MEMORANDUM OPINION No. 04-11-00397-CR
Anthony Eugene SHIELDS, Appellant
v.
The STATE of Texas, Appellee
From the County Court at Law No. 2, Bexar County, Texas Trial Court No. 980448 Honorable Jason Wolff, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice
Delivered and Filed: January 25, 2012
AFFIRMED
Appellant Anthony Eugene Shields was convicted of the misdemeanor offense of driving
while intoxicated (DWI). In his sole issue on appeal, Shields contends the evidence was legally
insufficient to support the verdict because the State failed to prove beyond a reasonable doubt
that he operated a vehicle or that he was intoxicated. We affirm the trial court’s judgment. 04-11-00397-CR
BACKGROUND
On September 9, 2006, at approximately 12:25 a.m., Officer Johnny Salinas responded to
a report of a sleeping, ill, or unconscious driver parked between traffic lanes at a highway
intersection. Officer Salinas approached the vehicle and found Shields unconscious in the
driver’s seat and observed the vehicle’s engine was running. Salinas testified that Shields’s car
was straddling two lanes of traffic near a traffic light. Salinas tapped on the vehicle’s window to
wake Shields. Salinas observed that Shields had bloodshot eyes, slurred speech, and the strong
smell of alcohol on him. Salinas detained Shields and escorted him to the San Antonio
Magistrate’s Office to administer standardized field sobriety tests (SFSTs) and to administer a
Breathalyzer test to determine Shields’s blood-alcohol concentration. Shields refused to perform
the SFSTs and refused to provide a breath sample.
The case proceeded to trial four years and eight months after the alleged offense. The
State’s only witness was Officer Salinas. Because of the considerable time span between the
alleged offense and the trial, Salinas relied considerably on his written report. Despite some
inconsistencies in Salinas’s report, the jury found Shields guilty. Shields appeals his conviction.
LEGAL SUFFICIENCY
Shields contends there was insufficient evidence to support the jury’s guilty verdict
because the State did not prove beyond a reasonable doubt that Shields operated his vehicle or
that he was intoxicated.
A. Standard of Review
A reviewing court determines legal sufficiency by “[c]onsidering all of the evidence in
the light most favorable to the verdict” to determine whether the trier of fact was “rationally
justified in finding guilt beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 899
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(Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard
requires an appellate court to defer to the factfinder’s credibility and weight determinations. Id.;
see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979). “‘Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence
alone can be sufficient to establish guilt.’” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Therefore, we
apply the same standard of review to direct and circumstantial evidence. Hooper v. State, 214
S.W.3d at 13.
B. Driving While Intoxicated
A person commits the offense of DWI “if the person is intoxicated while operating a
motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04 (West 2011); 1 Sierra v. State,
280 S.W.3d 250, 254 (Tex. Crim. App. 2009). “Intoxicated” is defined as “not having the
normal use of mental or physical faculties by reason of the introduction of alcohol,” or “having
an alcohol concentration of 0.08 or more.” TEX. PENAL CODE ANN. § 49.01; Sierra, 280 S.W.3d
at 254. Evidence that a person refused to submit to a breath test is admissible at the defendant’s
trial for DWI. TEX. TRANSP. CODE ANN. § 724.061 (West 2011); Bartlett v. State, 270 S.W.3d
147, 149 (Tex. Crim. App. 2008). Additionally, intoxication can be proven circumstantially by
evidence of a defendant’s bloodshot eyes, slurred speech, strong odor of alcohol on the person,
and difficulty standing. See Cotton v. State, 686 S.W.2d 140, 142 & n.3 (Tex. Crim. App. 1985)
(providing a non-exhaustive list of evidence of intoxication); see also Kuciemba v. State, 310
S.W.3d 460, 461 (Tex. Crim. App. 2010).
1 The legislature recently amended section 49.04. Act of June 17, 2011, 82d Leg., R.S., ch. 960, § 2, 2011 Tex. Sess. Law Serv. 2413. These amendments apply only to DWI offenses committed on or after September 1, 2011. Id.
