Kirsch v. State

• Decision Date: 25 January 2012
• Docket Number: No. PD–0245–11.,PD–0245–11.
• Citation: 357 S.W.3d 645
• Parties: Scott Alan KIRSCH, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

357 S.W.3d 645

Scott Alan KIRSCH, Appellant,
v.
The STATE of Texas.

No. PD–0245–11.

Court of Criminal Appeals of Texas.

Jan. 25, 2012.

[357 S.W.3d 647]

Ebb B. Mobley, Longview, for Appellant.

Coke Solomon, Crim. Dist. Atty, Marshall, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION ALCALA, J., delivered the opinion for a unanimous Court.

Appellant, Scott Alan Kirsch, was convicted of his second driving while intoxicated (DWI) offense in violation of Texas Penal Code § 49.04(a). ¹ Tex. Pen.Code § 49.04(a). In his petition for discretionary review, appellant argues, in two issues, that the court of appeals erred by affirming the trial court's charge to the jury, which included a definition of the statutorily undefined term “operate” as it is used in the DWI statute. We conclude that the trial court erred in defining that term and reverse the judgment of the court of appeals.

I. Background

On the night of the offense, Julie Richards was driving home from work on State Highway Loop 281 in Longview, Texas, when she encountered appellant straddling a motorcycle with his hands on the handle bars stopped in the middle of the road at an intersection. Ms. Richards testified that, after a few moments, he began slowly tilting to one side and “just leaned over until he fell completely on the ground, one leg under the motorcycle, one over it still straddling it.” She pulled up beside him and asked if he needed assistance, which he declined. But as she drove away, she saw in her rearview mirror that he made no attempt to get up. She called the Harrison County Sheriff's Department and reported the incident.

Deputy Kevin Johnson testified that he promptly responded to the call. When he arrived, he observed appellant sitting on top of his motorcycle attempting to “kick-start” it, which appellant ceased when Deputy Johnson approached him. Deputy

[357 S.W.3d 648]

Johnson testified that appellant's speech was slurred and that he had difficulty following directions and balancing. Deputy Bill Turner soon arrived and conducted an “intoxication investigation.” Based on that investigation, Deputy Turner concluded that appellant was intoxicated and placed him under arrest.

Appellant was charged by information with DWI. At trial, the trial court, in its written charge to the jury, defined “operate” as “to exert personal effort to cause the vehicle to function.” Defense counsel objected to this instruction, arguing that

on the first page, the last paragraph should be eliminated from [the charge], as to the words, “The term operate.” There is no definition of the word “operate” in the Penal Code and these are made up by the prosecutor himself, by his own admission, and put in here.

The trial court explained that the prosecutor had submitted “a case with that language in there.” ² Defense counsel responded that the case law to which the State referred did not pertain to jury instructions. Overruling the objection, the trial court submitted the charge to the jury. The jury convicted appellant and assessed his punishment.

On direct appeal, appellant complained that the trial court erred by defining “operate” in the jury charge, arguing that it is “a common term” and that provision of a definition constituted a comment on the weight of the evidence. ³ Kirsch v. State, No. 06–10–00071–CR, 2010 WL 4354033, at *1, 2010 Tex.App. LEXIS 8801, at *1 (Tex.App.-Texarkana Nov. 4, 2010) (mem. op., not designated for publication). The court of appeals observed that the definition the trial court provided in its charge to the jury “is conscripted” from this Court's opinion in Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App.1995). Id. at *4, 2010 Tex.App. LEXIS 8801, at *11. In that case, we defined “operate” as taking “action to affect the function of [a] vehicle in a manner that would enable the vehicle's use” in order to assess the sufficiency of the evidence to support that element. Denton, 911 S.W.2d at 390. Citing Denton, the court of appeals held, “Because the definition of operate, while not necessary, was not without reference to guiding rules or principles, we do not find that an abuse of discretion occurred.” 2010 WL 4354033, at *4, 2010 Tex.App. LEXIS 8801, at *11. It also declined to address appellant's improper-comment complaint as unpreserved because it concluded that trial counsel did not lodge an objection on that ground and that appellate counsel's brief was “inadequate with respect to this potential point of error.” Id. at *4, 2010 Tex.App. LEXIS 8801, at *12–13.

We granted review in this case to determine whether the court of appeals erred in holding that the trial court acted within its discretion in instructing the jury on a definition of the term “operate” as used in the DWI statute.

II. Analysis

In two grounds for review, appellant inquires whether, in the guilt-innocence charge in a DWI case, it is necessary to define the term “operate” and asks if the court of appeals erred in approving a definition of that term. He contends that the definition was an improper comment on the weight of the evidence.

A. Preservation of Error

[357 S.W.3d 649]

The court of appeals concluded that, although “the trial court was not obligated to give a definition of ‘operate,’ it did not exceed its ‘broad discretion’ by providing the correct definition, because ‘the definition of “operate” was directly at issue.’ ” Kirsch, 2010 WL 4354033, at *4, 2010 Tex.App. LEXIS 8801, at *11 (quoting Denton, 911 S.W.2d at 389). But it declined to consider whether providing the definition constituted an improper comment on the weight of the evidence because, it concluded, appellant did not properly preserve the issue at trial. Id. at *4–5, 2010 Tex.App. LEXIS 8801, at *12–13. However, all alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003). Appellate review of purported error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994); Middleton, 125 S.W.3d at 453. First, we determine whether the jury instruction is erroneous. Middleton, 125 S.W.3d at 453. Second, if error occurred, then an appellate court must analyze that error for harm. Id. The issue of error preservation is not relevant until harm is assessed because the degree of harm required for reversal depends on whether the error was preserved. Id. ⁴ We conclude that failure to preserve error is not a proper basis for the court of appeals to decline to address whether the trial court improperly commented on the weight of the evidence.

Furthermore, contrary to the court of appeals's conclusion that appellant did not adequately brief this issue in his direct appeal, appellant's first issue in his direct-appeal brief stated, “The definition is a comment on the weight of the State's evidence,” and he concluded that the instruction “emphasized personal effort without regard to the merely preparatory attempts to start the motorcycle.” Although he relied primarily on evidentiary-sufficiency cases discussing definitions of “operate” in support of his argument, his brief was sufficient to advance his improper-comment complaint. ⁵ Similarly, in his petition for discretionary review, he argues that a trial court “cannot create a charge that by its terms comments on the conduct at issue.” In his brief, he adds that “the non-statutory instruction” constituted “a prohibited comment on the weight of the evidence,” citing applicable authority. Because the court of appeals erred in declining to address his issue, and because he properly raises it in this Court, we must decide whether the trial court's instruction improperly commented on the weight of the evidence.

B. Error Analysis: Trial Court Erred in Defining “Operate” in Jury Charge 1. “Operate” is a Statutorily Undefined, Common Term

The Texas Penal Code provides that a person commits the offense of driving

[357 S.W.3d 650]

while intoxicated when the person “is intoxicated while operating...