In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-16-00067-CR _________________
HAROLD THOMAS MABRY, Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the County Court at Law No. 4 Montgomery County, Texas Trial Cause No. 15-307361 ________________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant, Harold Thomas Mabry, of the misdemeanor
offense of Boating While Intoxicated (“BWI”). See Tex. Pen. Code Ann. § 49.06(a)
(West 2011). Mabry appeals, and in his sole appellate issue, complains that the
evidence is legally and factually insufficient to sustain his conviction. We affirm the
trial court’s judgment.
1 Background
At around 9:00 p.m., on the evening of July 3, 2015, a deputy constable with
the marine patrol division of the Montgomery County Constable's Office was
traveling eastbound by boat toward a public dock on Lake Conroe when he witnessed
another boat traveling west toward the main open lake area. Because the other boat
was operating with no navigational lights, the deputy initiated his own blue overhead
police lights to stop the boat and his white takedown light to observe inside the boat.
After the deputy turned on his light, he observed Mabry, who was seated in the
driver’s seat of the other boat at the time, stand up, shift the boat into neutral, and
engage the boat’s front navigation lights. Another male and two females were aboard
Mabry’s boat as well. The deputy pulled up to Mabry’s boat and made contact with
him and the other passengers. Upon administering standardized field sobriety tests,
the deputy determined that Mabry was intoxicated beyond legal limits and placed
him under arrest. Results of a blood test would later indicate that Mabry’s blood
alcohol content was 0.214, well over the legal limit. See Tex. Pen. Code Ann. §
49.01(2)(B) (West 2011) (defining intoxicated as “having an alcohol concentration
of 0.08 or more”). As Mabry was being transported to the jail, he claimed, for the
first time, that he had not been the one operating the boat.
2 The State originally charged Mabry by information with the misdemeanor
offense of boating while intoxicated, alleging that “on or about July 3, 2015, in
Montgomery County, Texas, HAROLD THOMAS MABRY . . ., while operating a
watercraft in a public place1, was then and there intoxicated[.]” The information
further alleged that Mabry was previously convicted of driving while intoxicated,
enhancing the offense from a Class B misdemeanor to a Class A misdemeanor. See
Tex. Pen. Code Ann. § 49.09(a) (West Supp. 2016). The jury found Mabry guilty of
the offense as charged, and punishment was assessed by the court. At the punishment
phase, Mabry pled true to the enhancement paragraph of prior conviction. The trial
court sentenced Mabry to confinement in the Montgomery County Jail for a period
of one year, but suspended the sentence and placed him on community supervision
for two years and assessed a fine of $1,500. This appeal timely followed.
Sufficiency of the Evidence
In his sole issue on appeal, Mabry contends that the evidence is legally and
factually insufficient to support the jury’s guilty verdict. In examining the
sufficiency of evidence supporting a jury’s verdict of guilt, we view the combined
logical force of all admitted evidence in the light most favorable to the prosecution
1 Prior to trial, the State abandoned the language “in a public place” from the information without objection. 3 to determine whether any rational trier of fact could find the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “Direct evidence
and circumstantial evidence are equally probative, and circumstantial evidence alone
may be sufficient to uphold a conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Ramsey v. State,
473 S.W.3d 805, 809 (Tex. Crim. App. 2015).
A person commits the offense of boating while intoxicated if he “is intoxicated
while operating a watercraft.” Tex. Pen. Code Ann. § 49.06(a). Mabry conceded at
trial that he was intoxicated at the time of his arrest; however, he argues that the
evidence was insufficient to establish that he was operating the watercraft. The Penal
Code does not define the term “operating”; therefore, the word must “be read in
context and construed according to the rules of grammar and common usage.” Tex.
Gov’t Code Ann. § 311.011(a) (West 2013). With that guidance, the Court of
Criminal Appeals “has concluded that a person ‘operates’ a vehicle when ‘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.”
Kirsch v. State, 357 S.W.3d 645, 650–51 (Tex. Crim. App. 2012) (quoting Denton
v. State, 911 S.W.3d 388, 390 (Tex. Crim. App. 1995)).
4 In this case, the deputy that arrested Mabry testified that when he initially
observed Mabry’s boat, it was “traveling west out toward the main open lake area.”