-3- 04-11-00397-CR
A defendant is determined to have “operated” a vehicle if “the totality of the
circumstances . . . 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). The State must prove “a temporal link between the . . . defendant’s
intoxication and his [operation of a vehicle].” Kuciemba, 310 S.W.3d at 462.
C. Analysis
According to Officer Salinas’s testimony, Shields was seated in the driver’s seat of his
vehicle, which was in a public place. Thus, the issue in this case is whether there was legally
sufficient evidence to establish that Shields operated his vehicle while intoxicated.
1. Evidence that Shields was intoxicated
Salinas testified that Shields had bloodshot eyes, had slurred speech, had a strong smell
of alcohol on him, and staggered as he exited the vehicle. See Cotton, 686 S.W.2d at 142 & n.3.
Additionally, Salinas testified that Shields refused to submit a breath sample that would
determine his blood-alcohol concentration. See TEX. TRANSP. CODE ANN. § 724.061; Bartlett,
270 S.W.3d at 149. Considering the evidence in a light most favorable to the verdict, the
evidence was legally sufficient to support the jury’s finding that Shields was intoxicated. Cf.
Brooks, 323 S.W.3d at 899.
2. Evidence that Shields “operated” his vehicle while intoxicated
Shields contends the evidence is insufficient to establish he operated a vehicle. He
admits to being asleep in an idling vehicle; however, he argues that because his car was not in
gear and his foot was not touching the accelerator or brake pedals, there was no evidence of
operation. Shields relies primarily on Reddie to support his argument. Reddie v. State, 736
S.W.2d 923, 926 (Tex. App.—San Antonio 1987, pet. ref’d). In Reddie, this court determined
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that a person found sleeping or unconscious in a running vehicle in the “park” position supports
an inference that an intoxicated person “caused the car to function in this way at some time.” Id.
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MEMORANDUM OPINION No. 04-11-00397-CR
Anthony Eugene SHIELDS, Appellant
v.
The STATE of Texas, Appellee
From the County Court at Law No. 2, Bexar County, Texas Trial Court No. 980448 Honorable Jason Wolff, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice
Delivered and Filed: January 25, 2012
AFFIRMED
Appellant Anthony Eugene Shields was convicted of the misdemeanor offense of driving
while intoxicated (DWI). In his sole issue on appeal, Shields contends the evidence was legally
insufficient to support the verdict because the State failed to prove beyond a reasonable doubt
that he operated a vehicle or that he was intoxicated. We affirm the trial court’s judgment. 04-11-00397-CR
BACKGROUND
On September 9, 2006, at approximately 12:25 a.m., Officer Johnny Salinas responded to
a report of a sleeping, ill, or unconscious driver parked between traffic lanes at a highway
intersection. Officer Salinas approached the vehicle and found Shields unconscious in the
driver’s seat and observed the vehicle’s engine was running. Salinas testified that Shields’s car
was straddling two lanes of traffic near a traffic light. Salinas tapped on the vehicle’s window to
wake Shields. Salinas observed that Shields had bloodshot eyes, slurred speech, and the strong
smell of alcohol on him. Salinas detained Shields and escorted him to the San Antonio
Magistrate’s Office to administer standardized field sobriety tests (SFSTs) and to administer a
Breathalyzer test to determine Shields’s blood-alcohol concentration. Shields refused to perform
the SFSTs and refused to provide a breath sample.
The case proceeded to trial four years and eight months after the alleged offense. The
State’s only witness was Officer Salinas. Because of the considerable time span between the
alleged offense and the trial, Salinas relied considerably on his written report. Despite some
inconsistencies in Salinas’s report, the jury found Shields guilty. Shields appeals his conviction.
LEGAL SUFFICIENCY
Shields contends there was insufficient evidence to support the jury’s guilty verdict
because the State did not prove beyond a reasonable doubt that Shields operated his vehicle or
that he was intoxicated.
