Dornbusch v. State

• Court: Texas Court of Appeals
• Writing for the Court: Anne Gardner
• Citation: Dornbusch v. State, 262 S.W.3d 432 (Tex. App. 2008)
• Decision Date: 24 July 2008
• Docket Number: No. 2-07-297-CR.,2-07-297-CR.
• Parties: Randall DORNBUSCH, Appellant v. The STATE of Texas, State.

262 S.W.3d 432

Randall DORNBUSCH, Appellant v. The STATE of Texas, State.

No. 2-07-297-CR.

Court of Appeals of Texas, Fort Worth.

July 24, 2008.

Scott H. Palmer, PC, Scott H. Palmer, Dallas, for appellant.

Paul Johnson, Crim. Dist. Atty., John A. Stride, Chief, Appellate Div., Andrea R. Simmons, Michael Graves, Andrea Klement, Asst. Dist. Attys. for Denton County, Denton, for the State.

PANEL B: GARDNER, WALKER, and McCOY, JJ.

OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellant Randall Dornbusch appeals his conviction for misdemeanor driving while intoxicated. Appellant waived his right to a jury trial. The trial court found Appellant guilty and sentenced him to 120 days' confinement, probated the sentence for fifteen months, and assessed a $300.00 fine. In three points, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction, and he challenges the constitutionality of section 49.04 of the Texas Penal Code. See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003). We affirm.

II. Evidence

The parties presented the following evidence at trial. Highland Village police sergeant Sheri Morrison testified that she was checking on a business around 12:30 a.m. on the morning of December 2, 2006. Morrison saw Appellant's vehicle in the parking lot of a nearby Applebee's restaurant. Morrison testified that the vehicle caught her attention because its headlights were on, it was in the back of the parking lot, and it was "parked oddly." Morrison did not immediately investigate Appellant's vehicle because she was still engaged in checking on the nearby business. Approximately forty-five minutes later, Morrison again observed Appellant's vehicle in the same spot with the headlights still on. Morrison called for backup. Highland Village police officer Alicia Bautista Gonzales responded to the call.

Gonzales testified that when she arrived, Appellant's vehicle was in the back of the Applebee's parking lot, and its lights were on. Gonzales and Morrison approached Appellant's vehicle and noticed the engine was running. Morrison testified that she could tell the engine was running because it was cold outside and she could see the exhaust, but she could not see any indication that the brake lights were activated. Both Gonzales and Morrison testified that loud music was emanating from Appellant's vehicle.

Gonzales said that as she approached she could see Appellant "in the driver's seat hunched over the steering wheel." Both officers testified that it took multiple efforts of tapping on the window and speaking to Appellant for him to arouse from his hunched position. Gonzales noticed a smell of alcohol in the vehicle. Morrison testified that when she asked Appellant if he had been drinking, he initially denied that he had been, but later admitted to the officers that he had been drinking alcohol in Applebee's prior to getting into his vehicle. Gonzales testified that Appellant's eyes were bloodshot, his speech was slurred, and he appeared disoriented. She asked Appellant if he had "any medical problems." Appellant denied any medical problems. Gonzales admitted that she informed Appellant that she could be looking at his situation from either a medical or criminal aspect. Gonzales testified that when Appellant asked what criminal aspect she was investigating, Gonzales responded "public intoxication." Gonzales then asked Appellant to exit his vehicle.

Gonzales performed a number of field-sobriety tests including the horizontal gaze nystagmus test, the one-legged stand, and the walk and turn. She testified that she found all six clues when performing the horizontal gaze nystagmus test. According to Gonzales, Appellant was unable to complete the walk and turn or the one-legged stand, however, Gonzales testified that she did observe four clues during the walk and turn test. Gonzales said that she discontinued these tests before their completion because Appellant had fallen down and she feared he might hurt himself. The officers arrested Appellant.

