Opinion
No. 10-03-00105-CR
Opinion delivered and filed October 13, 2004. DO NOT PUBLISH.
Appeal from the 40th District Court, Ellis County, Texas, Trial Court # 26763CR. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Justice VANCE concurs with a note. The substance of Holveck's legal and factual insufficiency argument is that there was no direct evidence that he had been driving the vehicle before the trooper arrived at the scene. There was circumstantial evidence supporting such a finding and contrary thereto. Considering all of the evidence under the appropriate standards, I would find it legally and factually sufficient. Consequently, it is unnecessary to consider whether applying a truck's brakes while it is being towed from a ditch constitutes driving while intoxicated.)
MEMORANDUM OPINION
This appeal concerns a conviction for felony driving while intoxicated. We will affirm. Appellant contends that the evidence that he operated a motor vehicle is legally and factually insufficient. See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003). "To find operation . . ., 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 (Tex.App.-Dallas 1994, no pet.)). "[O]peration does not necessarily involve driving." Id. at 389. Appellant argues that the trooper did not see him driving before the trooper first made contact with him. There is some disputed circumstantial evidence that Appellant drove the truck then. But the trooper saw, and videotaped, Appellant operating the truck after the trooper arrived. As a tow truck pulls Appellant's pickup out of a ditch by the side of the road, Appellant applies his truck's brakes. Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found beyond a reasonable doubt that Appellant operated his truck. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App. 2002). Accordingly, the evidence that he did so is legally sufficient. Viewing the evidence in a neutral light, the jury was rationally justified in finding beyond a reasonable doubt that Appellant operated his truck. See Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex.Crim.App. Apr. 21, 2004). Accordingly, the evidence that he did so is factually sufficient. Therefore, we overrule Appellant's issue. We affirm the judgment.