IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0985-19

ROBERT EARL HARRELL JR., Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

GRAYSON COUNTY

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J.,

RICHARDSON, NEWELL, KEEL, WALKER, and MCCLURE, JJ., joined. YEARY and

SLAUGHTER, JJ., concurred.

O P I N I O N

In March 2017, the Van Alstyne Police Department received a report at about 4:00

a.m. of a gray minivan being driven erratically. The caller, who was driving in the same

direction, followed the minivan to a gas station, told police where it had been parked,

relayed the vehicle’s license plate information, then hung up. The caller did not describe

the driver. Police found the minivan a few minutes later. The motor was off, and
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Appellant was in the driver’s seat with the seatbelt buckled. There is no evidence about

where the keys were, but Appellant admitted that he had been driving. There were two

passengers in the back. All three people in the minivan were intoxicated. The court of

appeals held that the evidence did not tend to show the corpus delicti of DWI because,

absent Appellant’s extrajudicial confession, there was insufficient evidence that he

operated the minivan. Because we conclude that the evidence is sufficient to support

Appellant’s conviction, we will reverse the judgment of the court of appeals and remand

the cause for the lower court to address Appellant’s remaining issue.

I. BACKGROUND

a. Facts

When the police received the early morning call about a reckless driver, who was

“all over the road,” they were also given the minivan’s license plate information and told

the location of that minivan once it pulled into a gas station off the highway. The caller

(and another person in the vehicle) said that the gray minivan almost hit them “a couple

of times.” They did not identify Appellant as the driver, and they did not testify.

Officer Brandon Blair was dispatched. He testified that he arrived at the scene at

4:11 a.m., approached the parked minivan, and saw Appellant in the driver’s seat with his

seatbelt fastened. He also saw two passengers in the backseat. Officer Blair knocked on

the driver’s side window and could immediately smell the odor of alcohol when

Appellant rolled down the window. He also noticed that Appellant had bloodshot eyes
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and that his speech was slurred. Appellant told Officer Blair that he and the passengers

had been at Choctaw in Oklahoma since 7:30 p.m. the evening before and that they had

been drinking. At first, Appellant said that he had a “few beers” but then clarified that he

had “about three or four.” He also admitted that he had been driving. Officer Blair

administered three standardized field sobriety tests (SFSTs), all of which indicated that

Appellant was intoxicated, and Appellant was arrested. Appellant refused to provide a

blood sample.

Both passengers admitted that they had been drinking when asked. The first

passenger’s response to the question was, “that’s why we’re back here.” He also told

Officer Blair they were from Arlington, that he owned the minivan, and that Appellant

was “supposed to be the sober one.” The passenger took three SFSTs, all of which

indicated that he was intoxicated. The second passenger agreed to perform only the

horizontal gaze nystagmus (HGN) test, which indicated that he was intoxicated, because

he said that he had a previous leg injury. The passengers were never asked who had been

driving. Officer Blair arrested them for public intoxication. He told them that he could not

leave them at the vehicle after he left with Appellant because they would be a danger to

themselves or the public. The passengers did not testify.

About three hours after making contact, Officer Blair obtained a search warrant

and a sample of Appellant’s blood. His blood-alcohol concentration was .095.

b. Procedural History
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Appellant was charged by information with Class A misdemeanor DWI.1 A jury

convicted him, and the judge sentenced him to 365 days’ confinement, probated for

twenty-four months, and fined him $1,000.00. Appellant appealed, arguing that the

evidence was legally insufficient. The court of appeals agreed and rendered an acquittal.

Harrell v. State, No. 05-18-01133-CR, 2019 WL 3955774, at *3 (Tex. App.—Dallas

Aug. 22, 2019) (mem. op., not designated for publication). The State then filed a petition

for discretionary review in this Court, arguing that the court of appeals erroneously

merged the corpus delicti doctrine and the Jackson legal sufficiency review.

III. EVIDENTIARY SUFFICIENCY

Under the Due Process Clause, a criminal conviction must be based on legally

sufficient evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). The

evidence is legally sufficient if a rational jury could find each essential element of the

offense beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). When reviewing the sufficiency of the evidence, appellate courts consider all the

admitted evidence and view it in the light most favorable to the verdict. Id. “This familiar

standard gives full play to the responsibility of the trier of fact fairly 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.

1TEX. PENAL CODE §§ 49.04(b), 49.09(a). DWI is a Class B misdemeanor unless the State

alleges a prior conviction under Section 49.09 of the Texas Penal Code. Id. § 49.04(b). Here, the

State alleged a Class A misdemeanor because it alleged that Appellant had been previously

convicted of DWI once before. Id. § 49.09(a).
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In cases involving extrajudicial confessions when “beyond a reasonable doubt” is

the burden, not only must the evidence be legally sufficient under Jackson but also it must

tend to show the corpus delicti of the offense. Miller v. State, 457 S.W.3d 919, 924 (Tex.

Crim. App. 2015) (citing Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013)).

