Opinion issued March 25, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00325-CR
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MICHAEL CHANNING MCCANN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 6
Harris County, Texas
Trial Court Case No. 1841860
OPINION
The trial court found appellant, Michael Channing McCann, guilty of
driving while intoxicated (“DWI”) 1 and assessed his punishment at three days’
1
See TEX. PENAL CODE ANN. § 49.04(a) (Vernon Supp. 2013).
confinement in the Harris County Jail and a $1000 fine. In his sole issue on
appeal, appellant argues that the evidence was legally insufficient to establish that
he operated the vehicle while he was intoxicated.
We affirm.
Background
Officer L. Garcia was dispatched to a commercial building on Bay Area
Boulevard on July 27, 2012, at approximately 2:00 a.m., based on a report that a
man was wandering in front of the building and that the man “wasn’t aware of
where he was.” Officer Garcia arrived approximately five to ten minutes after
being dispatched, and the person who had made the report pointed Garcia in the
direction of the man, whom Garcia identified in court as appellant.
Officer Garcia approached appellant and observed that he appeared
intoxicated: appellant had slurred speech and could not stand still. Officer Garcia
testified that appellant told him he had been drinking with a family member in
League City but had left after arguing with his brother. Appellant told Officer
Garcia that he got lost after leaving League City and then drove off the road and hit
something. Appellant told Officer Garcia that he was trying to get back to his
vehicle.
Officer Garcia testified that, at that point, he placed appellant in the back of
his patrol car and went in search of appellant’s vehicle, but appellant told Garcia
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that he was unfamiliar with the area and could not remember where he had left it.
Officer Garcia and appellant located the vehicle about five minutes later,
approximately 300 to 400 yards from where Officer Garcia first encountered
appellant. Appellant acknowledged that the vehicle—located in a median in front
of an apartment complex—was his. Officer Garcia did not encounter any
pedestrians while he searched for the car with appellant.
Officer T. Berry had also been dispatched to the building on Bay Area
Boulevard in reference to the accident. When he arrived at the scene, Officer
Berry found Officer Garcia and appellant standing next to a maroon Nissan Altima
in a grassy median. The front end of the vehicle was up against a tree in the
median, and Officer Berry observed that the vehicle’s airbags had deployed and
that the vehicle’s hood was warm—“warmer than the ambient air temperature.”
Appellant told Officer Berry that he had been drinking wine at a family member’s
home, got into an argument with his brother, attempted to drive the vehicle back to
his hotel, and got lost. Officer Berry observed that appellant demonstrated signs of
intoxication such as “slurred speech, staggered stance, and red, watery eyes.”
Appellant also told Officer Berry that “the air bag had hit him pretty hard.”
Officer Berry testified about the area where officers discovered appellant’s
wrecked vehicle. Officer Berry did not observe any pedestrian traffic in the area,
and the vehicular traffic was light. Officer Berry also testified that it was a “very
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quiet” area of town. There were no bars nearby, and there were no establishments
that sold alcohol in the area. Officer Berry stated that the nearest bar was
approximately four to five miles from where appellant’s vehicle was found crashed
and that the only nearby place that sold alcohol—which was between two and two-
and-a-half miles away—closed at 10:30 p.m.
A third officer, Officer N. Slight, arrived on the scene of the accident. He
noticed that appellant had red, watery eyes, slurred speech, and “the odor of
alcohol coming from his breath and person.” Appellant told Officer Slight that he
had drunk a margarita and three glasses of wine. Officer Slight administered
standard field sobriety tests to appellant. Officer Slight testified that appellant
demonstrated six out of six clues of intoxication on the horizontal gaze nystagmus
test, four out of eight clues of intoxication on the walk-and-turn test, and four out
of four clues on the one-leg stand test. Officer Slight reached the conclusion that
appellant demonstrated multiple indicators of intoxication and was too impaired to
drive safely. He transported appellant to the county jail, where appellant declined
to provide a breath sample. At some point during or after the booking process,
appellant complained of chest and wrist pain, so the police called for an
ambulance.
The trial court found appellant guilty of DWI, and this appeal followed.
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Sufficiency of the Evidence
In his sole issue, appellant argues that the evidence was legally insufficient
to support his DWI conviction.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). Our review of “all of the evidence” includes evidence that was properly
and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). Furthermore, direct and circumstantial evidence are treated equally, and
circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor. Id. Circumstantial evidence alone can be sufficient to establish guilt.
