL 2956272, at *10 (Tex.Crim.App. Oct. 18, 2006). We cannot reverse a conviction and

order a new trial unless we find some objective basis in the record that demonstrates that

the great weight and preponderance of the evidence contradicts the jury’s verdict. Watson,

2006 WL 2956272, at *10. Furthermore, we cannot conclude that appellant’s conviction

is “clearly wrong” or “manifestly unjust” simply because, based on the evidence presented,

we disagree with the jury’s verdict. Id.; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.

1997).


         In order to obtain a conviction for driving while intoxicated, the State must prove a

defendant 1) was intoxicated 2) while operating a motor vehicle 3) in a public place. Tex.

Pen. Code Ann. § 49.04(a) (Vernon 2003). Here, Appellant does not contest that she was

intoxicated and in a public place. Instead, she only challenges the State’s evidence

pertaining to whether she operated the vehicle. Although the term "operate" is not

statutorily defined, operation of a motor vehicle is found when the totality of the

circumstances demonstrates that the defendant took action to affect the functioning of a

vehicle in a manner that would enable the vehicle's use. Denton v. State, 911 S.W.2d 388,

390 (Tex.Crim.App. 1995); Barton v. State, 882 S.W.2d 456, 459 (Tex.App.--Dallas 1994,

no pet.).



                                               5
       The State’s evidence regarding Appellant’s operation of the vehicle consisted solely

of the testimony of eyewitnesses Barry Malone and Officer Brady Lewis. Malone testified

that he observed the vehicle moving through the parking lot and saw it strike a tree;

however, on cross-examination, he admitted he could not see who was in the vehicle until

it was stopped and he was able to look through the passenger side window. He estimated

that it took less than forty-five seconds from the time he first saw the vehicle until he was

able to turn around and check on the driver. Malone did concede that during this time,

Appellant’s vehicle “was out of [his] view at some point.” Officer Lewis also admitted that

he did not see appellant operate the vehicle; however, he did state that when he arrived,

she was the only person in the vehicle and she was “passed out asleep” on the steering

wheel. Both men testified that they were unable to access the driver’s side door due to

foliage and trees. Malone concluded that it would have been “very difficult” for someone

to have exited the vehicle on the driver’s side. The State maintains this circumstantial

evidence is sufficient to show Appellant was the only person who could have operated the

vehicle.


       On the other hand, Appellant claims the evidence “raises the hypothesis that

another person could have operated the vehicle.”          Appellant maintains that, while

witnessing the incident, Malone and his wife made “present sense statements” suggesting

that there was more than one person in the vehicle. In addition, Appellant directs us to her

statement to Lewis that she wasn’t driving. She argues the evidence does not reflect

whether the vehicle was running, whether it was in gear, whether the vehicle’s taillights

                                             6
were on, or the location of the vehicle’s keys.   She also cites the fact that she had no

visible seat belt or facial injuries as proof that she was not operating the vehicle when it

struck the tree. Citing Kelley v. State, 163 Tex.Crim. 531, 294 S.W.2d 404 (1956), and

Miller v. State, No. 08-03-00268-CR, 2005 WL 427504 (Tex.App.–El Paso Feb. 17, 2005,

no pet.) (not designated for publication), Appellant contends the State failed to disprove

the hypothesis that the vehicle could have been driven by another person and failed to

prove that she operated the vehicle. We disagree.


        Neither Kelley nor Miller is factually analogous to lend support to Appellant’s

position. In Kelley, the defendant was found intoxicated in the passenger seat of a

wrecked automobile with the driver’s door open. Kelley, 294 S.W.2d at 404. When

questioned, the defendant replied, “they are gone” or “they are not here anymore.” Id. The

Court of Criminal Appeals held that the State did not disprove the hypothesis that another

person could have driven the vehicle and found the evidence insufficient to support a

conviction for driving while intoxicated. Id. at 404-05. Moreover, the State is not required

to exclude every other reasonable hypothesis other than the guilt of the defendant. Geesa

v. State, 820 S.W.2d 154, 156 (Tex.Crim.App. 1991), overruled on other grounds , Paulson

v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). In Miller, the El Paso court found the

evidence to be legally and factually sufficient where the defendant was found asleep

behind the wheel of his vehicle that was parked in the middle of the road with the engine

running. Miller, 2005 WL 427504, at *5.



                                             7
       In Appellant’s case, there is no evidence in the record which suggests anyone other

than Appellant operated the vehicle. In fact, the evidence indicates that it would be

unlikely, if not illogical, that some unknown driver would switch places with Appellant, exit

through the passenger side door, and flee the scene in the forty-five seconds it took for

Malone to return to the scene of the collision. The jury, as trier of fact, may choose to

believe all, some, or none of any witness's testimony. Sharp v. State, 707 S.W.2d 611,

614 (Tex.Crim.App. 1986). A jury's decision is not manifestly unjust merely because it

resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410.

Viewing the totality of the evidence in the light most favorable to the prosecution, we

conclude a rational trier of fact could have found beyond a reasonable doubt that Appellant

was the sole operator of the vehicle. Therefore, the trial court did not err in denying

Appellant’s motion for directed verdict. We further conclude the evidence is not so weak

or so against the overwhelming weight of the evidence as to render the jury's verdict to be

clearly wrong and unjust. Appellant's point of error is overruled.


       Accordingly, the trial court’s judgment is affirmed.



                                                  Patrick A. Pirtle
                                                    Justice

Do not publish.




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