                                                                                     ACCEPTED
                                                                                 02-15-00207-CR
                                                                     SECOND COURT OF APPEALS
                                                                           FORT WORTH, TEXAS
                                                                          12/30/2015 10:11:30 AM
                                                                                  DEBRA SPISAK
                                                                                          CLERK

                IN THE COURT OF APPEALS FOR THE
            SECOND DISTRICT OF TEXAS AT FORT WORTH
                                                                 FILED IN
JAMES ROBINSON,                    §                      2nd COURT OF APPEALS
                                                           FORT WORTH, TEXAS
   APPELLANT                       §
                                                         12/30/2015 10:11:30 AM
                                   §                           DEBRA SPISAK
     v.                            §                   No. 02-15-00207-CR
                                                                  Clerk
                                   §
THE STATE OF TEXAS,                §
   APPELLEE                        §


                             STATE'S BRIEF


                FROM COUNTY CRIMINAL COURT NO. 5
                      DENTON COUNTY, TEXAS
                TRIAL CAUSE NUMBER CR-2012-04882-E
          THE HONORABLE COBY WAD DILL, JUDGE, PRESIDING

                                       PAUL JOHNSON
                                       Criminal District Attorney
                                       Denton County, Texas
Oral argument is requested
only if Appellant is                   CATHERINE LUFT
requesting argument.                   Assistant Criminal District Attorney
                                       Chief, Appellate Division
                                       State Bar No. 24013067
                                       1450 East McKinney, Suite 3100
                                       Denton, Texas 76209
                                       (940) 349-2600
                                       FAX (940) 349-2600
                                       catherine.luft@dentoncounty.com
                                       BRITNEY TOMBERLIN
                                       WENDY CORREA
                                       Assistant Criminal District Attorneys
                                         TABLE OF CONTENTS


INDEX OF AUTHORITIES ..................................................................................... ii
STA TEMENT OF THE CASE ................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 2
SUMMARY OF THE STATE'S ARGUMENTS .................................................... 4
STATE'S RESPONSE TO APPELLANT'S POINT OF ERROR ONE
(SUFFICIENCY) .......... ................................................................................ ............. 5
    Appellant's Contention ........................................................................................ 5
    State's Reply ......................................................................................................... 5
    Argument And Authorities ..................... .................... ............... ................. .......... 5
         Standard of Review I Pertinent Law ............................................................... 5
         The evidence was legally sufficient to
         support the jury's guilty verdict ...................................................................... 6
CONCLUSION AND PRAYER ............................................................................. 10
CERTIFICATE OF COMPLIANCE ...................................................................... I 0
CERTIFICATE OF SERVICE ................................................................................ 11
                                    INDEX OF AUTHORITIES



Cases

Bigby v. State
  892 S.W.2d 864 (Tex. Crim. App. 1994) overruled in part
 on other grounds by Tennard v. Dretke 542 U.S. 274,
  124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004) ............................................................ 9

Brooks v. State
 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................................... 5, 6

Carrasquillo v. State
 No. 01-10-00217-CR, 2011 Tex. App. LEXIS 8943
 (Tex. App.- Austin Nov. 10, 2011, pet. dism'd)
 (not designated for publication) .............................................................................. 8

Denton v. State
 911 S.W.2d 388 (Tex. Crim. App. 1995) ... .. .......................................................... 6

Dickson v. State
 642 S.W.2d 185 (Tex. App.- Houston [14th Dist.] 1982, pet. ref'd.) .................. 8

Duenez v. State
 735 S.W.2d 563 (Tex. App.- Houston [14th Dist.] 1987, pet. ref'd) ................... 8

Hernandez v. State
 939 S.W.2d 173 (Tex. Crim. App. 1997) (en bane) (same) ................................... 9

Jackson v. Virginia
  443 U.S. 307, 99 S. Ct. 2781, 61L.Ed.2d 560 (1979) ..................................... 5, 6

Kirsch v. State
 357 S.W.3d 645 (Tex. Crim. App. 2012) ..................................... .......................... 6

Middlebrook v. State
 803 S.W.2d 355 (Tex. App.- Fort Worth 1990, pet. ref'd) ................................... 8



