“Operation” of vehicle proven where the defendant was found atop his motorcycle try to start it

Sufficient to support “operation” of vehicle for purposes of DWI where the defendant was found in the middle of intersection sitting atop of his motorcycle and attempting to kick-start it. Kirsch v. State, 366 S.W.3d 86.

In reviewing the legal sufficiency of the evidence, we 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 beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (4–1–4 decision) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref‘d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). 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).

The 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) (―No longer shall sufficiency of the evidence be measured by the jury charge actually given‖); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008); Vega v. State, 267 S.W.3d 912, 916 (Tex. Crim. App. 2008). Under a hypothetically correct jury charge, Kirsch committed the offense of DWI if (1) he (2) operated (3) a motor vehicle (4) in a public place (5) while intoxicated. TEX. PENAL CODE ANN. § 49.04 (West 2003). Kirsch admits that he was intoxicated in a public place, and that a motorcycle is a motor vehicle. His only challenge on appeal questions whether he was ―operating‖ the motorcycle.

While there is no statutory definition of the term ―operate, the Texas Court of Criminal Appeals determined that a person ―operates a vehicle when ―the totality of the 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.‖ Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995) (citing Barton v. State, 882 S.W.2d 456, 460 (Tex. App.—Dallas 1994, no writ)); Dornbusch v. State, 262 S.W.3d 432, 436 (Tex. App.—Fort Worth 2008, no pet.). In Denton, the court held ―while driving does involve operation, operation does not necessarily involve driving.” 911 S.W.2d at 389. Under the Denton standard, operating a motor vehicle is interpreted very broadly. Dornbusch, 262 S.W.3d at 436. 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. Id.

It is true that no witness saw the motorcycle running. Yet, Kirsch was found in the middle of the road at an intersection sitting on top of his motorcycle, which he was attempting to balance. He was wearing a helmet and had keys in hand. Officer Johnson testified that Kirsch attempted to kick-start the motorcycle. Using the broad definition of operate, a jury could have determined Kirsch took action in a manner that would enable the motorcycle‘s use.

Moreover, the jury was not constrained from looking at circumstantial evidence, which alone can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13. There were no businesses or houses near the intersection, and Kirsch was in a lane of a public highway. The jury was free to draw reasonable inferences from the totality of these facts that Kirsch had driven the motorcycle to that place, and thus had operated the motorcycle while intoxicated. See Barton, 882 S.W.2d at 458; Reynolds v. State, 744 S.W.2d 156, 158–59 (Tex. App.—Amarillo 1987, pet. ref‘d) (evidence sufficient where driver found alone, with feet on floorboard of driver‘s seat of car that was half in ditch and half on road).

Based upon the totality of the circumstances, the court found the evidence legally sufficient to demonstrate Kirsch took action to affect the functioning of his vehicle in a manner that would enable the vehicle‘s use. Denton, 911 S.W.2d at 390.

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