He testified that he observed Mabry seated in the operator’s seat and that when he
turned on his police lights, he watched Mabry stand from the driver’s seat, “punch
the switch on his vessel and initiate the front navigation lights,” and shift the boat
into neutral. The deputy stated that he observed other individuals on the boat, but
that his focus was on Mabry, “who [he] observed operating the vessel.”
Much of the deputy’s testimony was disputed by Tammie Lambert, one of the
other occupants of the boat on the evening of Mabry’s arrest, who testified on
Mabry’s behalf. She testified that the group had gotten into Mabry’s boat after
leaving a friend’s house and had pushed away from the dock, but they had an issue
with the navigational lights not working, “so they were working with that.” She
testified that the other male passenger, Patrick Prentice, had been taking turns with
Mabry throughout the day driving the boat and that once they got the lights working,
Prentice was going to drive the boat because he had not had as much to drink. She
stated that at the time the deputy arrived, no one had driven the boat since they left
their friend’s house and that they were “just floating.” She claimed that Mabry was
not in the operator’s seat at the time of the stop. She also claimed that the boat was
never put in gear and that she did not recall the engine even being on.
5 In our review of the evidence, we must defer to the jury’s factual findings and
resolve all reasonable inferences in favor of their verdict because the jury is the sole
judge of the witnesses’ credibility and the weight to be afforded to the testimony of
each witness. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App.
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In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-16-00067-CR _________________
HAROLD THOMAS MABRY, Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the County Court at Law No. 4 Montgomery County, Texas Trial Cause No. 15-307361 ________________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant, Harold Thomas Mabry, of the misdemeanor
offense of Boating While Intoxicated (“BWI”). See Tex. Pen. Code Ann. § 49.06(a)
(West 2011). Mabry appeals, and in his sole appellate issue, complains that the
evidence is legally and factually insufficient to sustain his conviction. We affirm the
trial court’s judgment.
1 Background
At around 9:00 p.m., on the evening of July 3, 2015, a deputy constable with
the marine patrol division of the Montgomery County Constable's Office was
traveling eastbound by boat toward a public dock on Lake Conroe when he witnessed
another boat traveling west toward the main open lake area. Because the other boat
was operating with no navigational lights, the deputy initiated his own blue overhead
police lights to stop the boat and his white takedown light to observe inside the boat.
After the deputy turned on his light, he observed Mabry, who was seated in the
driver’s seat of the other boat at the time, stand up, shift the boat into neutral, and
engage the boat’s front navigation lights. Another male and two females were aboard
Mabry’s boat as well. The deputy pulled up to Mabry’s boat and made contact with
him and the other passengers. Upon administering standardized field sobriety tests,
the deputy determined that Mabry was intoxicated beyond legal limits and placed
him under arrest. Results of a blood test would later indicate that Mabry’s blood
alcohol content was 0.214, well over the legal limit. See Tex. Pen. Code Ann. §
49.01(2)(B) (West 2011) (defining intoxicated as “having an alcohol concentration
of 0.08 or more”). As Mabry was being transported to the jail, he claimed, for the
first time, that he had not been the one operating the boat.
2 The State originally charged Mabry by information with the misdemeanor
offense of boating while intoxicated, alleging that “on or about July 3, 2015, in
Montgomery County, Texas, HAROLD THOMAS MABRY . . ., while operating a
watercraft in a public place1, was then and there intoxicated[.]” The information
further alleged that Mabry was previously convicted of driving while intoxicated,
enhancing the offense from a Class B misdemeanor to a Class A misdemeanor. See
Tex. Pen. Code Ann. § 49.09(a) (West Supp. 2016). The jury found Mabry guilty of
the offense as charged, and punishment was assessed by the court. At the punishment
phase, Mabry pled true to the enhancement paragraph of prior conviction. The trial
court sentenced Mabry to confinement in the Montgomery County Jail for a period
of one year, but suspended the sentence and placed him on community supervision
for two years and assessed a fine of $1,500. This appeal timely followed.
Sufficiency of the Evidence
In his sole issue on appeal, Mabry contends that the evidence is legally and
factually insufficient to support the jury’s guilty verdict. In examining the
sufficiency of evidence supporting a jury’s verdict of guilt, we view the combined
logical force of all admitted evidence in the light most favorable to the prosecution
1 Prior to trial, the State abandoned the language “in a public place” from the information without objection. 3 to determine whether any rational trier of fact could find the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “Direct evidence
and circumstantial evidence are equally probative, and circumstantial evidence alone
may be sufficient to uphold a conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Ramsey v. State,
473 S.W.3d 805, 809 (Tex. Crim. App. 2015).
A person commits the offense of boating while intoxicated if he “is intoxicated
while operating a watercraft.” Tex. Pen. Code Ann. § 49.06(a). Mabry conceded at
trial that he was intoxicated at the time of his arrest; however, he argues that the
evidence was insufficient to establish that he was operating the watercraft. The Penal
Code does not define the term “operating”; therefore, the word must “be read in
context and construed according to the rules of grammar and common usage.” Tex.