                                                       11
Priego v. State
 457 S.W.3d 565 (Tex. App.- Texarkana 2015, pet. refd) .................................... 6

Santos v. State
 No. 01-94-01063-CR, 1995 Tex. App. LEXIS 3079
 (Tex. App.- Houston [1st Dist.] Dec. 7, 1995, no pet.)
 (not designated for publication) ... .. ......................................................................... 8

Tennard v. Dretke
 542 U.S. 274, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004) ..................................... 9




                                                        111
                      IN THE COURT OF APPEALS FOR THE
                  SECOND DISTRICT OF TEXAS AT FORT WORTH


JAMES ROBINSON,                                              §
   APPELLANT                                                 §
                                                             §
         v.                                                  §                           No. 02-15-00207-CR
                                                             §
THE STATE OF TEXAS,                                          §
   APPELLEE                                                  §




                                               STATE'S BRIEF



TO THE HONORABLE COURT OF APPEALS:


                                     STATEMENT OF THE CASE

The Charge ........................................................................ Driving While Intoxicated
                                                                                                   (C.R. at 7)
                                                                                     Tex. Penal Code§ 49.04

The Plea ...................................................................................................... Not Guilty
                                                         (3 R.R. at 15; 4 R.R. at 39; C.R. at 095-096)

The Verdict (Jury) ............................................................................................. Guilty
                                                                         (5 R.R. at 45; C.R. at 095-096)

The Punishment ·(Judge) ............... 360 Days in County Jail, Probated for 20 Months
                                                     (5 R.R. at 59-60; C.R. at 095-096)




                                                            1
                           STATEMENT OF FACTS

      At approximately 1:47 one morning, as Officer Putman sat in his car in a

parking lot with his windows down working on reports, he heard a male and a

female arguing nearby (4 R.R. at 16-17, 77-89, 102-03, 110). Officer Putman saw

a male standing near a car stopped in the far right lane on Eldorado Parkway a

short distance from where Eldorado intersects with Legacy Drive (4 R.R. at 17, 64,

97-98). The male appeared upset and was using profanity, and the female was

walking west on Eldorado away from the car (4 R.R. at 17, 64, 66). Officer Putman

began putting his paperwork away and subsequently saw the car move from

Eldorado, tum right onto Legacy, and then stop on Legacy (4 R.R. at 17, 90-91, 97,

110-11 ). The female was still walking west on Eldorado (4 R.R. at 17-18,

97-99, 111).

      Once Officer Putman had put his paperwork aside, he drove past the car

where it was parked on Legacy (4 R.R. at 18, 96, 98, I 04, I 07-08). The male,

Appellant, was now outside by the driver's side of the vehicle and he then

appeared to walk after the female, his wife (4 R.R. at 19-20, 63-64, 66, 77, 98). At

some point, however, Appellant's path changed, and he trotted across Eldorado

and went behind a trailer where he appeared to be hiding (4 R.R. at 20-21, 23 ).

When Officer Putman made contact with him, Appellant seemed really flustered

and the officer could immediately smell an alcoholic beverage on him (4 R.R.



                                         2
at 23, 28, 99-100). Appellant told the officer that it had been a few hours since he

had had any alcohol, but he later told the officer that he was a nondrinker (4 R.R.

at 23). Appellant's shirt was wet and he told the officer that he had taken a big

drink and had spilled some (4 R.R. at 23-24, 27). Appellant's eyes were bloodshot

and glassy, and he slurred his words at times and spoke as though he was talking

with a thick tongue (4 R.R. at 27-28). Appellant became argumentative when the

officer began asking him questions about alcohol, and he told Officer Putman that

it was not against the law to be drunk in America (4 R.R. at 26-27; see 4 R.R.

at 31-32).   He also refused to take any field sobriety tests (4 R.R. at 26-27).

Officer Putman arrested Appellant and took him to the department's Intoxilyzer

room where Appellant refused to give a breath specimen (4 R.R. at 28-31, 50-51;

see State's Exhibit l ).