To determine if the corpus delicti of an offense is shown, an appellate court must

examine all the evidence except the defendant’s extrajudicial confession to see if it shows

that “the ‘essential nature’ of the charged crime was committed by someone.” Id. (citing

Hacker, 457 S.W.3d at 866 (emphasis added); Salazar v. State, 86 S.W.3d 640, 645 (Tex.

Crim. App. 2002)). The purpose of the corpus delicti rule is to prevent convictions based

on confessions to imaginary crimes. Id. (quoting Carrizales v. State, 414 S.W.3d 737, 740

(Tex. Crim. App. 2013)). The analysis focuses on only whether someone committed the

crime, but it is not as rigorous as the Jackson legal sufficiency review. Threet v. State,

250 S.W.2d 200, 200 (1952). The corpus delicti of DWI is that someone operated a motor

vehicle in a public place while intoxicated. Id.

IV. ANALYSIS

The court of appeals began its analysis by separately discussing both the corpus

delicti doctrine and Jackson legal sufficiency review,2 but then it seems to have blended

aspects of the doctrines when applying them. For example, in rejecting the State’s corpus

delicti argument, the court of appeals said that there was no evidence except Appellant’s

2Harrell, 2019 WL 3955774, at *2.
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extrajudicial confession “from which a jury could rationally conclude that [Appellant]

was operating the vehicle in a public place while intoxicated.” Harrell, 2019 WL

3955774, at *3. In a corpus delicti analysis, the extrajudicial confession of a defendant is

not considered, and identity need not be proven. Id. (citing Hacker, 457 S.W.3d at 866

(emphasis added); Salazar, 86 S.W.3d at 645). But under Jackson, all the admitted

evidence is considered, and proof of identity is required. Id.

Appellant argues that courts, including ours, have in the past required proof of

identity to satisfy the corpus delicti doctrine, and he directs us to Threet v. State, 250

S.W.2d at 200 and Arocha v. State, No. 02-14-00042-CR, 2014 WL 6997405, at *2 (Tex.

App.—Fort Worth Dec. 11, 2014, no pet.) (mem. op., not designated for publication).

Appellant, however, mischaracterizes those cases. This Court in Threet and the court of

appeals in Arocha emphasized that identity is not part of the corpus delicti of DWI.

Threet, 250 S.W.2d at 200; Arocha, 2014 WL 6997405, at *2, n.4.

The evidence in this case is legally sufficient both under Jackson and to satisfy the

corpus delicti doctrine. The evidence is sufficient under Jackson because a rational jury

could find each essential element of the offense beyond a reasonable doubt when

considering all the admitted evidence, including Appellant’s extrajudicial confession. Not

only did Appellant confess that he had been driving the same minivan identified by the

911 caller on the highway but also Appellant was found in the driver’s seat with the

seatbelt buckled, and the first passenger told Officer Blair that Appellant was “supposed
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to be the sober one.” There is also ample evidence that Appellant was intoxicated. In

addition to the failed SFSTs, he had bloodshot eyes and slurred speech. Also, testing of

the blood sample taken three hours later showed Appellant’s BAC was over .09.

The evidence is also sufficient to show the corpus delicti of DWI. Absent

Appellant’s confession, the evidence still tends to show that Appellant and the passengers

were traveling together in the same minivan identified by the 911 caller and that

Appellant was operating it. As we have noted, the minivan had the same license plate as

reported by the 911 caller and was found where the caller said the driver parked it. When

Officer Blair approached the minivan, he saw Appellant in the driver’s seat with the

seatbelt buckled, and the first passenger told Officer Blair when asked about Appellant

being intoxicated that Appellant was “supposed to be the sober one.” The evidence tends

to show that someone in the minivan was operating it on the highway when 911 was

called. (While the evidence indicates that Appellant was driving, we stress that proof of

identity is not required in a corpus delicti analysis.)

The next question is whether whoever operated the minivan in a public place was

intoxicated within the meaning of the DWI statute. We find that the answer is yes. All the

people in the minivan were intoxicated. Appellant was arrested for DWI because the

officer believed that Appellant had lost normal control of his mental or physical faculties3

and was operating a motor vehicle in a public place. TEX. PENAL CODE § 49.01(2)(A)

3Police later obtained a blood sample from Appellant three hours later via a search

warrant, and his BAC was over still over .09.
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(one way a person can be intoxicated under the DWI statute is if they do not have “the

normal use of [their] mental or physical faculties by reason of the introduction of

alcohol . . .”). If Appellant had been driving, he was guilty of DWI. The passengers were

arrested for public intoxication because they were a danger to themselves or others due to

their intoxication. Id. § 49.02(a) (“A person commits an offense if the person appears in a

public place while intoxicated to the degree that the person may endanger the person or

another.”). If they had been driving, they also would have been guilty of DWI.

V. CONCLUSION

The corpus delicti rule has been satisfied and the evidence is legally sufficient

because it tends to show that someone operated a motor vehicle in a public place while

intoxicated. We reverse the judgment of the court of appeals and remand the cause for it

to address Appellant’s remaining issue. 

Delivered: April 21, 2021

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