Opinion filed September 19, 2013




                                     In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-12-00071-CR
                                  __________

                  MICHAEL DAVID WHITE, Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 104th District Court
                               Taylor County, Texas
                          Trial Court Cause No. 17694B



                                   OPINION
      The jury convicted Michael David White of felony driving while
intoxicated.   The trial court assessed his punishment at confinement in the
Institutional Division of the Texas Department of Criminal Justice for a term of
nine years. In a single issue, Appellant challenges the sufficiency of the evidence
supporting his conviction. We affirm.
                                 Background Facts
      Officer Mary Guitar of the Abilene Police Department testified that she
responded to a report of a possible intoxicated driver at the McDonald’s on North
First Street in the early morning hours of January 24, 2010. When she arrived at
the restaurant, Officer Guitar observed a white pickup in the drive-through lane.
She observed that the engine of the vehicle was running and that the brake lights
were illuminated. She also observed that Appellant was the sole occupant of the
vehicle and that he had “passed out” behind the steering wheel. She further
observed that the transmission of the vehicle was in “drive.”        Officer Guitar
pounded on the driver’s side window to wake Appellant. When Appellant finally
awoke, she asked him to put the vehicle in “park.” Appellant responded by
unlocking the door of the vehicle. Another officer then entered the passenger’s
side of the vehicle and placed the vehicle in park.
      Officer Guitar testified that she could smell the odor of alcohol when she
opened the door of Appellant’s vehicle.       She requested Appellant to exit the
vehicle whereupon she administered field sobriety tests. She subsequently arrested
Appellant for driving while intoxicated.       After agreeing to provide a breath
specimen, Appellant answered affirmatively to Officer Guitar’s question as to
whether he was operating the vehicle.
      Appellant called his fiancée and a friend as witnesses at trial. Anna Watson
testified that Appellant called her from a bar asking for a ride home. She testified
that Appellant did not want to leave his vehicle at the bar so she drove his vehicle
and left her car at the bar. Appellant told Watson that he wanted to stop at
McDonald’s to get something to eat on the way home. After Appellant placed his
order at the drive-through window, he discovered that he did not have enough
money to purchase the food that he ordered.           An argument ensued between
Appellant and the cashier. As a result of the argument, Watson testified that she
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pulled the vehicle forward and exited the vehicle, leaving it there with Appellant.
Watson testified that she turned off the engine to the vehicle prior to leaving it in
the drive-through lane of McDonald’s. She initially took the keys with her, but
Appellant retrieved them from her prior to her departure with Appellant’s friend,
John Mayfield. She then left with Mayfield to retrieve her car at the bar.
      Appellant also testified on his own behalf. He stated that he never drove the
vehicle or put it in gear. However, Appellant admitted on cross-examination that
he did not remember what transpired that night.
                                Standard of Review
      We review a sufficiency of the evidence issue, regardless of whether it is
denominated as a legal or factual claim, under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the jury’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the fact-
finder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and defer to that determination. Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.


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                                     Analysis
      Sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997). Under a hypothetically correct jury charge, Appellant committed the
offense of driving while intoxicated if he (1) was intoxicated (2) while operating a
motor vehicle (3) in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West
Supp. 2012). Appellant restricts his evidentiary challenge solely to the element of
operating a motor vehicle. He contends that only a “modicum” of evidence was
presented to show that he was operating the vehicle. We disagree.
      The Texas 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);
Smith v. State, 401 S.W.3d 915, 919–20 (Tex. App.—Texarkana 2013, pet. ref’d).
However, the Texas Court of Criminal Appeals has concluded that a person
operates a vehicle when the totality of the circumstances demonstrates that the
person “took action to affect the functioning of his vehicle in a manner that would
enable the vehicle’s use.” Denton, 911 S.W.2d at 390; see also Dornbusch v.
State, 262 S.W.3d 432, 436 (Tex. App.—Fort Worth 2008, no pet.); Barton v.
State, 882 S.W.2d 456, 459 (Tex. App.—Dallas 1994, no pet.).            Under this
standard, “operating” a motor vehicle is interpreted very broadly. Dornbusch, 262
S.W.3d at 436; Strong v. State, 87 S.W.3d 206, 215 (Tex. App.—Dallas 2002, pet.
ref’d), abrogated on other grounds by Pfeiffer v. State, 363 S.W.3d 594 (Tex.
Crim. App. 2012). “[W]hile driving does involve operation, operation does not
necessarily involve driving.” Denton, 911 S.W.2d at 389. “Because ‘operating a
motor vehicle’ is defined so broadly, any action that is more than mere preparation
toward operating the vehicle would necessarily be an ‘action to affect the
functioning of [a] vehicle in a manner that would enable the vehicle’s use.’”
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Strong, 87 S.W.3d at 216 (quoting Barton, 882 S.W.2d at 459); see also Smith, 401
S.W.3d at 919–20; Dornbusch, 262 S.W.3d at 436.             The action need not be
successful in causing the vehicle to function for the person to be operating it.
Strong, 87 S.W.3d at 215.
       Texas courts have upheld DWI convictions in cases where a person is not
actually driving or moving the vehicle. See, e.g., Denton, 911 S.W.2d at 388
(defendant unable to accelerate because vehicle required time to warm up);
Dornbusch, 262 S.W.3d 432 (defendant asleep in driver’s seat of idling vehicle
parked in parking lot); see also Hearne v. State, 80 S.W.3d 677, 679 (Tex. App.—
Houston [1st Dist.] 2002, no pet.) (defendant asleep behind wheel of idling vehicle
in “Park” in roadway); Barton, 882 S.W.2d at 457 (same, but vehicle in “neutral”).
Thus, the case law is clear that operating a vehicle does not necessarily involve
driving or moving. See Denton, 911 S.W.2d at 389. One can be operating a
vehicle without actually causing the vehicle to function. Strong, 87 S.W.3d at 215.
      Officer Guitar testified that Appellant was sitting behind the steering wheel
of the vehicle with the engine running, the transmission in drive, and the brakes
engaged. Furthermore, Watson testified that she turned the engine off prior to
leaving Appellant in the drive-through. This testimony constitutes evidence that
Appellant “took action to affect the functioning of his vehicle in a manner that
would enable the vehicle’s use.” Denton, 911 S.W.2d at 390. Additionally, Appel-
lant admitted to operating the vehicle at the scene when being questioned by
Officer Guitar. The testimony that Watson drove Appellant to the McDonald’s and
left him there does not address the acts that Appellant undertook with regard to the
vehicle after she left. Additionally, the 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. Reviewing
all of the evidence in the light most favorable to the verdict, we conclude that any
                                          5
rational trier of fact could have found beyond a reasonable doubt that Appellant
was operating the vehicle. Appellant’s sole issue is overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     TERRY McCALL
                                                     JUSTICE


September 19, 2013
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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