Reddie v. StateReddie v. State
BUTTS, Justice.
Following a jury trial, appellant was convicted of driving while intoxicated. The court‘s sentence was two years’ imprisonment, probated, and a fine of $300.00. In three points of error, appellant challenges the sufficiency of the evidence to support the conviction.
Two teenagers and the mother of one testified that about 9:30 p.m. on July 1, 1986, they saw appellant slumped over the steering wheel of a car. The motor was idling. The automobile was parked in the middle of the road leading into a new residential subdivision outside the San Antonio city limits. These witnesses further testified that appellant smelled strongly of alcohol. No officer testified and no tests were administered to determine if appellant was intoxicated.
One of the witnesses, Mrs. Frizzell, testified that she had driven past the location at approximately 7:00 p.m., and the car had not been parked there at that time. No one knеw how long the car had been parked in the road, or how long appellant had been sitting in it or how long he may have been intoxicated.
In reviewing the sufficiency of the evidence to sustain the conviсtion this court views the evidence in the light most favorable to the verdict. We must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); McGoldrick v. State, 682 S.W.2d 573, 577 (Tex.Crim.App.1985).
In order to sustain a conviction for driving while intoxicated the State must show that appellant (1) was intoxicated (2) while driving or operating a motor vehicle (3) in a public place.
While some evidence showed that appellant may have beеn intoxicated in a public place, there was no evidence that appellant was intoxicated while driving to the scene. See, e.g., Duran v. State, 171 Tex.Crim. 535, 352 S.W.2d 739 (Tex.Crim.App.1962).
The State contends that appellant was operating the car within the meaning of the stаtute when he was found sleeping behind the wheel with the engine running. They cite Keenan v. State, 700 S.W.2d 12 (Tex. App.—Amarillo 1985, no writ).
The Keenan court concerned itself with proof that the defendant was intoxicated at the time he operated the vehicle. In fact, the lаpse of time weighed heavily in that decision. From the time that a witness saw the pickup partially blocking the lane of traffic with fumes coming from the tailpipe until he went to town for aid (about two minutes), returning to the scene, only a short time (“not great“) had elapsed. Only the defendant was seen in the vehicle in the short time span. The pickup partially blocked a traffic lane on a busy highway so that a collision resulted when the summoned officer pulled his police vehicle in behind the pickup. The court found the evidence sufficient to show that the defendant was the only person in the pickup before and after the collision. The court noted the short time span to conclude that the defendant “operated the vehicle during the period of intoxication.” However, the court equated operate with drive: “The main issue for оur resolution is whether [the defendant] was, in fact, driving while he was intoxicated.” The court found that the evidence was sufficient to show the defendant was driving the vehicle. The facts in Keenan may be compared to Thomas v. State, 283 S.W.2d 933 (Tex. Crim.App.1955) and Hughes v. State, 276 S.W.2d 813 (Tex.Crim.App.1955).
The facts in the present casе must be distinguished. Here the witnesses admit they did not see when appellant arrived. They did not know whether another person had been in the car. They did not know whether appellant was the driver when the car got there. They could not say how long appellant had been in the car. As noted earlier, no officer testified, and no proof of ownership of the automobile was made. Moreover, there is no proof to show that appellant was intoxicated when he arrived on the scene or when he may have become intoxicated.
There is insufficient evidence that appellant was actually driving. The question, therefore, becomes whether he was “operating” the vehicle when witnesses saw him slumped over the steering wheel, asleep, with the engine running and the gear in “park.” No one saw apрellant parking the car, manipulating the gear or ignition. Further the car may have been located there in the subdivision outside the San Antonio city limits at least two or more hours.
The word “operate” in the Tеxas DWI statute has not been defined.
In construing a statute courts must first analyze the language of the statute itself.
This is not to ignore the obvious inference that a person such as appellant, who is found sleeping in a car with the motor running may have operated the car at some point in time. However, this evidence alone is no indiсation that the person operated the car while intoxicated. The fact that the motor is running and the gear is in the park position supports an inference that the person found intoxicated and sleeping behind the wheel caused the car to function in this way at some time. We conclude there exist other reasonable hypotheses. Without knowing how long the car had been at that place, or when the sleeping occupant became intoxicated, or even that the person was the one who drove the car and parked it there, we cannot infer that he drove or operated the car while intoxicated.
STATUTORY DEFINITION
In some states if a person is found sitting behind the wheel of a vehicle with the engine running, it may be sufficient to constitute “operation.” See 1 DEFENSE OF DRUNK DRIVING CASES § 1, 1-7 (Matthew Bender 3rd ed. 1987). However, in many of these states the word “operate” is statutorily defined. For instance, in Missouri, a finding that a person operated a motor vehicle while intoxicated will support a conviction of driving while intoxicated.
Further, decisions in these states clearly show that defining “operate” to mean “actual physical control” substantially broadens the scope of the term. See State v. Williams, 20 Ohio Misc. 51, 251 N.E.2d 714 (Ohio Mun.1969).
In Williams the dеfendant was found sitting in his car behind the steering wheel with the motor running. None of the witnesses ever saw the car in motion. Williams was intoxicated. In holding that evidence was insufficient to show that Williams had been operating thе vehicle while intoxicated, the court pointed out that:
[O]n at least three occasions the Ohio Legislature has acted on statutes dealing
with operating a motor vehicle while under the influence of alcohol. As will be noted, the 1936 statute made no mention of `being in physical contrоl.’ The 1941 statute added the words, `being in actual physical control,’ thus broadening the coverage of the statute to include persons found sitting behind the wheel of a stationary automobile, ...
Id. at 717; State v. Wilgus, 31 O.O. 443 (1945). However, the court then observed that the statute under which Williams was convicted did not contain the words “being in actual physical control.” Id. 251 N.E.2d at 717-18;
We hold that in order to prove that appellant operated the vehicle while intoxicated under article 6701-1(b), absent an otherwise controlling definition, evidence must show that while intoxicated he exerted personal effort to cause the vehicle to function. There was no evidence to prove appellant was intoxicatеd before the vehicle was placed there. There was no evidence as to when appellant became intoxicated or that he was intoxicated at the time he performed an act to affect the functioning of the vehicle.2
The three points of error are sustained. The evidence does not support a conviction of the offense of driving or operating a vehiclе while intoxicated. The judgment is reversed and the case remanded for the purpose of entry of a judgment of acquittal.