COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-331-CR
CARLOS MENJIVAR APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Introduction
In one point, Appellant Carlos Menjivar asserts that the evidence was
legally and factually insufficient to support the jury’s guilty verdict in this felony
driving while intoxicated (DWI) case. We affirm.
1
… See Tex. R. App. P. 47.4.
II. Factual and Procedural History
Aaron Landa, who had been working as a night security guard for a
Huffines dealership in Lewisville on the night in question, testified that he heard
a loud noise at approximately 4:00 a.m. He described the noise as the sound
of a vehicle hitting something. He went to investigate and, fifteen to twenty
seconds later, saw Menjivar slowly pull his Toyota pickup truck up to the curb
and bump against it. He gave the following testimony:
Q. Now, when you got to the other side [of the building], you saw
a vehicle and—that was—was that vehicle moving at that time?
A. Yes, it was.
Q. Okay. How fast was that vehicle going at that point?
A. Pretty slow. About maybe five, seven miles an hour.
Q. And did you see the vehicle stop?
A. I saw it come to a—a—a stop.
Q. Okay. And do you know—did you see the brake lights come on
or anything like that?
A. When he hit the curb, yes.
Q. So you saw the vehicle hit the curb?
A. I saw him come to a stop as he hit the curb. Okay. I saw him
come to a stop as he bumped into the curb.
2
Menjivar’s vehicle was on the wrong side of the road and faced the wrong
direction of traffic. It was also damaged; the left front tire was flat, the left rim
was bent, and the left front bumper was bent. However, Landa did not see any
damaged fences, poles, or cars that could have caused the damage.
Landa testified that Menjivar “open[ed] his door and proceed[ed] to get
out of his vehicle.” He stumbled, and two to four beer cans fell out of the
vehicle. Landa was close enough to Menjivar to observe that he appeared to
be intoxicated and that he smelled of alcohol. Menjivar walked away from his
vehicle and went around the building’s fenced-in area, which blocked him from
Landa’s view for five to seven minutes. Landa called 9-1-1, and as he was
speaking with an operator, Menjivar came back to his vehicle, got inside,
started the engine, and sat there. He then turned the vehicle back off, got back
out, picked up the beer cans that had fallen out of the vehicle’s cab, and threw
them in the back of the truck. 2
2
… On cross-examination, Landa testified that Menjivar picked up the cans
the first time that he got out of the vehicle, before he wandered out of sight.
Landa stated that he had worked for the dealership for four months—this
incident occurred during the third month—and that he quit when the company
instituted a background check policy because he had five felonies from 1998:
attempted burglary, attempted theft, attempted theft of means of transportation
“times two,” and use of a vapor-releasing substance (“sniffing spray paint at
the age of 18“).
3
Lewisville Police Officer Robert Limon responded to the 9-1-1 call. Upon
arriving, he saw a parked black pickup truck with two flat tires on the driver’s
side, facing westbound in the eastbound lanes. Menjivar was in the driver’s
seat of the vehicle, but Officer Landa did not see Menjivar drive it. Officer
Landa’s testimony was as follows:
Q. All right. Now, when you came on the scene, you saw the
vehicle there. Was the vehicle operating at that time?
A. The vehicle was on, but no, it wasn’t moving or anything.
Q. You’re saying it was on?
A. Yes.
Q. So the keys were in the ignition?
A. Yes.
When Officer Limon first made contact with Menjivar, he noticed that
Menjivar “had an odor of alcoholic beverage on him.” Officer Landa asked
Menjivar to get out of the vehicle so that he could interview him. Once
Menjivar was out of the vehicle, Officer Landa noticed that Menjivar had his
jacket on upside-down.
Officer Limon asked Menjivar if he had had anything to drink. Menjivar
replied that he’d had a Bud Light at 10:00 p.m.; he later stated that his last
drink was at 3:45. Officer Landa asked Menjivar where he was headed.
4
Menjivar replied that he was going to work at Sam’s Warehouse on Main
Street, but he later said that he was headed home from a friend’s house.
Officer Limon testified that he noticed two cans of Bud Light about three feet
from Menjivar’s vehicle. Menjivar told the officer that he had been drinking Bud
Light, but he denied that the cans belonged to him. He admitted to Officer
Landa that his fingerprints might be on the cans.
Officer Limon administered three field sobriety tests—Menjivar failed two
of them. Officer Landa formed the opinion that Menjivar was intoxicated based
on talking with him, field testing, and physical observations. He placed
Menjivar under arrest for DWI and transported him to the police station.
