NO. 07-06-0240-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C DECEMBER 11 , 2006

______________________________ THERESA A. SMITH, APPELL ANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 3 64TH DI STRICT COURT OF LU BBOCK COU NTY; NO. 2005-409498; H ONORABLE BRAD LEY S. UND ERWOOD, JUDGE

_______________________________ Before QUINN, C.J., and HANCOCK and PIRT LE, JJ.
MEMORA NDUM OPIN ION
Followi ng a plea of not guilty Appellant, Theresa A. Smith, was convicted by a jury of driving while intoxicated, a felony, and senten ced to four years confinement. By a single point of error, she contends the trial cour t erred by

failing to grant a d irected v erdict w hen1 Althou gh Appell ant cha lleng es the trial court ’s den ial of h er mo tion for directed

verdict, she also arg ues the evidence i s both legal ly and factual ly insuffici entto support her conviction. Thus, in the interest of justice, we will apply both standards in our analysis. 2 the evidence was leg ally and factu ally ins ufficient to establi sh she operated the vehicl e. 1 We affirm. Background Appellant

was arrested after a witness observed her vehicle hit an obstruc tion in a parking lot. The wi tness, Barry Malone, testi fied that on the nig ht of August 19, 2004 , he and his wi fe were approac hing an acces s road in South Lubbock when t hey noticed a vehicle in an adjacent

parking l ot drivi ng in their direction. As they co ntinued to watch, the vehicle drove into a group of tre es and came to an abrupt stop. Malone immediately called 911 and dro ve bac k to the parki ng lot to ch eck on the dri ver. As he approached, he real ized that the vehi cle had struc k a tree and saw that the driver’s side doo r wa s obstructed by foliag e. He peered into the passenger side wi ndow and obser ved Appellant in the driver’s seat with her head resting on her arm s on the steering wheel. When he yelled to get

her attention, she leaned back an d replied “I ’m okay.” Malone testi fied that Appellant

did not appear to be injured but seemed “disor iented” and “di sheveled.”He then returned to hi s vehicl e and waited for the police toarriv e.
Lubbock Police Officer Brady Lew is testified hearriv ed on the scene and ob served
a silver Toyota Four Runner parked “in-between quite a few trees.”Unable to access the3

driver’s side door, he opened the passenger side door and found A ppellant asleep in the driver’s seat. When Lewis asked her w hether she had been invol ved in an ac cident, she replied “no” and told him she w asn’t driv ing. Lew is immediately detected strong odor

of an alcoholic beverage on her breath and noticed that her eyes were bloodshot and her speech
was slurred. Appellant admitted that she had drank six beer s. Lewis then ad min istered three field sobriety

tests and, based on his observations, arre sted Appellant for drivin g while intoxic ated. Malone an d Lewi s both testified fo r the State at Appellant’s jury trial. Appellant

did not testi fy. At the conc lusion of the Sta te’s evi dence, Appellant moved for directed verdict claiming the State fail ed t o prove she was operati ng the vehi cle. The motion was de nied, and she was subsequentl y convi cted of the offense. By her sole poi nt of

error, Appel lantcontends the tr ial court s hould have g ranted her directed verdict

because the only

evidence r

egarding whether sheoperated the vehicle
was the fact that she was f ound asleep behind t he wheel w hen the vehic le was at a complete stop. She contends this evidence i s legall y and factuall y insufficient to support the jury’ s verdic

t. We disagree. Law and Analysis
The standard of rev iew w ith respect to a trial court’s failure to grant a directed verdict is the same as that app lied in rev iewing the sufficiency of the evidenc e. Williams v. State , 937 S.W.2d 479, 482 (Tex.Crim.App. 1996); Madden v. State , 799 S.W.2d 68 3, 686 (Tex.Cri m.App. 1990). When bo th the legal and factual suff iciency of the evidence are4