Gov’t Code Ann. § 311.011(a) (West 2013). With that guidance, the Court of
Criminal Appeals “has concluded that a person ‘operates’ a vehicle when ‘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.”
Kirsch v. State, 357 S.W.3d 645, 650–51 (Tex. Crim. App. 2012) (quoting Denton
v. State, 911 S.W.3d 388, 390 (Tex. Crim. App. 1995)).
4 In this case, the deputy that arrested Mabry testified that when he initially
observed Mabry’s boat, it was “traveling west out toward the main open lake area.”
He testified that he observed Mabry seated in the operator’s seat and that when he
turned on his police lights, he watched Mabry stand from the driver’s seat, “punch
the switch on his vessel and initiate the front navigation lights,” and shift the boat
into neutral. The deputy stated that he observed other individuals on the boat, but
that his focus was on Mabry, “who [he] observed operating the vessel.”
Much of the deputy’s testimony was disputed by Tammie Lambert, one of the
other occupants of the boat on the evening of Mabry’s arrest, who testified on
Mabry’s behalf. She testified that the group had gotten into Mabry’s boat after
leaving a friend’s house and had pushed away from the dock, but they had an issue
with the navigational lights not working, “so they were working with that.” She
testified that the other male passenger, Patrick Prentice, had been taking turns with
Mabry throughout the day driving the boat and that once they got the lights working,
Prentice was going to drive the boat because he had not had as much to drink. She
stated that at the time the deputy arrived, no one had driven the boat since they left
their friend’s house and that they were “just floating.” She claimed that Mabry was
not in the operator’s seat at the time of the stop. She also claimed that the boat was
never put in gear and that she did not recall the engine even being on.
5 In our review of the evidence, we must defer to the jury’s factual findings and
resolve all reasonable inferences in favor of their verdict because the jury is the sole
judge of the witnesses’ credibility and the weight to be afforded to the testimony of
each witness. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010); Dobbs
v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). The jury may choose to
believe or disbelieve any witness, or any portion of a witness’s testimony,
particularly when there is contradictory evidence. Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986). The jury in this case was clearly presented with
conflicting testimony. Lambert insisted that Mabry was not in the operator’s seat and
that the boat was not moving; the deputy testified affirmatively and repeatedly that
he witnessed Mabry in the operator’s seat, with the boat moving in a forward motion
prior to the stop, and that Mabry shifted the boat into neutral after the deputy engaged
his police lights. Lambert denied that the boat’s motor was running before the stop,
yet the deputy’s body-cam video, admitted into evidence and played for the jury,
shows law enforcement officers asking the occupants to turn the boat off and
Prentice complying. Lambert asserted that no one was driving the boat before the
stop because they could not get the navigational lights to work, but she could not
remember if, or explain how, the lights came on immediately after the deputy began
flashing his police lights. Lambert testified that Prentice, the other male occupant,
6 had been driving that evening and was going to drive the boat after they got the lights
working, but another witness, a customer service clerk at a marina where Mabry
frequently launches his boat, testified that Mabry told her after the arrest that it was
his girlfriend that was driving that night. Faced with this contradictory testimony, it
was within the jury’s province to disbelieve or disregard Lambert’s testimony and
believe the testimony of the deputy that he witnessed Mabry operating the
watercraft. See id.
Therefore, according due deference to the jury’s exclusive right to determine
the credibility of the witnesses and the weight to attach to the evidence, and viewing
all of the admitted evidence in the light most favorable to the prosecution, we find
that there is sufficient evidence by which the jury could have found beyond a
reasonable doubt that Mabry was operating the watercraft while intoxicated prior to
his arrest. We therefore overrule Mabry’s appellate issue and affirm the trial court’s
judgment.
AFFIRMED.
______________________________ CHARLES KREGER Justice Submitted on June 13, 2017 Opinion Delivered September 27, 2017 Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ. 7