Reversed, Rendered and Opinion Filed August 22, 2019




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01133-CR

                         ROBERT EARL HARRELL, JR., Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 1
                                  Grayson County, Texas
                            Trial Court Cause No. 2017-1-0644

                              MEMORANDUM OPINION
                   Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                Opinion by Justice Partida-Kipness

       Appellant, Robert Earl Harrell, Jr., was charged with driving while intoxicated (“DWI”),

enhanced by a prior DWI conviction. The jury convicted him of the offense, as alleged in the

information. The trial court assessed punishment at 365 days confinement in a county jail,

suspended the sentence and placed Harrell on community supervision for a period of twenty-four

months. Harrell contends the evidence is insufficient to establish the corpus delicti of DWI

because there is no evidence other than his extrajudicial statements to show he operated the vehicle.

We reverse the trial court’s judgment and render a judgment of acquittal. Because the issues are

settled in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.4.
                                               BACKGROUND

        On March 5, 2017, at 4:04 a.m., the Van Alstyne Police Department received a 911 call

from a motorist travelling southbound on Highway 75. The 911 call was admitted into evidence

and played for the jury. The callers1 described a gray mini-van they were following that was

“driving dangerously,” “all over the road,” “going into the median,” and “almost hit us a couple

of times.” The callers reported the license plate number of the van and told the dispatcher the van

had exited the highway and pulled into the McDonald’s parking lot. The caller stated that they

took the same exit, drove by the McDonald’s parking lot and saw the van sitting in the gas station

part of the lot, not at a gas pump but pulled off to the side. The callers gave the dispatcher a name,

driver’s license number, and a phone number where they could be reached.

        Officer Brandon Blair responded to the 911 dispatch and arrived in the McDonald’s

parking lot at 4:11 a.m. The video from the officer’s dash-cam was admitted into evidence and

played for the jury. When the officer approached the van, the lights were on, but the engine was

not running. He saw Harrell sitting in the driver’s seat with his seatbelt on. He also saw two other

people sitting in the backseat of the van. Officer Blair testified that when Harrell rolled down his

window, he immediately smelled an odor of alcohol beverage emitting from the vehicle. He also

noticed that Harrell’s eyes appeared to be bloodshot, and that his speech was somewhat mumbled

and slurred. Harrell told the officer that he and his friends had been at Choctaw Casino since 7:30

that evening, that he drank three or four beers while there, and that he lived in Arlington, Texas.

Officer Blair then conducted the standardized field sobriety tests, and based upon the number of

clues he observed, believed that Harrell was intoxicated. Officer Blair testified that Harrell

admitted to him that he had been driving the car; Harrell’s statements admitting that he was driving



    1
      It is evident from the audio of the 911 call that there were two people in the vehicle that reported the van’s
reckless driving, a male and a female.
                                                       –2–
can also be heard on the dash-cam video shown to the jury. Harrell’s blood was also tested. The

results of the test indicated that Harrell had a blood alcohol concentration of .095.

                                            ANALYSIS

       In his first issue, Harrell contends the evidence is legally insufficient to support the verdict.

We agree.

        In reviewing the sufficiency of the evidence, we view all the 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. Jackson v. Virginia, 443 U.S. 307,

313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume the fact

finder resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences

in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). We defer to the trier of fact’s determinations of witness credibility and the weight to be

given their testimony. Brooks, 323 S.W.3d at 899. Circumstantial evidence is as probative as

direct evidence in establishing the guilt of the accused.            Clayton, 235 S.W.3d at 778.

Circumstantial evidence alone can be sufficient to establish guilt. Id.

       The corpus delicti rule concerns evidentiary sufficiency in cases involving an extrajudicial

confession. Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim. App. 2015). “When the burden of

proof is ‘beyond a reasonable doubt,’ a defendant’s extrajudicial confession does not constitute

legally sufficient evidence of guilt absent independent evidence of the corpus delicti.” Id. (quoting

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). To satisfy the corpus delicti rule,

there must be evidence independent of a defendant’s extrajudicial confession showing that the

“essential nature” of the charged crime was committed by someone. Hacker, 389 S.W.3d at 866.

The corroborating evidence need not be sufficient by itself to prove the offense; there simply must

be “some evidence which renders the commission of the offense more probable than it would be

                                                 –3–
without the evidence.” Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997) (quoting

Chambers v. State, 866 S.W.2d 9, 15–16 (Tex. Crim. App. 1993); Rocha v. State, 16 S.W.3d 1, 4

(Tex. Crim. App. 2000) (citing Williams).