challenged, we must first determine whether the evidence is legal ly sufficient to support the verdict. Clewis v. State , 922 S.W.2d 126, 133 (Tex.Cri m.App. 1996). It i s a fundamental rule of criminal law that one cannot be co nvicted of a crime unless itis prov ed beyond a reasonable doubt that the defendant committed each el ement of the alleged offense. U.S. Const. amend. XIV; Tex . Code Crim. Proc. Ann. ar t. 38.03 (Vernon Supp. 2006); Tex. Pen. Code Ann. § 2.01 (Ver non 2003). When cond ucti ng a le gal su ff icien cy revie w we review the evidence i n the light most favor able to the verdict to determine w hether any r ational trier of fact could h ave found th e essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318 , 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); McKinney v. State , No. PD-594- 05, PD-595-05, PD-596-05, 2006 WL 3302834, at *1 (Tex.Crim.App. Nov. 15, 2006). W e conduct this analysis by co nsid ering all the evidence–w hether

proper or improper–so that we can make an assessment from th e jury's perspectiv e. Miles v . State , 918 S.W.2d 511, 512 (Tex.Cri m.App. 1996). The standard of review is the same for both circumsta ntial and direct evidence. King v. State , 895 S.W.2d 701, 703 ( Tex. Crim. App. 1995 ). W e mu st up hold the ve rdict unl ess it is irrational or unsupported by more t ha n a mere modicum of ev idence. Moreno v. State , 755 S.W.2d 866, 867 (Tex.C rim.App. 1988).
When an appellant

challenges the factual suf ficiency of the evidence, we review all the evidence without t he prism of "in the light most favorable to th e prosecution" and set aside the verdi ct only i f it is so cont rary to the overw helming weight of the ev idence as to be clearly

wrong and unjust. Johnson v. State , 23 S.W.3d 1, 9 ( Te x . C r i m . A p p . 2 0 0 0 )

. We5

must determine, after considering all the ev idence in a neutral li ght, whet her the jury was rationally justified in finding guilt bey ond a reasonable doubt

. Zuniga v . State , 144 S.W.3d 477, 484 (Tex.Cri m.App. 2004 ), overruled i n part, Watson v. State , No. PD-469- 05, 2006 WL 2956272, at *10 (Tex.Cri m.App. Oct. 18, 2006). We cannot rever se a convi ction and order a new tri al unless w

e find some objective basis in the record th at demonstrates th at the great weight

and preponderance of the evidence contradicts th e jury’ s verdic t. Watson , 2 0 0 6 WL 2956272, at

*10. Further more, we can not conclude that appellant’s conviction is “clearly

wrong”or

“manifestly

unjust” si mply because, based on the eviden ce presented,
we disagree w ith the jury ’s verdi ct. Id. ; Cain v. S tate , 958 S.W.2d 404, 407 (Tex.Crim. App. 1997).
In order to obtai n a convic tion for driv ing whi le intoxi cated, the State must prove a defendant 1) was i ntoxi cate d 2) whi le op erat ing a m otor vehic le 3) i n a pu blic p lace . Tex. Pen. Code Ann. § 49.04( a) (Vernon 2003). Here, Appell ant does not contes t that she was intoxicated and in a public place. Instead, she only challenges the State’s evidence pertaining to whether

she operated th e vehicle . Although t he term "operate" i s not statutorily defined, operation o f a motor vehic le is found w hen the totality of the cir cums tanc es de mons tra tes that the d efend ant t

ook a cti on toaffec

t thefunc

tion ing of a vehicle in a manner that would enable the vehicle's use. Denton v. State , 911 S.W.2d 388, 390 (Tex.Cri m.App. 1995); Barton v. S tate , 882 S.W.2d 456, 459 (Tex.App.-- Dallas 1994, no pet.).6

The State’s evidence regarding Appellant’s operation of the vehicle consisted solely of the testimony

of eyewi tnesses Barr

y Malone and Officer Brady Lewis. Malone testifie d thathe observed the vehicl e moving t hrough the par king lot a nd saw it strike a tr ee; however, on cross-examination, he admitted he could not see who was in the vehicle until it was stoppe d and he was able to look thro ugh the passenger side wi ndow. He es timated thatit took les s than forty-five secondsfrom the time he firs t saw the vehicl e until he was able to turn ar