At the station, Officer Limon gave Menjivar his statutory warnings for
blood and breath samples, and Menjivar agreed to a blood draw. The two blood
tests revealed ethyl alcohol in the amounts of .21 and .22 respectively.3
Officer Limon also read Menjivar his Miranda warnings. 4 Menjivar waived his
rights and told Officer Limon that he had been driving the vehicle prior to
3
… Joyce Ho, senior toxicologist and lab manager of the Tarrant County
Medical Examiner’s Office, testified that the lab tests all blood samples twice.
The legal limit for blood alcohol concentration is .08. See Tex. Penal Code Ann.
§ 49.01(2)(B) (Vernon 2003).
4
… Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
5
Officer Limon’s arrival and that he had consumed alcohol. He told Officer
Limon that he did not feel that he was intoxicated.
Officer Limon testified that he did not speak with Landa. Lewisville Police
Officer Chris Kautz, who arrived at the scene after Officer Limon, took Landa’s
statement. Officer Kautz testified that the witness had called in and said that
he had seen or heard a vehicle have a collision but did not see anything that
looked like it had been hit. When Officer Kautz arrived, a Toyota pickup was
facing the wrong direction on the left side of Huffines Street, which is adjacent
to the Interstate 35 frontage road. The vehicle was up against the curb and
had a damaged left-front tire.5 Officer Kautz testified that Menjivar’s eyes were
red and watery, he smelled of alcohol, and his jacket was upside-down. There
was a beer can “just outside the truck near the sidewalk,” which Landa told him
Menjivar had thrown out of the vehicle.
During the defense’s case, Menjivar’s wife testified that Menjivar called
her after 2 a.m. that morning. She spoke with him for five to ten minutes. She
testified that he had sounded like he had been drinking and that she believed
he had been intoxicated.
5
… Officer Kautz stated that the wheel and rim were damaged “as if it
had hit something causing it to go flat rather than just a normal, you know, nail
in the tire or something of that sort.”
6
Menjivar stipulated to his two prior DWI convictions, and the jury found
him guilty of felony DWI. The trial court sentenced him to five years’
confinement, and this appeal followed.
III. Operation of a Vehicle
Section 49.04(a) of the Texas Penal Code states, “A person commits an
offense if the person is intoxicated while operating a motor vehicle in a public
place.” Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). In his sole point,
Menjivar argues that the evidence was insufficient to show that he was
“operating” a motor vehicle.6
A. Standards of Review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of 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 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
6
… Menjivar does not challenge the remaining elements of the offense,
and there is ample evidence to support them.
7
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See Tex. Code Crim.
Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568
(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000). Instead, we “determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.” Hooper
v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume
that the factfinder resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.
State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
8
nevertheless so weak that the factfinder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the factfinder’s determination is
manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at
414–15, 417. To reverse under the second ground, we must determine, with
some objective basis in the record, that the great weight and preponderance of
all the evidence, although legally sufficient, contradicts the verdict. Watson,
204 S.W.3d at 417.
Unless we conclude that it is necessary to correct manifest injustice, we
must give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson
v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d
at 246. Evidence is always factually sufficient when it preponderates in favor
of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d
at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Watson, 204 S.W.3d at 417. We cannot conclude
that a conviction is clearly wrong or manifestly unjust simply because we would
9
have decided differently than the jury or because we disagree with the jury’s
resolution of a conflict in the evidence. Id. We may not simply substitute our
judgment for the factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958
S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals
that a different result is appropriate, we must defer to the jury’s determination
of the weight to be given contradictory testimonial evidence because resolution
of the conflict “often turns on an evaluation of credibility and demeanor, and
those jurors were in attendance when the testimony was delivered.” Johnson,
23 S.W.3d at 8. Our deference in this regard safeguards the defendant’s right
to a trial by jury. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App.
2008).
B. Applicable Law
Menjivar cites Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App.
1995), for the proposition that operation of a vehicle is found when the totality
of the circumstances demonstrates that the defendant took action to affect the
functioning of his vehicle in a manner that would enable the vehicle’s use and
then argues that there was “insufficient proof of operation presented at trial by
any standard” such that his conviction must be reversed.
This court has previously addressed the concept of “operating” a vehicle
as contemplated by section 49.04(a) of the Texas Penal Code. See Dornbusch
10
v. State, 262 S.W.3d 432, 436–37 (Tex. App.—Fort Worth 2008, no pet.).