                                         3
                SUMMARY OF THE STATE'S ARGUMENTS

State's Reply To Appellant's Point Of Error One

      The evidence was sufficient to show that Appellant operated the vehicle as

there was evidence to support that Officer Putman saw Appellant get out of the

driver's seat after the car pulled up on Eldorado, get back into the car as the female

was walking, and make a tum. Additionally, Appellant's wife told an officer that

"I don't really get why he stopped the car. I told him to go ahead and go on and let

me walk."




                                          4
    STATE'S RESPONSE TO APPELLANT'S POINT OF ERROR ONE
                                  (SUFFICIENCY)

Appellant's Contention

      The evidence was legally insufficient to support the jury's gui lty verdict.

Specifically, the evidence was insufficient to show that Appellant operated

the vehicle.

State's Reply

      The evidence was legally sufficient to show that Appellant operated

the vehicle.

Argument And Authorities

Standard of Review I Pertinent Law

      When reviewing whether there was sufficient evidence to support a

conviction, an appellate court looks at the evidence presented in the light most

favorab le to the verdict and determines 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, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

The jury is the sole judge of the witnesses' credibility and of the weight to be given

to their testimony and therefore, a reviewing court defers to the jury's

determinations on these matters rather than substituting its own judgment.

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). When the evidence



                                          5
in the record can support conflicting inferences, a reviewing court assumes that the

jury resolved the conflict in favor of the prosecution, regardless of whether that

resolution affirmatively appears on the record. Brooks, 323 S.W.3d at 900, n.13

(quoting Jackson, 443 U.S. at 326).

      Although the Penal Code does not define the word "operate," for sufficiency

reviews, 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."' Kirsch v. State, 357 S.W.3d 645,

650-51 (Tex. Crim. App. 2012) (quoting Denton v. State, 911 S.W.2d 388, 390

(Tex. Crim. App. 1995)); see Priego v. State, 457 S.W.3d 565, 569 (Tex.

App.- Texarkana         2015,   pet.   ref'd)   (stating   that   term     operating   is

interpreted broadly).

The evidence was legally sufficient to support the jury's guilty verdict.

      The evidence adduced at trial was sufficient to show that Appellant operated
               1
the vehicle.       Although Officer Putman said he did not see, or could no longer

remember seeing, Appellant get out of the driver's seat and/or car at the time of

trial, during a license suspension hearing, and during a motion-to-suppress hearing

(2 R.R. at 10, 22-23; 4 R.R. at 60-64, 73-77, 100-102, 108-110), he can be heard

on the recording from his patrol car at the time of the offense - approximately


      Appellant does not challenge the jury's finding that he was intoxicated.

                                            6
three-and-a-half years before trial - telling Appellant that he saw him get out of the

driver's seat and telling another officer that he saw Appellant get out of the

driver's seat after the car pulled up on Eldorado, and then saw him get back into

the car as the female was walking and make "that tum right there, trying to cut her

off' (see State's Exhibit 2 [Putman's In Car Video] at 02:01 :56, 02:03:56). 2

Officer Putman testified at trial that the statements he made on the video were

accurate and that one's memory was typically better at the time the actual events

were occurring (4 R.R. at 102).      Additionally, Officer Putnam included in his

report, made within hours of the offense, that he observed Appellant get out of the

driver's side of the vehicle (4 R.R. at 73-76, I 09-110). And Officer Putman was

still sure at the time of trial that he saw Appellant standing by the driver's side of

the vehicle when his wife was walking across the road (4 R.R. at 77). He also

testified that he saw the vehicle moving when the female was not in it (4 R.R.

at 100, 111).

      Officer Tyler Tibbitts also testified at trial (4 R.R. at 123). When he arrived

on the scene he was prompted to find and make contact with Appellant's wife

(4 R.R. at 126; State's Exhibit 4 [Tibbitts' In Car Video]). On the recording from

Tibbitts' patrol car, Appellant's wife can be heard telling Tibbitts that she was

2
       Appellant said "you didn't see me driving while intoxicated" to which
Officer Putman responded "Yes sir I did. I was in the parking lot when you two got in
your argument and you got out of the driver's seat of that car." (State's Exhibit 2
at 02:01 :56).

