                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00060-CR



          JESSE DWAYNE BLACK, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



            On Appeal from the County Court
                 Lamar County, Texas
                Trial Court No. 62549




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                       MEMORANDUM OPINION
           After Jesse Dwayne Black was convicted by a Lamar County jury for driving while

intoxicated (DWI)1 and sentenced to 270 days’ imprisonment, he has appealed. Black’s two points

of error on appeal are that he claims (1) there was insufficient evidence to prove he was operating

a vehicle and (2) the trial court erred when it denied him a continuance. We overrule both points

and affirm the trial court’s judgment and sentence.

I.         Challenge to Sufficiency of the Evidence

           Quite understandably, Black makes no challenge to the sufficiency of the proof that he was

intoxicated at the time of the incident that gave rise to the State’s charge of DWI.2 Instead, Black

argues that because no witness testified to having seen him driving his truck, there was insufficient

evidence to prove that he operated a motor vehicle while intoxicated.

           A.      Measure of Sufficiency

           In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency review



1
    See TEX. PENAL CODE ANN. § 49.04(d) (West Supp. 2014).
2
 When police discovered Black, he was alone in the cab of his Toyota Tundra pickup truck, which had crashed into a
tree. Black was taken to a hospital, where he was described as exhibiting signs of intoxication, including acting
belligerent, vulgar, and rude. He argued with hospital staff, and tests showed his blood-alcohol concentration to have
been .264. If a person is shown to have a blood-alcohol concentration of at least .08, he satisfies one of the definitions
of “intoxicated.” TEX. PENAL CODE ANN. § 49.01(2)(B) (West 2011).

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focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J.,

concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving

deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

       Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id.

       B.      Evidence Heard

       Black testified that after a day of drinking beer and eating barbeque with friends, he asked

a friend, Gregory Winkler, to drive him home in Black’s truck because Black admitted that he was

quite intoxicated at that time. However, Black stated that Winkler crashed the truck into a tree.

Under Black’s narrative, his head struck the passenger-side sun visor, breaking the visor and

injuring his head, causing him to bleed from the wound onto the passenger’s side floorboard area.

Black stated that although he was fading into and out of consciousness, he remembered Winkler

telling him that he (Winkler) was going for help.



                                                 3
        The first person to arrive on the scene, according to Black, was his cousin, Mark Black,

who testified that on his arrival, Black was sitting on the passenger’s side of the truck’s cab.

Black’s girlfriend, Renaee Ellis, testified that two women had come to her door, informed her of

the wreck, and presented her with the keys to Black’s truck. Ellis stated that she gave the keys to

the police at the scene, but neither of the police officers mentioned this delivery. Ellis stated that

on her arrival, Black was seated on the driver’s side of the pick-up.

        The State presented testimony from two Paris police officers who responded to the call of

a motor vehicle accident. Officer Johnny Bangs testified that he arrived first and found Black

slumped over in the truck’s cab, sitting in the passenger’s seat. However, only moments later,

Bangs corrected himself and said that Black was sitting in the driver’s seat when he arrived. Bangs

said that Black was unable to answer Bangs’ questions at that time and that emergency medical

personnel removed Black from the driver’s door, something that the audio/video recording from

Bangs’ dashboard camera in his patrol car confirmed. Officer Cody Flatt said he arrived

immediately after Bangs and found Black seated in the driver’s seat, but slumped over the center

console with his head facing the passenger area. Flatt also testified that emergency personnel

removed Black from the driver’s side. Flatt also stated that he saw blood on the floorboard of the

passenger side of the cab. The dashboard camera recording also documents that someone

(apparently Bangs) reported by radio to dispatch and described Black as having no apparent

external injuries.




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         Black directs us to two cases, Hudson v. State3 and Reddie v. State4 as his precedent. In

each of these cases, the evidence was found to be insufficient to establish that the appellants were

operating the respective vehicles. (We note that case analysis has changed somewhat through the

years, and we find that a more contemporary case more accurately directs our analysis today.) In

Murray v. State, 457 S.W.3d 446 (Tex. Crim. App. 2015), Murray was charged with DWI after he

was found asleep in his pickup truck. Murray was located by the police in the driver’s seat of the

cab; the truck’s engine was running, the radio was turned up loud, and the truck was pulled partially

into the driveway of a fireworks stand and partly on the roadside’s improved shoulder. Although

there were no signs of alcoholic beverages in the vicinity, Murray “appeared very intoxicated.”

Id. at 448. Considering the aggregate evidence in the light most favorable to the verdict, the Texas

Court of Criminal Appeals found the evidence to be sufficient to support the jury’s DWI verdict.

