Michel, Bryant Etienne v. The State of Texas--Appeal from 180th District Court of Harris County

Affirmedand Memorandum Opinion filed October 4, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00440-CR

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BRYANT ETIENNE MICHEL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th Judicial District Court

Harris County, Texas

Trial Court Cause No. 969,665

M E M O R A N D U M O P I N I O N

Appellant, Bryant Etienne Michel, was convicted of the felony offense of driving while intoxicated (ADWI@). See Tex. Pen. Code Ann. ' 49.04(a) (Vernon 2003), ' 49.09(b)(2) (Vernon Supp. 2005). He was found guilty following a bench trial. With enhancements for two prior DWI convictions, the court assessed a probated sentence of seven years= community supervision and a $500 fine. In two points of error, appellant contends the evidence was legally and factually insufficient to sustain his conviction. We affirm.

At approximately 3:30 a.m., on November 29, 2003, Officer Tony Tomeo of the Houston Police Department observed a vehicle blocking a lane of traffic. Officer Tomeo approached the vehicle and found appellant asleep at the wheel with the vehicle=s lights on, the engine running, the vehicle in gear, and appellant=s foot on the brake. Officer Tomeo opened the car door andCas he leaned inside the car to place the transmission in park and turn off the engineChe noticed a strong odor of alcohol on defendant=s breath and person. The appellant was unresponsive. Officer Tomeo revived the appellant, helped him from the vehicle, and conducted routine field sobriety tests. These tests included the Horizontal Gaze Nystagmus (AHGN@) test, the Rhomberg test, and the one-leg stand test. All of these tests indicated appellant was intoxicated and, accordingly, Officer Tomeo arrested appellant for DWI.[1]

Appellant contends on appeal the evidence was both legally and factually insufficient to sustain his conviction. More specifically, appellant argues that the State failed to prove he was operating his vehicle as contemplated by the drunk driving statute. To support this argument, appellant asserts the record is silent as to how long he was in the vehicle or whether another individual had control over the vehicle prior to his arrest.

When reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

When reviewing the factual sufficiency of the evidence, we need answer only one question: Considering all of the evidence in a neutral light, was the trier of fact rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways in which the evidence may be insufficient. Id. First, evidence supporting the verdict, when considered by itself, may be too weak to support a finding of guilt beyond a reasonable doubt. Id. Second, there may be evidence both supporting and contrary to the verdict. Id. Weighing all of the evidence at trial, the contrary evidence may be strong enough that the beyond a reasonable doubt standard could not have been met, and the guilty verdict should not stand. Id. at 485.

To secure a conviction for DWI, the State must prove the defendant was intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. ' 49.04(a); Stoutner v. State, 36 S.W.3d 716, 721 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d). The term Aoperate@ is not defined by the Penal Code. However, the Court of Criminal Appeals has taken a Atotality of the circumstances@ approach in deciding whether a defendant operated his vehicle within the meaning of the Code. Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). More specifically, the court explained in Denton that where Athe defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle=s use@ he has sufficiently operated his vehicle. Id. In other words, Aoperation does not necessarily involve driving@ and a DWI conviction may stand even where the evidence fails to prove the defendant was actively engaged in driving the vehicle. Id. at 389; see also Freeman v. State, 69 S.W.3d 374, 375 (Tex. App.CDallas 2002, no pet.) (holding evidence of operation legally and factually sufficient where SUV=s motor was running, gearshift was in the Adrive position,@ lights were on, right front tire was resting against a public street curb, and the driver was asleep at the wheel); Barton v. State, 882 S.W.2d 456, 459 (Tex. App.CDallas 1994, no pet.) (holding evidence sufficient to show sleeping defendant operated vehicle where defendant was alone, car was in gear, and defendant=s foot was on brake); Pope v. State, 802 S.W.2d 418, 420 (Tex. App.CAustin 1991, no pet.) (finding sufficient evidence to sustain DWI conviction where motorist was found sleeping behind wheel of vehicle sitting in roadway with engine running and lights on).

Here, appellant was found asleep inside his vehicle. The vehicle was sitting in a moving lane of traffic with the lights on and the engine running. More significantly, the vehicle was in gear and would have been moving if appellant=s foot had not been on the brake pedal. Once revived by Officer Tomeo, three field sobriety tests indicated appellant was intoxicated. Considering the totality of the circumstances in this case, the State sufficiently proved the elements of the offense beyond a reasonable doubt. We hold the evidence is legally sufficient to sustain appellant=s conviction when viewed in a light most favorable to the verdict, and factually sufficient to sustain appellant=s conviction when viewed in a neutral light. Accordingly, we overrule appellant=s two points of error.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed October 4, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] At trial, Officer Tomeo testified that he observed the maximum number of clues on the HGN test and the one-leg-stand test. Furthermore, he explained that when appellant was asked to estimate 30 seconds for the Rhomberg text, appellant stopped at 7 secondsCadditional evidence appellant had lost the normal use of his mental faculties.