Kirsch v. Texas (Original)
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Appellant Scott Kirsch, was convicted of his second driving while intoxicated (DWI) offense. A passerby witnessed Appellant stopped in the middle of the road at an intersection. After a few moments, he began slowly tilting to one side before falling over completely, one leg under his motorcycle, the other still straddling it. The passerby pulled beside Appellant and asked if he was ok, but he declined any help. She drove away and saw in her rearview mirror Appellant made no attempt to get up. She called the sheriff to report the incident. When sheriff deputies arrived to assist, they found Appellant attempting to kick-start his motorcycle. The deputy concluded that Appellant was intoxicated and placed him under arrest. In the written charge to the jury, the instructions defined "operate" as "to exert personal effort to cause the vehicle to function." Defense counsel objected to use of the term as it was not defined in the Penal Code, and alleged the prosecutor made his own definition. In his petition for discretionary review, Appellant argued that the court of appeals erred by affirming the trial court's charge to the jury. Upon review, the Court of Criminal Appeals concluded that the trial court erred in defining that term, and reversed the judgment of the court of appeals.
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