The court pointed to Murray’s state of intoxication when discovered by the arresting officer,

coupled with Murray’s admission he had been drinking, although there were no alcoholic

beverages in the area. The court concluded that “a factfinder could have reasonably inferred that

Appellant consumed alcoholic beverages to the point of intoxication somewhere other than where


3
 Hudson v. State, 510 S.W.2d 583, 584 (Tex. Crim. App. 1974). In this case, Hudson was discovered seated in his
1966 blue Oldsmobile, which had a flat tire and warped wheel; Hudson’s feet were on the ground. The court pointed
out the absence of any “testimony whatsoever” as to how long the car had been at the location, that it was the same
blue Oldsmobile Hudson and his wife had purchased, as to how the car came to be at the location, or as to who drove
it.
4
 Reddie v. State, 736 S.W.2d 923 (Tex. App.—San Antonio 1987, pet. ref’d). In this case, Reddie was seen “slumped
over the steering wheel of a car” by a passersby; the vehicle was idling while “parked in the middle of a road leading
into a new residential subdivision . . . .” Id. at 924. In finding the evidence insufficient to prove Reddie had operated
the vehicle while intoxicated, the appellate court pointed out the absence of evidence showing when Reddie had
arrived at the location, whether another person had been in the car, or how long the car and Reddie had been at the
location. “Moreover, there [was] no proof to show that appellant was intoxicated when he arrived on the scene or
when he may have become intoxicated.” Id. at 925.
                                                           5
he was found.” Id. at 449. Further, because Murray was the only person in the area, “a factfinder

could have also reasonably inferred that Appellant drove his vehicle to the location at which he

was found after drinking to intoxication.” Id.

         Additionally, the Court of Criminal Appeals has said that a totality of the circumstances

approach should be used in determining whether the State has proven that a DWI defendant

operated a motor vehicle. “To find operation[,] . . . the totality of the circumstances must

demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that

would enable the vehicle’s use.” Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995).

         Here, (in contrast to the Murray case) the engine of Black’s vehicle was not running when

police arrived. Although when Bangs arrived, there were several people in the vicinity of the

truck, none of them appeared to have been involved in the wreck itself. The vehicle belonged to

Black, and he was found alone in the vehicle, there having been no indication at that time that

anyone had been in the vehicle with Black. (Black did not present his theory of Winkler having

been the driver until a few days before trial). The jury was responsible for weighing the credibility

of the witnesses and resolving conflicts in testimony. See Hooper, 214 S.W.3d at 13.5 Black

admitted to drinking all day to the point of intoxication so that part of the conviction equation was

not in doubt. The testimony of Mark Black that Black was located in the passenger seat of the

truck’s cab when he arrived was nothing more than circumstantial evidence for the jury to weigh,

as was Black’s testimony that Winkler had been the driver. See White v. State, 412 S.W.3d 125,



5
 It is the jury’s responsibility “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.”
                                                           6
129 (Tex. App.—Eastland 2013, no pet.) (“[T]he jury was free to reject Appellant’s self[-]serving

testimony at trial that he was not operating the vehicle, particularly in light of his admission that

he could not recall what transpired at the scene.”). The totality of the circumstances would have

allowed the jury to reasonably infer that Black had operated his truck while intoxicated. We

overrule Black’s first point of error.

II.      Complaint Concerning Denial of Continuance Not Preserved

         Black argues in his second point of error that the trial court erred in denying Black’s request

for a continuance.6 Although Black requested a continuance before testimony began, he did so

only orally, making no written, sworn motion as required by the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.08 (West 2006). “A motion for

continuance made during trial, that is not in writing and is not sworn to, will not preserve error if

it is denied.” White v. State, 982 S.W.2d 642, 646 (Tex. App.—Texarkana 1998, pet. ref’d) (citing

Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995)); see also Anderson v. State,

301 S.W.3d 276, 280–81 (Tex. Crim. App. 2009) (“[B]y making an unsworn pretrial oral motion

for a continuance, Anderson failed to preserve his claim that the trial judge erred . . . .”). This

point has not been preserved for our review, and we overrule it.




6
 Black sought a continuance to locate Winkler, who Black said was actually driving, see supra Part I.B; although a
subpoena had been issued and Black’s investigator testified to his attempts to locate Winkler, Black did not try to find
Winkler until just a few days before trial. Black told the court he had not known of Winkler or his potential importance
until that time. Granting or denying a motion for continuance is left to the trial court’s discretion. See Smith v. State,
721 S.W.2d 844, 850 (Tex. Crim. App. 1986). Black never explained why he did not try to locate Winkler sooner or
even make the potential witness’ existence known to counsel in the several months that passed between the State’s
information and trial. Trial occurred about eight months after the incident giving rise to the State’s allegation. The
State’s information was filed about six months before trial.
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      We affirm the trial court’s judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:      October 19, 2015
Date Decided:        November 4, 2015

Do Not Publish




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