## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S

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

G RAYSON COUNTY H E R V E Y , J., delivered the opinion of the Court in w hich KE L L E R , P.J., R I C H A R D S O N , N E W E L L , K E E L , W A L K E R , and M C C L U R E , JJ., joined. Y E A R Y and S L A U G H T E R , JJ., concurred. O P I N I O N In March 2017, the Van Alsty ne Police Departm ent received a report at about 4:00

a.m . of a gray m inivan being driven erratically . The caller, who was driving in the sam e direction, f

ollowed the m inivan to a gas station, told police where it had been parked, relay ed the vehicle’s license plate inf orm ation, then hung up. The caller did not describe the driver. Police f

ound the m i nivan a f

ew m inutes later. The m otor was of f , andHarrell –2 Appellant was in the driver’s seat with the seatbelt buckled. There is no evidence about where the key s were, but Appellant adm itted that he had been driving. There were two passengers in the back. All three people in the m inivan were intoxicated. The court of appeals held that the evidence did not tend to show the corpus delictiof DW I because, absent Appellant’s extrajudicial conf ession, there was insuf

f icient evidence that he operated the m inivan. Because we conclude that the evidence is suf f icient to support Appellant’s conviction, we will reverse the judgm ent of the court of

appeals and rem and the cause f

or the lower court to address Appellant’s rem aining issue.

I. BACKGROUND a. Facts Wh en the police received the early m orning call about a reckless driver, who was “all over the road,” they

were also given the m inivan’s license plate inf orm ation and told the location of

that m inivan once it pulled into a gas station of f the highway . The caller (and another person in the vehicle) said that the gray m i nivan alm ost hit them

“a couple of tim es.” They

did not identif

y Appellant as the driver, and they did not testif

y . Of f icer Brandon Blair was dispatched. He testif i ed that he arrived at the scene at 4:11 a.m ., approached the parked m inivan, and saw Appellant in the driver’s seat with his seatbelt f astened. He also saw two passengers in the backseat. Of f icer Blair knocked on the driver’s side window and could imm ediately sm ell the odor of

alcohol when Appellant rolled down the window. He also noticed that Appellant had bloodshot ey esHarrell –3 and that his speech was slurred. Appellant told Of f icer Blair that he and the passengers had been at Choctaw in Oklahom a since 7:30 p.m . the evening bef ore and that they

had been drinking. At f

irst, Appellant said that he had a “f e wbeers” but then clarif

ied that he had “about three or f

our.” He also adm itted that he had been driving. Of f icer Blair adm inistered three standardized f ield sobriety

tests (SFSTs), all of

which indicated that Appellant was intoxicated, and Appellant was arrested. Appellant ref used to provide a blood sam

ple. Both passengers adm itted that they had been drinking when asked. The f irst passenger’s response to the question was, “that’s why we’re back here.” He also told Of f icer Blair they

were f rom Arlington, that he owned the m i nivan, 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 perf orm only the horizontal gaze ny stagm

us (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. Of

f icer Blair arrested them

f or public intoxication. He told them that he could not leave them

at the vehicle af

ter he lef t with Appellant because they would be a danger to them selves or the public. The passengers did not testif y . About three hours af

ter m aking contact, Of

f icer Blair obtained a search warrant and a sam ple of Appellant’s blood. His blood-alcohol concentration was .095.

b. Procedural HistoryHarrell –4 Appellant was charged by inf orm ation with Class A m i sdem eanor DW I. 1 A jury convicted him , and the judge sentenced him to 365 day s’ conf

inem ent, probated f

or twenty

- f our m onths, and f

i ned him $1,000.00. Appellant appealed, arguing that the evidence was legally

insuf f icient. The court of

appeals agreed and rendered an acquittal. Harrell v. State , No. 05-18-01133-CR, 2019 W L 3955774, at *3 (Tex. App.—Dallas Aug. 22, 2019) (m em . op., not designated f or publication). The State then f iled a petition f or discretionary review in this Court, arguing that the court of a p peals erroneously

m erged the c orpus delictidoctrine and the Jackson legal suf f iciency r eview. III. EVIDENTIARY SUFFICIENCY Under the Due Process Clause, a crim inal conviction m ust be based on legally suf f i cient evidence. Murray v. State , 457 S.W .3d 446, 448 (Tex. Crim . App. 2015). The evidence is legally

suf f icient if a rational jury

could f i nd each essential elem ent of the of f ense bey ond a reasonable doubt. Id. (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). W hen reviewing the suf f iciency of the evidence, appellate courts consider all the adm itted evidence and view it in the light m ost f avorable to the verdict. Id. “This f am iliar standard gives f

ull play to the responsibility o f

the trier of

f act f airly to resolve conf

licts in the testim ony , to weigh the evidence, and to draw reasonable inf erences f rom basic f acts to ultim ate f

acts.” Jackson , 443 U.S. at 319.