Morrison could not recall who turned off Appellant's vehicle. But she testified that at some point in the encounter, she tried to remove the keys from the ignition but could not. Morrison said the officers asked Appellant how to remove the keys and he responded that the vehicle had to be in park in order for the keys to be removed from the ignition. Concerning whether Appellant's car was in park, the trial transcript contains this testimony by Morrison:

[Morrison]: ... And [Appellant] said as long as the vehicle is in park, that the key should come right out. So it was at that point that it was a—you know, it was an automatic. And at that point I pressed it in and pushed it forward and realized that the car had been in drive and that that's why the keys wouldn't come out. So as soon as I slipped it into park, the keys came on out.

[State]: Okay. So the car was actually in drive?

[Morrison]: Yes, ma'am.

[State]: Do you know what was preventing—I mean, from your observation, do you know what was preventing the car from actually rolling or driving?

[Morrison]: It was touching the curb in the parking place.

[State]: Okay. The wheels were up against the curb?

[Morrison]: Uh-huh.

[State]: Okay. But it was in drive?

[Morrison]: It was not parked, no. I couldn't tell you if it was slipped up on the edge of drive or edge of neutral, but it was not in park.

During cross-examination, Morrison further clarified her testimony concerning whether Appellant's vehicle was in park or drive:

[Appellant's attorney]: Now, it's your testimony to [the trial court] that the car was in drive the entire time?

[Morrison]: My testimony is that the car was not in park. I couldn't tell you. When I went to move the gear shift, I didn't look down and see, you know, if it was sitting on D, if it was sitting on N, or if it was sitting on P. Obviously I thought the car was in park, or I wouldn't have been messing with somebody that was, you know, coming out of it.

[Appellant's attorney]: Right.

[Morrison]: When I moved the gear shift, it moved. It physically moved in my hand to move forward.

....

[Morrison]: I mean, I couldn't tell you if it was [in drive] or was not. I knew it wasn't in park. I knew it moved. It moved a good amount in my hand.

Morrison testified that after placing Appellant under arrest, she searched his vehicle. She found a bottle of vodka that had not been opened. Morrison also found to-go containers, but testified she could not identify what restaurant they were from. She also found a cup containing a "purple or dark liquid" that smelled of alcohol.

Appellant testified to his version of the events. He testified that Friday, December 1, 2006, at roughly 10:30 p.m., he had gone to Applebee's to meet his girlfriend for dinner. His girlfriend never showed. He said that while waiting, he consumed "a few drinks" and ordered food. He eventually got the food to go and took it to his car. Appellant testified that at that point, sometime near midnight, he reasoned that he had "a couple too many" alcoholic beverages while waiting "and didn't feel that [he] could make the drive home." Appellant stated that his plan was "to sit there and I guess wait until I felt like I could drive home." He also testified that he had not consumed any alcohol prior to being at Applebee's.

Appellant further testified that he turned the car's engine on for warmth because it was cold outside. According to Appellant, his vehicle's lights were on because his vehicle has a feature where the lights come on automatically when it is dark outside. When questioned about what was required to remove the keys from the ignition, Appellant testified that the car had to be in park and a foot had to be on the brake. When questioned about the cup of dark liquid, Appellant testified, "I don't know what was in the cup. And if I did [consume any alcohol once inside the vehicle after leaving Applebee's], it was whatever was in the cup, if it was a beverage." When asked by the State whether he had the music loud in an effort to stay awake, he replied, "No." When asked why he didn't turn off the lights after sitting there for so long, Appellant replied "I just didn't think about it, to be honest with you."

The sole issue contested by Appellant at trial was whether he had "operated" the vehicle. In finding Appellant guilty, the trial court stated:

[I]f I take the State's assumption that he had put the car in gear, I could say, oh, yippee, the facts are easy, you know, and I can find him guilty and go home.... But based on my looking at the law and [Appellant] was behind the wheel, the car was running—I do not care about the lights, I don't care about the radio. The question, was the vehicle running. I'm finding his foot was not on the brake, his foot was not on the gas, and the car never moved from that spot. But based on what I've looked at under the case law, I'm finding [Appellant] guilty of the charge based on that fact scenario.

III. Discussion

A. Legal and Factual Sufficiency

In his first two points, Appellant complains that the evidence is legally and factually insufficient to prove beyond a reasonable doubt that he operated his vehicle.

1. Standards of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the prosecution in order to determine 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, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim. App.2007).

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim.App.2005). We then ask whether the evidence...