Id. The fact finder is the exclusive judge of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). We may not re-evaluate the weight and
credibility of the evidence or substitute our judgment for that of the fact finder.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also Clayton,
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235 S.W.3d at 778 (“When the record supports conflicting inferences, we presume
that the factfinder resolved the conflicts in favor of the prosecution and therefore
defer to that determination.”).
B. Satisfaction of the Corpus Delicti Rule
Appellant argues in part that the State presented no corroborating evidence
to support his extrajudicial statement to the police officers at the scene that he had
been drinking and had run off the road and hit something, and, thus, the State had
failed to satisfy the corpus delicti rule. Appellant contends that his extrajudicial
statement, standing alone, is legally insufficient to establish his guilt.
In Texas law, “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). The corpus delicti rule requires some corroboration of a
confession with evidence of a harm brought about by the criminal conduct of some
person. Gonzales v. State, 190 S.W.3d 125, 130–31 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d) (citing Gribble, 808 S.W.2d at 70); see Salazar v. State, 86
S.W.3d 640, 644 (Tex. Crim. App. 2002). The purpose of the corroboration
requirement is to ensure that a person confessing to a crime is not convicted
without independent evidence that the crime actually occurred. Salazar, 86
S.W.3d at 644–45. Therefore, the corpus delicti rule is satisfied if some evidence
exists outside of the extrajudicial confession which, considered alone or in
6
connection with the confession, shows that the crime actually occurred. Id. at 645.
The corroborating evidence need not prove the underlying offense conclusively;
there simply must be some evidence that renders the commission of the offense
more probable than it would be without the evidence. Gonzales, 190 S.W.3d at
131 (citing Cardenas v. State, 30 S.W.3d 384, 390 (Tex. Crim. App. 2000)).
The Penal Code provides that a person commits the offense of DWI if he is
intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE
ANN. § 49.04(a) (Vernon Supp. 2013). Thus, the corpus delicti of DWI is that
someone drove or operated a motor vehicle in a public place while intoxicated.
Layland v. State, 144 S.W.3d 647, 651 (Tex. App.—Beaumont 2004, no pet.);
Zavala v. State, 89 S.W.3d 134, 137 (Tex. App.—Corpus Christi 2002, no pet.)
(citing Threet v. State, 250 S.W.2d 200, 200 (Tex. Crim. App. 1952)).
While none of the investigating officers saw appellant driving the vehicle,
other evidence corroborated appellant’s statement that he had left the place where
he had been drinking, got lost, drove off the road, and hit something. See Laster v.
State, 275 S.W.3d 512, 522–23 (Tex. Crim. App. 2009) (holding that fact finder
may draw reasonable inferences from evidence and choose which inference is most
reasonable). Police found appellant intoxicated and wandering within 300 to 400
yards of where the crashed vehicle was located. The vehicle was found on a
median, crashed into a tree. Appellant acknowledged that the crashed vehicle
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belonged to him. He complained of chest and wrist pain, which corresponded to
his being struck by deploying air bags. Officer Slight testified that the hood of
appellant’s vehicle was warmer than the ambient air temperature when he arrived
at the scene of the accident, indicating that the engine had recently been running,
and that appellant demonstrated multiple signs of intoxication. All of the officers
testified that there were no other pedestrians in the area. Thus, there was no one
else around who could have been the driver of the recently crashed vehicle. And
Officer Berry testified that there was no place nearby where appellant could have
purchased alcohol.
Appellant argues that this evidence is insufficient to corroborate his
extrajudicial statement to police, citing cases like Threet and Coleman v. State to
support his argument. However, we find the cases cited by appellant to be
distinguishable from the present case.
In Threet, a highway patrolman found an overturned vehicle with no driver.
250 S.W.2d at 200. The patrolman located the defendant in a hospital, where the
defendant, who appeared to be intoxicated, admitted to the patrolman that he was
the driver of the crashed vehicle. Id. The Court of Criminal Appeals held that the
evidence was insufficient to support the appellant’s conviction:
Outside of appellant’s confession, we have only a turned-over or
wrecked pick-up on the highway to establish his guilt. Except for
such confession, there is no testimony that he was the driver of the
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truck, that he owned the truck, or that he was seen at the place of the
wreck.
Id. Here, however, as discussed above, we have more than just a wrecked vehicle.
In Coleman, officers arrived at the scene of a traffic accident to find three or
four people standing near two stationary vehicles. 704 S.W.2d 511, 511 (Tex.