A. Standard of Review
A reviewing court determines legal sufficiency by “[c]onsidering all of the evidence in
the light most favorable to the verdict” to determine whether the trier of fact was “rationally
justified in finding guilt beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 899
-2- 04-11-00397-CR
(Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard
requires an appellate court to defer to the factfinder’s credibility and weight determinations. Id.;
see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979). “‘Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence
alone can be sufficient to establish guilt.’” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Therefore, we
apply the same standard of review to direct and circumstantial evidence. Hooper v. State, 214
S.W.3d at 13.
B. Driving While Intoxicated
A person commits the offense of DWI “if the person is intoxicated while operating a
motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04 (West 2011); 1 Sierra v. State,
280 S.W.3d 250, 254 (Tex. Crim. App. 2009). “Intoxicated” is defined as “not having the
normal use of mental or physical faculties by reason of the introduction of alcohol,” or “having
an alcohol concentration of 0.08 or more.” TEX. PENAL CODE ANN. § 49.01; Sierra, 280 S.W.3d
at 254. Evidence that a person refused to submit to a breath test is admissible at the defendant’s
trial for DWI. TEX. TRANSP. CODE ANN. § 724.061 (West 2011); Bartlett v. State, 270 S.W.3d
147, 149 (Tex. Crim. App. 2008). Additionally, intoxication can be proven circumstantially by
evidence of a defendant’s bloodshot eyes, slurred speech, strong odor of alcohol on the person,
and difficulty standing. See Cotton v. State, 686 S.W.2d 140, 142 & n.3 (Tex. Crim. App. 1985)
(providing a non-exhaustive list of evidence of intoxication); see also Kuciemba v. State, 310
S.W.3d 460, 461 (Tex. Crim. App. 2010).
1 The legislature recently amended section 49.04. Act of June 17, 2011, 82d Leg., R.S., ch. 960, § 2, 2011 Tex. Sess. Law Serv. 2413. These amendments apply only to DWI offenses committed on or after September 1, 2011. Id.
-3- 04-11-00397-CR
A defendant is determined to have “operated” a vehicle if “the totality of the
circumstances . . . 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). The State must prove “a temporal link between the . . . defendant’s
intoxication and his [operation of a vehicle].” Kuciemba, 310 S.W.3d at 462.
C. Analysis
According to Officer Salinas’s testimony, Shields was seated in the driver’s seat of his
vehicle, which was in a public place. Thus, the issue in this case is whether there was legally
sufficient evidence to establish that Shields operated his vehicle while intoxicated.
1. Evidence that Shields was intoxicated
Salinas testified that Shields had bloodshot eyes, had slurred speech, had a strong smell
of alcohol on him, and staggered as he exited the vehicle. See Cotton, 686 S.W.2d at 142 & n.3.
Additionally, Salinas testified that Shields refused to submit a breath sample that would
determine his blood-alcohol concentration. See TEX. TRANSP. CODE ANN. § 724.061; Bartlett,
270 S.W.3d at 149. Considering the evidence in a light most favorable to the verdict, the
evidence was legally sufficient to support the jury’s finding that Shields was intoxicated. Cf.
Brooks, 323 S.W.3d at 899.
2. Evidence that Shields “operated” his vehicle while intoxicated
Shields contends the evidence is insufficient to establish he operated a vehicle. He
admits to being asleep in an idling vehicle; however, he argues that because his car was not in
gear and his foot was not touching the accelerator or brake pedals, there was no evidence of
operation. Shields relies primarily on Reddie to support his argument. Reddie v. State, 736
S.W.2d 923, 926 (Tex. App.—San Antonio 1987, pet. ref’d). In Reddie, this court determined
-4- 04-11-00397-CR
that a person found sleeping or unconscious in a running vehicle in the “park” position supports
an inference that an intoxicated person “caused the car to function in this way at some time.” Id.
However, we held that the evidence did not support a conviction for DWI because “there
exist[ed] other reasonable hypotheses.” Id. at 926–27 (emphasis added).
After Geesa, Shields’s reliance on Reddie is misplaced. Several years after we decided
Reddie, the court of criminal appeals brought an end to the “reasonable hypothesis analytical
construct.” Geesa v. State, 820 S.W.2d 154, 155, 159 (Tex. Crim. App. 1991), overruled on
other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). The reasonable
hypothesis analytical construct required that “[a] conviction based on circumstantial evidence
must exclude every other reasonable hypothesis except the guilt of the accused.” Carlsen v.
