Page 103 - TPA - A Peace Officer's Guide to Texas Law 2015

ARREST DWI OPERATING A VEHICLE?

Appellant, was charged with misdemeanor driving while intoxicated and was convicted by a jury. He was
sentenced to one-year confinement in the county jail and ordered to pay a $1,000 fine. His sentence of
confinement was suspended, and Appellant was placed on community supervision for two years. On appeal,
Appellant argued that there was insufficient evidence adduced at trial to prove beyond a reasonable doubt that,
for purposes of the DWI statute, he was operating a vehicle. The court of appeals agreed, reversed the judgment
below, and rendered an acquittal. REVERSED.

The sole question for our review is whether a driver who is passed out behind the wheel of a running
vehicle [is] operating it for the purposes of DWI?

The record shows that Appellants vehicle engine was running, that he was in the driver s seat, that he
was the only person in the vehicle, and he was the only person in the vicinity. It also shows that there were no
alcoholic beverages or containers in the area. McClanahan testified that, as soon as Appellant rolled down the
driver side window, he could immediately smell alcohol, and he thought Appellant was very intoxicated based
on his observations. Those observations included that Appellants actions were sluggish, his speech was
impaired, and he could not remove his driver s license from his wallet, although he tried and failed multiple
times. McClanahan testified that, when he asked Appellant for identification, Appellant pulled business cards
out of his wallet and tried to hand them to him, and when McClanahan told Appellant that those were business
cards, Appellant handed him a folded $100 bill from his wallet. McClanahan told Appellant he did not want his
money, and ultimately, he had to remove the driver s license from Appellants wallet. Based on Appellants
admission that he had been drinking, McClanahans observation that Appellant appeared very intoxicated, and
the fact that no alcoholic beverages were found in the vicinity, a fact finder could have reasonably inferred that
Appellant consumed alcoholic beverages to the point of intoxication somewhere other than where he was found.
Furthermore, because Appellant was the only person found in the area, a fact finder could have also reasonably
inferred that Appellant drove his vehicle to the location at which he was found after drinking to intoxication.

Murray v. State, Tex. Crim. App. April 15 , 2015, PD-1230-14
th

MISC. OFFENSES

ARMED ROBBERY ELEMENTS. THREAT. PLACE IN FEAR. PERCEPTION OF VICTIM.

The victim of the crime, Rosalee Johnson, was an eighty-three year-old owner of, and clerk, at a Shell
Super Stop in San Marcos, Texas. Appellant (Boston) entered the store with Jacob Hemphill. Hemphill went to
the coffee station in the store. Appellant went to the counter and distracted Johnson. Once the last customer left
Hemphill approached the counter with a soda and coffee. He set the soda and coffee on the counter by the
register, pulled out money, and handed the money to Johnson to pay for his purchase. After handing Johnson the
money, Hemphill reached into one of his pockets and pulled out a firearm, which he dropped on the floor. Boston
walked by and looked at the firearm but did not pick it up. Hemphill then picked up the firearm, briefly pointed
it at the clerk, and set it on the counter pointed at the clerk. Johnson, however, did not see the firearm and rang
up the sale of the soda and coffee. When the register was open, Hemphill reached over the counter and took
money from the cash register with both hands. The clerk grabbed his hands to stop him, but he pulled away.
Leaving the soda and coffee, Hemphill grabbed his firearm, and Boston and Hemphill ran out of the store
together. Johnson yelled to the other employee in the back, Ive been robbed, please come and call the police[,]
and she ran outside after Appellant and Hemphill. The other employee called the police. When asked if
Appellant threatened her, she stated that the robbers didnt say anything. When asked if she perceived
Hemphills actions as threatening, Johnson stated that putting a firearm on the counter is threatening behavior,
but she conceded that she never saw the firearm. She also testified that, during the robbery, she feared that she

A Peace Officer’s Guide to Texas Law 96 2015 Edition