1 T E X

. P E

N A L C O D E §§ 49.04(b), 49.09(a). DW Iis a Class B misdemeanor unless the State alleg es a prior conviction under Section 49.09 of the Tex as Penal Code. Id. § 49.04(b). Here, the State alleg ed a Class A misdemeanor because it alleg ed that Appellant had been previously convicted of DW Ionce before. Id. § 49.09(a).Harrell –5 In cases involving extrajudicial conf essions when “bey ond a reasonable doubt” is the burden, not only

m ust the evidence be legally suf f i cient under Jackson but also it m ust tend to show the corpus delictiof the of f ense. Miller v. State , 457 S.W

. 3 d 919, 924 (Tex. Crim . App. 2015) (citing Hacker v. State , 389 S.W .3d 860, 865 (Tex. Crim . App. 2013)). To determ ine if

the corpus delictiof

an of f ense is shown, an appellate court m ust

exam ine all the evidence except the def endant’s extrajudicial conf ession to see if

it shows that “the ‘essential nature’ of the charged crim e was comm itted by som eone.” Id. (citing Hacker , 457 S.W .3d at 866 (em phasis 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 conf essions to im aginary

crim es. I d. (quoting Carrizales v. State , 414 S.W .3d 737, 740 (Tex. Crim . App. 2013)). The analy sis f ocuses on only

whether som eone comm i tted the crim e, but it is not as rigorous as the Jackson legal suf f iciency review. Threet v. State , 250 S.W .2d 200, 200 (1952). The corpus delictiof DW I is that som eone operated a m otor vehicle in a public place while intoxicated. Id. IV. ANALYSIS The court of

appeals began its analy sis by separately d iscussing both the corpus delicti d octrine and Jackson legal suf f i ciency r eview, 2 but then it seem s to have blended aspects of the doctrines when apply ing them . For exam ple, in rejecting the State’s corpus delicti ar gum ent, the court of appeals said that there was no evidence except Appellant’s

2 Harrell , 2019 W L3955774, at *2.Harrell –6 extrajudicial conf

ession “f rom which a jury

could rationally

conclude that [ Appellant] was operating the vehicle in a public place while intoxicated.” Harrell , 2019 W L 3955774, at *3. In a corpus delictianaly sis, the extrajudicial conf ession of a def e ndant is not considered, and identity need not be proven. Id. (citing H acker , 457 S.W

. 3d at 866 (em phasis added); Salazar , 86 S.W .3d at 645). But under Jackson , all the adm itted 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 satisf y the corpus delictidoctrine, and he directs us to T hreet v. State , 250 S.W

. 2d at 200 and Arocha v. State , No. 02-14-00042-CR, 2014 W L 6997405, at *2 (Tex. App.—Fort W orth Dec. 11, 2014, no pet.) (m e m . op., not designated f or publication). Appellant, however, m ischaracterizes those cases. This Court in Threet and the court of appeals in Arocha em

phasized that identity

is not part of

the corpus delicti of

DW I. Threet , 250 S.W .2d at 200; Arocha , 2014 W L 6997405, at *2, n.4. The evidence in this case is legally suf f icient both under Jackson and to satisf y the corpus delictidoctrine. The evidence is suf f icient under Jackson because a rational jury could f i nd each essential elem ent of the of f ense bey o nd a reasonable doubt when considering all the adm itted evidence, including Appellant’s extrajudicial conf ession. Not only d i d Appellant conf

e ss that he had been driving the sam e m inivan identif ied by the 911 caller on the highway but also Appellant was f ound in the driver’s seat with the seatbelt buckled, and the f irst passenger told Of

f icer Blair that Appellant was “supposedHarrell –7 to be the sober one.” There is also am ple evidence that Appellant was intoxicated. In addition to the f

ailed SFSTs, he had bloodshot ey es and slurred speech. Also, testing of the blood sam

ple taken three hours later showed Appellant’s BAC was over .09. The evidence is also suf

f icient to show the corpus delictiof DW I. Absent Appellant’s conf

ession, the evidence still tends to show that Appellant and the passengers were traveling together in the sam e m inivan identif ied by the 911 caller and that Appellant was operating it. As we have noted, the m inivan had the sam e license plate as reported by

the 911 caller and was f

ound where the caller said the driver parked it. W hen Of f icer Blair approached the m i nivan, he saw Appellant in the driver’s seat with the seatbelt buckled, and the f irst passenger told Of

f icer Blair when asked about Appellant being intoxicated that Appellant was “supposed to be the sober one.” The evidence tends to show that som e one in the m inivan was operating it on the highway when 911 was called. (W hile the evidence indicates that Appellant was driving, we stress that proof of identity is not required in a corpus delicti analy sis.) The next question is whether whoever operated the m inivan in a public place was intoxicated within the m eaning of the DW I statute. W e f

ind that the answer is y es. All the people in the m inivan were intoxicated. Appellant was arrested f or DW I because the of f icer believed that Appellant had lost norm al control of his m ental or phy sical f

aculties 3 and was operating a m o tor vehicle in a public place. T E X . P E N A L C O D E § 49.01(2)(A)

3 Police later obtained a blood sample from Appellant three hours later via a search warrant, and his B AC was over still over .09.Harrell –8 (one way a person can be intoxicated under the DW I statute is if they do not have “the

norm al use of

[ their] m ental or phy sical f aculties by

reason of the introduction of alcohol . . .”). If

Appellant had been driving, he was guilty of DW I. The passengers were arrested f or public intoxication because they were a danger to them selves or others due to their intoxication. Id. § 49.02(a) (“A person com m its an of f ense if the person appears in a public place while intoxicated to the degree that the person m ay endanger the person or another.”). If

they had been driving, they

also would have been guilty of DW I. V. CONCLUSION The corpus delicti rule has been satisf ied and the evidence is legally s uf f i cient because it tends to show that som eone operated a m otor vehicle in a public place while intoxicated. W e reverse the judgm ent of the court of

appeals and rem and the cause f or it to address Appellant’s rem aining issue. Delivered: April 21, 2021 Publish