State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983), overruled by Geesa, 820 S.W.2d at 161.
The court in Geesa abolished this construct because it “effectively places the reviewing court in
the posture of a ‘thirteenth juror.’” Geesa, 820 S.W.2d at 159. Following Geesa, at least one
federal court and five of our sister courts have recognized that Reddie is no longer good law or is
not controlling and of limited value. 2 We agree and hold that Reddie is no longer controlling to
the extent it relied on the reasonable hypothesis analytical construct.
The facts in Shields’s case are similar to a post-Geesa case decided by the First Court of
Appeals. See Hearne v. State, 80 S.W.3d 677, 678–79 (Tex. App.—Houston [1st Dist.] 2002, no
pet.). There, the driver argued the evidence was insufficient to support a DWI conviction
because the State failed to prove he operated his vehicle. Id. at 679. A police officer, patrolling
2 United States v. Oliva, No. C-09-341, 2009 WL 1918458, at *2 (S.D. Tex. July 1, 2009); Benedict v. State, No. 02- 03-00310-CR, 2004 WL 2108837, at *5 (Tex. App.—Fort Worth Sept. 23, 2004, pet. ref’d) (mem. op., not designated for publication); Barton v. State, 882 S.W.2d 456, 458 (Tex. App.—Dallas 1994, no pet.); Purvis v. State, 4 S.W.3d 118, 120 n.1 (Tex. App.—Waco 1999, no pet.); Frohwein v. State, No. 08-03-00488-CR, 2005 WL 1413210, at *4 (Tex. App.—El Paso June 16, 2005, pet. ref’d) (not designated for publication); Drake v. State, No. 03-02-00809-CR, 2004 WL 962846, at *2 (Tex. App.—Austin May 6, 2004, no pet.) (mem. op., not designated for publication).
-5- 04-11-00397-CR
early in the morning, saw a vehicle parked in a moving lane of traffic. Id. at 678–79. The
sleeping driver was seated in the driver’s seat of the vehicle, and the vehicle’s engine was
running but the gear selector was in the “park” position. Id. at 679. The driver’s feet were not
touching the accelerator or brake pedals, nor were his hands touching any switches or the
steering wheel. Id. The officer was unable to testify as to how long the vehicle had been parked
and admitted “he did not see appellant ‘exert any action, movement or anything to attempt to
control’ the truck.” Id. The driver stipulated that he was legally intoxicated at the time but
denied operating the vehicle while intoxicated. Id. The court held that these facts could allow a
jury to reasonably infer the driver had operated his vehicle while intoxicated. Id. at 680.
Based on the facts of Shields’s case, that the vehicle was parked between two moving
lanes of traffic in the early morning hours, the car’s engine was running, and Shields was alone
in the vehicle and was seated in the driver’s seat, we conclude the evidence was legally sufficient
to support the finding that Shields operated his vehicle while intoxicated. See Hearne, 80
S.W.3d at 678–80; Freeman v. State, 69 S.W.3d 374, 375 (Tex. App.—Dallas 2002, no pet.); cf.
Kuciemba, 310 S.W.3d at 462 (requiring a temporal link between a defendant’s operation of a
vehicle and his intoxication); Scillitani v. State, 343 S.W.3d 914, 917 (Tex. App.—Houston
[14th Dist.] 2011, pet. filed).
CONCLUSION
Considering the evidence in a light most favorable to the verdict, as we must, the
evidence was legally sufficient to support Shields’s conviction for DWI. See Jackson, 443 U.S.
at 319; Brooks, 323 S.W.3d at 899. The evidence is legally sufficient to support the finding that
Shields operated his vehicle while intoxicated in a public place. See TEX. PENAL CODE ANN.
-6- 04-11-00397-CR
§ 49.04; Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). Therefore, we affirm the
trial court’s judgment.
Rebecca Simmons, Justice
DO NOT PUBLISH
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