App.—Houston [1st Dist.] 1986, pet. ref’d). Coleman, who was intoxicated, told
officers at the scene that he had been driving and had “run into” the vehicle in front
of him. Id. No other evidence was presented. See id. This Court observed that
there was no evidence, other than Coleman’s extrajudicial confession, to show that
he was driving the vehicle and “no evidence whatsoever to show that he was
intoxicated at the time he was driving.” Id. at 512 (emphasis in original). This
Court held that the corpus delicti of DWI was not satisfied, contrasting Coleman’s
case with cases in which a defendant’s statement was corroborated by evidence
that the car was registered in his name and that no one else was with him or by a
witness who heard the accident and found the crashed car containing only the
defendant. Id. (citing Sandoval v. State, 422 S.W.2d 458 (Tex. Crim. App. 1967),
and Perez v. State, 432 S.W.2d 954 (Tex. Crim. App. 1968)). Here, however, as
discussed above, appellant described how the accident occurred. He was the only
person in the area; he was found near the scene of the crash; he searched with
Officer Garcia for his vehicle; he acknowledged that the vehicle belonged to him;
he had injuries corresponding to having been struck by the deployed air bag; the
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hood of his vehicle was still warm when Officer Berry arrived on the scene; he
smelled of alcohol to Officer Slight; and he exhibited multiple clues of intoxication
when administered the field sobriety tests.
Other courts have found evidence similar to that in this case sufficient to
corroborate a defendant’s extrajudicial statement. In Rawls v. State, a wrecker
driver flagged down a police patrol and informed the officers that the defendant,
Rawls, had had a minor accident. 318 S.W.2d 662, 663 (Tex. Crim. App. 1958).
Police found Rawls next to an inoperable car, and Rawls told the police that he had
hit something and then had driven as far as he could, but his car would no longer
run. Id. The police, accompanied by Rawls, followed a trail of water from what
appeared to be a leaking radiator until they found a telephone pole that had been hit
and broken approximately eight blocks away. Id. Upon returning to the vehicle,
police observed that the radiator and motor were still hot. Id. The trial court also
admitted evidence that Rawls was intoxicated at the time. Id. The Court of
Criminal Appeals affirmed Rawls’ conviction, even though “[t]he only direct
evidence that [Rawls] had driven a motor vehicle upon a public street was his
statement or confession,” stating,
The fact that appellant failed to challenge the statement of the driver
of the wrecker or in any other manner failed to challenge the
implication that it was his automobile which the officer trailed and
which was found at the site is deemed sufficient circumstance to
corroborate his extrajudicial confession that he was the driver of the
automobile.
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Id. (relying on Fancher v. State, 319 S.W.2d 707, 708 (Tex. Crim. App. 1958)
(holding that ownership of vehicle and presence at scene of crash sufficiently
corroborated appellant’s statement)). Likewise, here, appellant described running
off the road and striking something. He then accompanied Officer Garcia on a
search for his car, acknowledged that the crashed vehicle belonged to him when it
was found, and did not make any other statements or present any evidence
challenging that acknowledgment. He was found within 300 to 400 yards from the
site of his crash with an inanimate objecte, and the hood of his vehicle was still
warm. Appellant also failed all three field sobriety tests administered to him and
complained of injuries consistent with his having been struck by a deployed air
bag, as he had described.
In Folk v. State, the Austin Court of Appeals held that evidence that the
vehicle in question was registered to a person with whom the defendant lived was
sufficient to corroborate his admission that he was driving the vehicle that night.
797 S.W.2d 141, 144 (Tex. App.—Austin 1990, pet. ref’d). In Zavala, the Corpus
Christi Court of Appeals held that evidence that the appellant was purchasing the
vehicle and had taken possession of it, together with the condition of the vehicle at
the time officers arrived on the scene, was sufficient to corroborate his statement.
89 S.W.3d at 137 & n.5.
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Thus, we conclude that there is evidence outside of appellant’s extrajudicial
confession showing that the crime of DWI was committed. Therefore, the corpus
delicti rule was satisfied. See Salazar, 86 S.W.3d at 645 (holding that corpus
delicti rule is satisfied if some evidence exists outside of extrajudicial confession
which, considered alone or in connection with confession, shows that crime
actually occurred); Gonzales, 190 S.W.3d at 131 (holding that corroborating
evidence need not prove underlying offense conclusively); Layland, 144 S.W.3d at
651 (holding that corpus delicti of DWI is that someone drove or operated motor
vehicle in public place while intoxicated).