In Dornbusch, we affirmed the appellant’s DWI conviction as to the issue of
vehicle operation when the evidence showed that he had been sitting in his
vehicle, “parked oddly” in a parking lot, with his headlights on, engine running,
and the transmission not in park. See id. at 433–35. We summarized the
concept of operation of a vehicle as follows:
There is no statutory definition of the term “operate.” However,
the court of criminal appeals has held that, to find operation of a
motor vehicle, “the totality of the circumstances must demonstrate
that the defendant took action to affect the functioning of his
vehicle that would enable the vehicle’s use.” In reaching its
holding, the court repeated the reasoning enunciated in Barton:
We do not accept the contention that to operate a
vehicle within the meaning of the statute, the driver’s
personal effort must cause the automobile to either
move or not move. Purposely causing or restraining
actual movement is not the only definition of
‘operating’ a motor vehicle. In other words, we
examine the totality of the circumstances to determine
if [the defendant] exerted personal effort upon his
vehicle [ . . . ] for its intended purpose.
Under this standard, “operating” a motor vehicle is interpreted very
broadly. 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 functioning of
[a] vehicle in a manner that would enable the vehicle’s use.” Any
action would either not be more than mere preparation or it would
fall within the broad definition of “operating a motor vehicle.”
Numerous cases have upheld DWI arrests or convictions
under the totality of circumstances test even though the person
11
“operating” the motor vehicle was initially found to be asleep or
unconscious. For instance, persons asleep or unconscious were
found to be “operating” their motor vehicle when the vehicle was
stopped by the roadway with its right front tire against the curb
and engine running, gearshift in “Drive,” and lights on, . . . ;
stopped in a moving lane of traffic with the engine running and the
vehicle’s owner in the driver’s seat, . . . ; and stopped on a
roadway with the engine running, lights on, and the vehicle’s
operator sitting behind the steering wheel.
Furthermore, prior to the adoption of the totality of
circumstances test, persons who were asleep or unconscious were
found to be “operating” their motor vehicle when the vehicle was
stopped in the middle of the road with the engine running, gearshift
in “Drive,” and operator slumped behind the steering wheel with his
foot on the brake, . . . ; stopped in the roadway with the engine
running, lights on, and the vehicle’s owner sitting behind the
steering wheel, . . . ; stopped in the roadway facing oncoming
traffic with the engine running, lights on, and operator asleep in the
driver’s seat with his foot on the brake, . . . ; and found half in a
ditch and half on a farm-to-market road with the operator alone
behind the steering wheel with both feet on the floorboard beneath
the steering wheel.
Id. at 436–37 (internal citations omitted).
C. Analysis
There is legally sufficient evidence that Menjivar operated his vehicle.
See id. Specifically, Officer Limon testified that Menjivar told him that he had
been driving the vehicle prior to Officer Limon’s arrival. Additionally, Officer
Limon testified that when he arrived, Menjivar was sitting in the vehicle behind
the steering wheel, with the keys in the ignition and the vehicle turned on. See
12
id. The jury reasonably could have chosen to believe this testimony. See
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
Furthermore, Landa testified that he saw Menjivar behind the wheel of the
damaged vehicle when it rolled to a stop. He saw Menjivar exit the vehicle and
leave the area and then saw him return, reenter the vehicle, start the engine,
and sit in the car. Menjivar complains that Landa’s testimony “is so
unbelievable that it must be discarded” with regard to the amount of time it
took him to drive to Menjivar’s vehicle after hearing the loud noise and as to
Menjivar’s identity.7 However, the jury also heard Officer Limon’s testimony
that Menjivar was in the vehicle when he arrived and both officers’ testimonies
that the vehicle had suffered some damage. And although there were some
inconsistencies in the evidence presented by Landa and Officers Limon and
Kautz, the jury had the discretion to determine who and what to believe.
Considering this and all of the evidence set out above, we cannot conclude that
the evidence in favor of conviction is so weak that the jury’s determination was
clearly wrong and manifestly unjust or that conflicting evidence so greatly
outweighs the evidence supporting the conviction that the jury’s determination
7
… Menjivar complains, “Then Landa allegedly witnesses a driver . . .
whom he sees for only seconds, walk away to a place where he is observed by
no one, then can be positive the same individual returns five minutes later.”
13
was manifestly unjust. See Steadman, 280 S.W.3d at 246; Watson, 204
S.W.3d at 414–15, 417. Therefore, we conclude that the evidence is also
factually sufficient. We overrule Menjivar’s sole point.
IV. Conclusion
Having overruled Menjivar’s sole point, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 31, 2010
14