ound a nd check on the dr iver. M alone did concede that during this time, Appellant’s vehicle “wa s out o f [his] view at somepoint.” Officer Lewis al so admitted that he did not see appel lant operate the vehicle; however , he did state t hat when he arrived, she was the onl y person i n the vehicl e and she was“passed out asleep” on thesteering wheel. Both men test ified that t hey wer e unable to acces s the driv er’s side d oor due to foliage and trees. M alone concluded t hatitwould have been “ver y difficult” for someone to ha ve exi ted the vehic le on the driv er’s side. The State maintains this circ um stantia l evidence is sufficient to show Appellant

was the onl y person w ho could have operated the vehicle.
On the other hand, App ellant clai ms the evidence “raises the hypot hesis th at another person could h ave operated t he veh icle.” A ppellant maintains tha t, while witnessi ng the incident, Malone and his wife made “present sense statements”suggesti ng thatthere was more t han one person in the vehicl e. In addition, Appellant dir ects us to her statement

to Lewis th at she wasn ’t driving. She arg ues the evidence does not ref lect whether the vehicle was running, whether it was in gear, whether the vehicle’s tailligh ts7

were on, or the location of the vehi cle’s key s. She also c ites the fact that she had no visible seat belt or facial injuri es as proof that sh e was not oper ating th e vehicle when it struck the tree . Citing Kelley v . State , 163 Tex.Cr im. 53 1, 294 S.W.2d 404 (1956), and Miller v. State , No. 08-03-00268-C R, 2005 WL 427504 (Tex.App.–El Paso Feb. 17, 2005,
no pe t.) (not desi gnated for publi cation), Appel lant contends the State failed to d isprov e the hypothesisthat the vehi cle could have been driv en by another person and f ailed to prove that s he operated the vehicle. We disagree.
Neither Kelley

nor Miller

is factuall y anal ogous to lend support to Appe llant’s position. In Kelley, the defend ant w as fo und i ntox ica ted i n thepass eng er s eat o f a wrecked automobile w ith the driver’s door open

. Kelley, 294 S. W.2d at 404. W hen questioned, the defendant replie d, “they ar e gone” or “ they are not here anymore. ” Id. The Court of Criminal Appeals held that the State di d not disprove the hypothesi s that another person could have driven the vehicle an d found the evide nce in sufficient to suppor t a convicti on for drivi ng while i ntoxicated. Id. at 404-05. Mor eover, the State is not r equired to exclude every other reasonable hy pothesis other than the guil t of the defendant. Geesa
v. State , 820 S.W.2d 154, 156 (Tex.Cri m.App. 1991), overruled on other grounds , Paulson
v. State , 28 S.W .3d 570 (Tex.Crim.App. 200 0). In Mil ler , the El Paso court found the evid ence to be legally and factually

sufficient wher

e the defendant was found asleep behind the wheel o f his vehicl e that was p arked in the middle of the road with the engine running. Miller

, 2005 WL 427504, at *5.8

In Appellant’s case, there is no evidence in the record w hich sugg ests anyone other than Appellant op erat ed the vehic le. In fact, the ev idence indicates that it w ould be unli kely, if notillogi cal, that some unk nown driver would switch p laces wi th Appellant, exit through the passenger side door, and flee the scene in t he forty-fiv e seconds it took for Malone to r eturn to the scene of the collision. The jury, as trier of fact, ma y ch oose t o beli eve all, some, or

none of any w itness's te stimony

. Sharp v. State , 707 S.W.2d 611, 614 (Tex.Cri m.A pp. 1 986). A jury's decision is not manifestly unjust merely because it resolved conflicting views of evidence i n favor of the State. Cain , 95 8 S.W.2d at 410. Viewing the totality

of the evidence in th e ligh t mos t fa vorab le to the p rose cuti on, we conclude a rational trier of fact could ha ve found beyond a reasonab le doubt that Appell ant
was the sole operator o f th e ve hicle. Therefore, the trial court did not er r in denyi ng Appellant’s motion for direc ted verdict . We further conclude the evidence i s not so w eak
or so against the overwhelming weight of the evidence as to render the jury's verdictto be clearly wrong and unjust. Appel lant's point of error is o verruled

. Accordingl y, the tri al court’s judgment is a ffirmed.

Patrick A. Pirtle Justice Do not publish

.