C. Evidence That Appellant Drove While Intoxicated
Appellant also argues that the evidence is legally insufficient to show that he
operated a vehicle while intoxicated. A person commits the offense of driving
while intoxicated if the person is intoxicated while driving or operating a motor
vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a). To support a finding
that the defendant was intoxicated while operating a motor vehicle, there must be a
temporal link between the defendant’s intoxication and his driving. Kuciemba v.
State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). Such a finding can be
supported by direct or circumstantial evidence. Id. (holding that conviction can be
supported solely by circumstantial evidence). “Being intoxicated at the scene of a
traffic accident in which the actor was a driver is some circumstantial evidence that
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the actor’s intoxication caused the accident, and the inference of causation is even
stronger when the accident is a one-car collision with an inanimate object.” Id.
Here, appellant does not challenge the State’s evidence that he was
intoxicated at the time he interacted with Officers Garcia, Berry, and Slight.
Rather, he argues that there was no evidence that he was intoxicated while he
operated the vehicle. We disagree.
Officer Garcia discovered appellant near the scene of a one-car collision
with an inanimate object. Appellant acknowledged that the vehicle belonged to
him and told officers at the scene that he had been drinking at a family member’s
house and drove away following a fight with his brother. He became lost on his
way back to his hotel, drove off the road, and hit something. Officer Berry
testified that he observed that the hood of the vehicle was warm when he arrived
on the scene. Officer Berry also testified that the air bags had been deployed and
that appellant complained of chest and wrist pain. All of the officers testified that
there were no other pedestrians in the area, and Officer Berry testified that there
were no bars or establishments that sell alcohol in the area. All three officers
testified that appellant appeared intoxicated, and Officer Slight testified that
appellant smelled of alcohol and failed all three field sobriety tests that were
administered to him.
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Even without knowing the exact time span between when the accident
occurred and when Officers Garcia and Berry arrived on the scene, this evidence,
when viewed in the light most favorable to the verdict, is sufficient to support the
trial court’s finding that appellant was intoxicated while he was driving the vehicle.
See Kuciemba, 310 S.W.3d at 462 (holding that circumstantial evidence may
support temporal link between defendant’s intoxication and his driving); Weems v.
State, 328 S.W.3d 172, 177 (Tex. App.—Eastland 2010, no pet.) (“The State need
not establish the precise time of an accident or of the defendant’s driving to prove
the offense of driving while intoxicated.”) (citing Kuciemba, 310 S.W.3d at 462,
Kennemur v. State, 280 S.W.3d 305, 314 n.8 (Tex. App.—Amarillo 2008, pet.
ref’d), and Zavala, 89 S.W.3d at 139).
The warmth of the hood is some evidence that the accident occurred a
relatively short time before police arrived on the scene. See Warren v. State, 377
S.W.3d 9, 14 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (“The warmth of
the hood and cab of the truck is some evidence that the accident occurred a short
time before Deputy Drake arrived.”) (citing Rawls, 318 S.W.2d at 663). The facts
that appellant smelled of alcohol and failed the field sobriety tests, there were no
other pedestrians nearby who could have been involved in the crash, and there
were no bars or establishments that sold alcohol in the area likewise support the
trial court’s conclusion that appellant was intoxicated at the time he drove his car
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into the area and crashed on the median. See Weems, 328 S.W.3d at 175–76
(holding that evidence was sufficient to establish that appellant operated vehicle
while intoxicated when vehicle was registered to appellant’s mother, who testified
that he had vehicle on night in question, appellant was found four-tenths of a mile
from accident scene in rural area, and police and EMS personnel saw no one else
in area). Furthermore, appellant told police officers that he had been drinking with
a family member before he left the house to drive back to his hotel. Appellant told
Officer Slight that he had consumed one margarita and three glasses of wine before
driving away from his relative’s home. See Zavala, 89 S.W.3d at 137–38
(considering appellant’s extrajudicial statement to police in determining evidence
was sufficient to support DWI conviction when sufficient evidence corroborated
appellant’s statement) (citing Self v. State, 513 S.W.2d 832, 835 (Tex. Crim. App.
1974) (holding that confession may be used to aid in establishment of corpus
delicti if there is some evidence corroborating it)).
Viewing all of the evidence in the light most favorable to the trial court’s
verdict, we determine that the trial court could have found, beyond a reasonable
doubt, that appellant operated a vehicle in a public place while he was intoxicated.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (providing standard for reviewing
sufficiency of evidence); Kuciemba, 310 S.W.3d at 462.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
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Michael Channing McCann v. State
Combined Opinion