                                          7
walking home and had wanted Appellant to drive home (State's Exhibit 4 at

01 :54:00) and that "I don't really get why he stopped the car. I told him to go

ahead and go on and let me walk." (State's Exhibit 4 at 01 :54:26). The evidence

was sufficient to show that Appellant operated the vehicle. See Dickson v. State,

642 S.W.2d 185 (Tex. App.- Houston [14th Dist.] 1982, pet. ref'd.) (evidence

supported an inference that defendant was operating the vehicle where appellant

was seen exiting the driver's side door immediately after the vehicle came to a

stop); see also Middlebrook v. State, 803 S.W.2d 355, 360 (Tex. App.-Fort Worth

1990,    pet.   ref'd);     Duenez     v.   State,        735   S.W.2d      563,     566   (Tex.

App.-Houston        [14th    Dist.]    1987,       pet.    ref d);    Carrasquillo    v.   State,

No. 01-10-00217-CR, 2011              Tex. App. LEXIS                8943 , at **15-19 (Tex.

App.- Austin Nov. 10, 2011, pet. dism'd) (not designated for publication);

Santos v. State, No. 01-94-01063-CR, 1995 Tex. App. LEXIS 3079 (Tex.

App.-Houston [1st Dist.] Dec. 7, 1995, no pet.) (not designated for publication).

        Further, although Appellant repeatedly told Officer Putman that he had not

been driving and that the officer had not seen him driving, Appellant made several

inconsistent statements to Officer Putman from which a jury could have questioned

his credibi lity. For example, it is clear from the evidence admitted at trial that

Appellant was intoxicated, but Appellant went from telling the officer that he had a

few drinks a few hours before and saying that there was nothing illegal about being



                                               8
drunk in America, to telling the officer that he was a non-drinker (see 4 R.R. at 23;

State's Exhibit 2 at 01:52:34, 01:53:14, 02:00:41). Appellant also went from

saying that his wife had driven the car to saying that she had not driven the car

(State's Exhibit 2 at 01 :53 :56, 02:06:06). Additionally, Appellant denied that the

car was even his (4 R.R. at 28; State's Exhibit 2 at 01:52:00, 01:54:00, 02:06:19). 3

       Further, the evidence supports that Appellant attempted to hide from

Officer Putman when the officer began to investigate the disturbance (see 4 R.R.

at 19-21, 23; State's Exh.ibit 2 at 01:50:00, 01:51:32, 01:55:11, 02:04:21). The

jury could have inferred Appellant's consciousness of guilt from his efforts to

avoid apprehension. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.

1994), overruled in part on other grounds by Tennard v. Dretke, 542 U.S. 274,

124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004) (holding that evidence of flight is

admissible as a circumstance from which a jury may draw an inference of guilt);

Hernandez      v. State,    939     S. W.2d    173,    178   (Tex.    Crim.    App.   1997)

(en bane) (same).

       Accordingly, the State requests that this Court overrule Appellant's sole

point of error.




3
       His wife later testified that the car actually belonged to a friend (4 R.R.
at 161-162).

                                              9
                          CONCLUSION AND PRAYER

      Appellant's trial was without reversible error.         The State prays that

Appellant's conviction and sentence be affirmed.


                                          Respectfully submitted,

                                          PAUL JOHNSON
                                          Criminal District Attorney
                                          Denton County, Texas



                                          <l_ATHERINE ffilF
                                          Assistant Criminal District Attorney
                                          Chief, Appellate Division
                                          State Bar No. 24013067
                                          1450 East McKinney, Suite 3100
                                          Denton, Texas 76209
                                          (940) 349-2600
                                          FAX (940) 349-2751
                                          catherine. luft@dentoncounty.com



                      CERTIFICATE OF COMPLIANCE

      The State certifies that the State's Brief in the instant cause contained a word

count of 1723,     said   count being generated by the           computer program

Microsoft Word that was used to prepare the document.




                                          cAllERINELu

                                         10
                        CERTIFICATE OF SERVICE

      A true copy of the State's brief has been sent by United States Mail, postage

prepaid, to counsel for Appellant, Tom Pappas, 900 Jackson Street, Suite 330,

Dallas, Texas 75202, on this, the 30th day of December 2015 .




                                        11
