Robison v. State
| Decision Date | 18 October 2017 |
| Docket Number | No. 06-17-00082-CR,06-17-00082-CR |
| Parties | ARTHUR ROBISON, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 16th District Court Denton County, Texas
Trial Court No. F15 2041-16
Before Morriss, C.J., Moseley and Burgess, JJ.
Arthur Robison appeals from a conviction of driving while intoxicated (DWI), third or more, and the resulting sentence of three years' incarceration.1 Robison contends that there was insufficient evidence to support his conviction and that the trial court erred in its assessment of court costs. For the reasons below, we affirm the judgment, as modified.
Heather Brun, an officer with the Carrollton Police Department, testified that, on January 28, 2015, she received a "suspicious person call" from dispatch. The 9-1-1 caller, Retha Campos, reported that someone had knocked on her door around midnight and asked if he could have some computer equipment at the edge of her yard. Campos also said that the individual had been looking around Campos' yard with a flashlight. Campos further reported that the individual got into a "silver pickup, double cab" and that the truck had "last [been] seen heading towards Josey [Lane]." Campos described the individual as a white male in his late twenties.
Brun testified that she arrived at Campos' Tree Line Drive address approximately two minutes and fifteen seconds after the 9-1-1 call was received by dispatch. When Brun arrived, she "saw a [silver, double-cab] truck parked about halfway down the block on Tree Line," and she testified that "[t]he truck lights were on" and the engine was running. When she drove past thetruck, Brun saw a Caucasian male in a "park-like area" (called a greenbelt) "with a flashlight on his phone looking at the ground." At that point, Brun "called him over to [her]."
Brun's investigation began as a "suspicious person" complaint rather than a DWI investigation. However, when the man approached Brun, she could smell the odor of alcohol coming from him. Brun obtained his driver's license and identified him as Robison. Robison told her that he smelled like alcohol because he was a bartender, but Brun believed that the odor was coming from Brun's breath, not from his clothes. Robinson also told her that he had been at a friend's house playing video games and denied having consumed alcohol or drugs. Robison had difficulty giving directions to his friend's house, but explained, "This is the first time I've been over to his house."
Robison told Brun that, after leaving his friend's house, "[he] was coming around this corner," and thought he had "clipped" a black truck, thereby knocking off his truck's side mirror. Although she did not find any evidence to support Robison's claim that he had collided with another truck, Brun did see damaged bushes, trees, and a road sign that had been knocked to the ground at the intersection of Josey Lane and Tree Line Drive. In addition, she found pieces of Robison's truck's mirror in the center median. Nevertheless, Robison denied that he had caused the damage by hitting a sign, but continued to maintain that he had hit another truck.
Based on the totality of this information, Brun administered field sobriety tests to Robison. After completing the tests, Brun believed that Robison was under the influence of alcohol, drugs, or a combination of the two, and she arrested him for the offense of DWI.2
In evaluating legal sufficiency, we must review all the evidence in the light most favorable to the jury's verdict to determine whether any rational jury could have found the essential elements of DWI, third offense, beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories ofliability, and adequately describes the particular offense for which the defendant was tried." Id. Under Texas law, a person is guilty of DWI, third offense, if the person (1) having been two times previously convicted of an offense related to the operation of a motor vehicle while intoxicated (2) is intoxicated (3) while operating a motor vehicle (4) in a public place. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b) (West Supp. 2016).
The only element in dispute in this case is whether Robison had been operating his vehicle at the time in question. Pointing to the corpus delicti doctrine, Robison contends his admission that he had been operating the motor vehicle, without corroboration, is insufficient to establish this element of the offense. See Miller v. State, 457 S.W.3d 919, 920 (Tex. Crim. App. 2015); see also Fisher v. State, 851 S.W.2d 298, 302 (Tex. Crim. App. 1993). The term "corpus delicti" means the "harm brought about by the criminal conduct of some person." Gribble v. State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990). In Hacker, the Court of Criminal Appeals explained the corpus delicti rule, stating, "When the burden of proof is 'beyond a reasonable doubt,' a defendant's extrajudicial confession does not constitute legally sufficient evidence of guilt absent independent evidence of the corpus delicti." Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013).
The corroborating evidence requirement ensures that a person admitting to a crime is not convicted without independent evidence that the crime actually occurred. Salazar v. State, 86 S.W.3d 640, 644 (Tex. Crim. App. 2002). "The corroborating evidence need not prove the underlying offense conclusively; there simply must be some evidence that renders the commissionof the offense more probable than it would be without the evidence." McCann v. State, 433 S.W.3d 642, 646 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Gonzales v. State, 190 S.W.3d 125, 131 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd)). We must therefore consider whether independent evidence existed to support the jury's finding that Robison was operating the truck prior to his arrest for DWI.
The term "operating," as utilized in the Penal Code, is not defined. See TEX. PENAL CODE ANN. § 49.04(a);3 see also Kirsh v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012). In assessing the sufficiency of the evidence to prove that a defendant was "operating" a vehicle as contemplated by the statute, we look to the totality of the circumstances. Kirsh, 357 S.W.3d at 651. Those circumstances must "demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." Id. at 650-51 (quoting Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995)).
"Under this standard, 'operating' a motor vehicle is interpreted very broadly." Smith v. State, 401 S.W.3d 915, 919 (Tex. App.—Texarkana 2013, pet. ref'd) (). "[W]hile driving does involve the operation, operation does not necessarily involving driving." Denton, 911 S.W.2d at 389. "Because 'operating a motor vehicle' is defined so broadly, any action that is more than mere preparation toward operating the vehicle would necessarily be an 'action to affect the function of [a] vehicle in a manner that would enable the vehicle's use.'" Smith, 401 S.W.3d at 919 (quotingStrong v. State, 87 S.W.3d 206, 216 (Tex. App.—Dallas 2002, pet. ref'd), abrogated on other grounds by Pfeiffer v. State, 363 S.W.3d 594 (Tex. Crim. App. 2012)). The action taken to affect the function of the vehicle "need not succe[ed] in causing the vehicle to function for the person to be operating it." Strong v. State, 87 S.W.3d 206, 215 (Tex. App.—Dallas 2002, pet. ref'd), abrogated on other grounds by Pfeiffer v. State, 363 S.W.3d 594 (Tex. Crim. App. 2012).
Accordingly, Texas courts have upheld DWI convictions in cases where the intoxicated person was not actually driving the vehicle. See, e.g., Denton, 911 S.W.2d at 388-89 (); Dornbusch v. State, 262 S.W.3d 432, 433 (Tex. App.—Fort Worth 2008, no pet.) ("operation" occurred where driver fell asleep, "hunched over the steering wheel" in parking lot); see also Hearne v. State, 80 S.W.3d 677, 679 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (defendant asleep behind wheel of idling vehicle in roadway with gear shift in "park"); Barton v. State, 882 S.W.2d 456, 458 (Tex. App.—Dallas 1994, no pet.) (defendant asleep behind wheel of idling vehicle in roadway with gear shift in neutral).
Although Brun did not see Robison operating the truck, other evidence corroborated Robison's statement that he, in fact, had been driving it. First, Campos described the person at her door as a white male in his late twenties. She said that he had just driven away from her residence in a silver truck and that he was searching for something in her yard...
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