          A person commits the offense of DWI if he is intoxicated while operating a motor vehicle

in a public place. TEX. PENAL CODE § 49.04(a). The corpus delicti of DWI is that someone

operated a motor vehicle in a public place while intoxicated. Rajsakha v. State, No. 05-16-00489-

CR, 2017 WL 2628248, at *2 (Tex. App.—Dallas June 19, 2017, no pet.) (citing Pace v. State,

No. 05-16-00167-CR, 2017 WL 360669, at *2 (Tex. App.—Dallas Jan. 23, 2017, no pet.) (mem.

op.) (citing Folk v. State, 797 S.W.2d 141, 144 (Tex. App.—Austin 1990, pet. ref’d)). The penal

code does not define “operating” for the purposes of the DWI statute. Denton v. State, 911 S.W.2d

388, 389 (Tex. Crim. App. 1995). The court of criminal appeals, however, holds that a person

operates a vehicle when the totality of the circumstances “demonstrate that the defendant took

action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” Id.

at 390.

          During oral argument, the State conceded that Harrell’s extra-judicial confession was the

only evidence that proved Harrell operated the van but contended that the corpus delicti rule was

satisfied by corroborating evidence showing that the vehicle had just parked in the McDonald’s

parking lot, and that Harrell was sitting in the driver’s seat with his seat belt on. We disagree.

While it is true that Officer Blair found Harrell sitting in the driver’s seat with his seat belt on,

when the officer approached the vehicle, it was parked in a parking space in the McDonald’s

parking lot. The engine was not running, and there is no evidence that the keys were in the ignition.

The evidence shows that Officer Blair never saw the vehicle operating, either on the highway or

in the parking lot, and there was an approximately seven-minute gap between the time the 911 call

was received and the officer’s arrival in the parking lot. Although the 911 callers identified the

                                                –4–
vehicle, they never gave the dispatcher a description of the driver or identified him in any way.

The two passengers sitting in the back seat of the van were also arrested for being intoxicated but

were never questioned about who had been driving the vehicle before they parked. Further, the

evidence showed that when the 911 callers drove by the McDonald’s parking lot, they saw the van

already parked. In addition, the callers did not remain at the parking lot until the police arrived,

so there is no evidence regarding what happened between the time the callers saw the parked van

and the time Officer Blair arrived at the vehicle. The evidence also showed that the vehicle did

not belong to Harrell, but belonged to one of the two passengers.2

        While the jury is allowed to draw reasonable inferences, they are not permitted to draw

conclusions based on speculation. Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007.

“Speculation is mere theorizing or guessing about the possible meaning of facts and evidence

presented.” Id. “Theorizing or guessing as to the meaning of the evidence is never adequate to

uphold a conviction because it is insufficiently based on the evidence to support a belief beyond a

reasonable doubt.” Cary v. State, 507 S.W.3d 761, 766 (Tex. Crim. App. 2016).

        To reach the guilty verdict in this case, the jury would have had to infer that Harrell was

the person driving the van when the 911 callers saw it on the highway based simply on the fact

that he was sitting in the driver’s seat with his seat belt on when Officer Blair approached the

parked vehicle.       Under different circumstances, such an inference may not be completely

unreasonable, however, given the evidence, or lack thereof, pertaining to the time gap between the

911 call and when Officer Blair found him, we conclude that such a conclusion is not sufficiently

based on facts or evidence to support a finding beyond a reasonable doubt. “Although an appellate

court cannot act as a thirteenth juror and make its own assessment of the evidence, it does act as a


    2
      Officer Blair was not questioned during trial about whose vehicle it was. However, the video-cam shows that
the officer asked Harrell “if it was his buddie’s car,” to which Harrell responded that it was and indicated that the
vehicle belonged to one of the two people in the back seat.
                                                        –5–
safeguard to ensure that the factfinder’s verdict is a rational one that is based on more than a “mere

modicum” of evidence.” Cary, 507 S.W.3d at 766. Here, other than Harrell’s statements to Officer

Blair, there was no other evidence from which a jury could rationally conclude that Harrell was

operating the vehicle in a public place while intoxicated. Consequently, the evidence is insufficient

to support Harrell’s conviction for driving while intoxicated. We sustain Harrell’s first issue.3

                                                  CONCLUSION

          We reverse the trial court’s judgment and render judgment of acquittal.



                                                                ____________________________________
                                                                ROBBIE PARTIDA-KIPNESS
                                                                JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2
181133F.U05




   3
       Due to our disposition of the legal sufficiency challenge, we do not reach Harrell’s second issue.
                                                          –6–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 ROBERT EARL HARRELL, JR.,                         On Appeal from the County Court at Law
 Appellant                                         No. 1, Grayson County, Texas
                                                   Trial Court Cause No. 2017-1-0644.
 No. 05-18-01133-CR        V.                      Opinion delivered by Justice Partida-
                                                   Kipness, Justices Whitehill and Pedersen,
 THE STATE OF TEXAS, Appellee                      III participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the appellant is hereby ACQUITTED.


Judgment entered this 22nd day of August, 2019.




                                             –7–
