Marisol Priego v. State
2015 Tex. App. LEXIS 1464
| Tex. App. | 2015Background
- Marisol Priego was convicted of DWI (third or more) after being found unconscious in the driver’s seat of her idling truck in a public parking lot with a partially consumed whiskey bottle on the floorboard and a BAC of .478 from a blood draw at 6:15 p.m.
- Evidence showed Priego went from Walmart to a nearby liquor store, had a stranger buy two bottles of whiskey for her, parked at C W Ford Rentals between about 4:00–5:00 p.m., drank whiskey in the truck, and later lost consciousness.
- Witnesses found Priego unresponsive with the engine running and her seatbelt fastened; no one else was shown to have operated the vehicle.
- Priego contended the State failed to prove she "operated" the vehicle while intoxicated; the State relied on circumstantial evidence and inferences from the totality of circumstances.
- Trial court convicted and sentenced Priego to ten years’ incarceration; on appeal she challenged legal sufficiency and asked the court to remove a future attorney-fee notation from the judgment because she was indigent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence is legally sufficient to prove Priego "operated" the vehicle while intoxicated | Priego: No direct evidence she drank before or while driving; idling in parking lot is insufficient | State: Circumstantial evidence (engine running, seatbelt, bottle, timeline, sole occupant) permits reasonable inference she operated while intoxicated | Court: Evidence legally sufficient under totality of circumstances; jury could infer operation |
| Whether a finding of indigence bars future assessment of attorney fees (TBD on judgment) | Priego: Judgment ordering attorney fees "TBD" is improper because she was adjudged indigent and remains indigent | State: Did not dispute indigence; no showing of changed circumstances | Court: Modified judgment to delete "TBD" and assess zero attorney fees (present determination required) |
Key Cases Cited
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (legal-sufficiency standard under Jackson reviewed in light of Brooks)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of the evidence)
- Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) (use totality of circumstances to assess "operating")
- Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995) (operation can be broader than driving; action enabling vehicle use suffices)
- Kuciemba v. State, 310 S.W.3d 460 (Tex. Crim. App. 2010) (temporal link requirement between operation and intoxication)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (hypothetically correct jury charge governs sufficiency analysis)
- Dornbusch v. State, 262 S.W.3d 432 (Tex. App.—Fort Worth 2008) (parking lot is a public place for DWI purposes)
- Hearne v. State, 80 S.W.3d 677 (Tex. App.—Houston [1st Dist.] 2002) (jury may infer operation where defendant found asleep in idling vehicle)
- Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013) (court must determine financial resources presently; cannot speculate about future ability to pay)