Jesse Dwayne Black v. State, 06-15-00060-CR

Defendant Jesse Dwayne Black was charged with Class A misdemeanor DWI after a pickup left the roadway and struck a tree; he was found slumped in the driver’s seat, keys in the ignition, and the truck was registered to him.
First officers on scene observed blood, smelled alcohol, and found Black unresponsive; EMS transported him to the hospital where he was treated and later arrested once medically cleared.
Hospital blood testing produced a very high alcohol concentration (.264 BAC reported); urine tested positive for cocaine; treating physician’s primary impression was acute alcohol intoxication.
Defense sought a continuance on the morning of trial to locate an alleged alternative driver (Gregory Don Winkler); the oral, unsworn motion was denied and the defense continued to investigate during trial.
At trial the jury convicted Black of DWI and found an elevated BAC; Black appealed, arguing insufficient evidence that he was the “operator” and that the court abused its discretion in denying the continuance.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Black)	Held
Sufficiency: Was there legally sufficient evidence that Black "operated" the vehicle?	Evidence (slumped in driver seat, keys in ignition, vehicle registered to Black, taken from driver door to ambulance, high BAC) supports a reasonable inference he operated the vehicle.	Black contended he was not the driver and an alternative driver existed; witness testimony did not establish operation beyond a reasonable doubt.	Court holds the evidence was legally sufficient under the totality-of-the-circumstances test to infer operation.
Continuance preservation and abuse of discretion: Did denial of an oral continuance preserve error or constitute reversible abuse?	The continuance was oral and unsworn, so it preserved nothing for appeal under article 29.03; no motion for new trial was filed to preserve the issue; alternatively, denial was within trial court discretion.	Black argued denial prejudiced his defense because a potentially exculpatory witness could not be located.	Court holds Black failed to preserve error (oral unsworn motion; no new-trial motion) and, alternatively, that denial did not show an abuse of discretion.

Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing legal sufficiency of evidence)
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (deference to jury in weighing credibility and resolving conflicts)
Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) (look to totality of circumstances to determine "operating")
Priego v. State, 457 S.W.3d 565 (Tex. App.—Texarkana 2015) (application of broad "operating" interpretation under totality-of-circumstances)
Blackshear v. State, 385 S.W.3d 589 (Tex. Crim. App. 2012) (unsworn oral continuance motions preserve nothing for appeal)