
    Chad William MURRAY, Appellant v. The STATE of Texas
    NO. PD-1230-14
    Court of Criminal Appeals of Texas.
    Delivered: April 15, 2015
    
      ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS HILL COUNTY, BOB MCGREGOR, JUDGE
    Michael Mowla, Cedar Hill, for Appellant.
    John R. Messinger, Assistant State Prosecuting Attorney, Austin, for the State.
   OPINION

.Hervey, J.,

delivered the opinion of the Court

in which Keller, P.J., Johnson, Keasler, Alcala, Richardson, Yeary, Newell, JJ., joined.

Chad William Murray, 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. The State Prosecuting Attorney filed a petition for review in this Court, which we granted. 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?” We will reverse the judgment of the court of appeals.

On January 16, 2011, between approximately 1:00 a.m. and 2:00 a.m.-, Deputy James McClanahan of the Hill County Sheriffs Office was driving on Highway 22 when he saw Appellant’s black truck parked on the side of the road. The vehicle, with its headlights on, was parked partially on an improved shoulder and partially in a driveway near a fireworks stand. The officer believed that the engine was running because, due to the cold weather, he could see exhaust vapors leaving the tailpipe of the truck, but he could not see anyone in the vehicle as he drove past it. And because the fireworks stand near Appellant’s truck had been broken into recently, Deputy McClanahan suspected that Appellant may have been attempting to steal fireworks, so he parked and approached Appellant’s truck on foot. As he neared the vehicle, he saw Appellant reclined in the driver’s seat asleep. He also confirmed that the engine was running, the truck transmission was in the “park” position, and the radio was on with the volume turned up. Because of the volume of the radio, McClanahan had to “beat” on the driver’s side window for a few minutes to rouse Appellant. Once awake, Appellant rolled down the window, and Deputy McClanahan immediately smelled alcohol in the truck. He also noted that Appellant appeared very intoxicated, his movements were sluggish, and his speech was impaired. He asked Appellant whether he had been drinking alcohol, and Appellant responded that “he’d had a little.” There was no one else in Appellant’s vehicle or anyone near the area, and no alcoholic substances or containers were found in the vicinity.

McClanahan, who was not certified to administer standard field sobriety tests, radioed for an officer certified to perform those tests. Trooper Frederick Hart from the Department of Public Safety was dispatched to the scene. Hart testified that Appellant failed all of the standard field sobriety tests. Consequently, Trooper Hart arrested Appellant for DWI.

Evidentiary-sufficiency principles

When reviewing whether there is legally sufficient evidence to support a criminal conviction, the standard of review we apply is “whether, after viewing the evidence in the light most favorable to the prosecution, 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, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). This standard tasks the factfin-der with resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts. Id. On appeal, reviewing courts “determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). Thus, “[a]ppellate courts are not permitted to use a ‘divide and conquer’ strategy for evaluating sufficiency of the evidence” because that approach does not consider the cumulative force of all the evidence. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. See Hooper v. State, 214 S.W.3d 9, 12 (Tex.Crim.App.2007).

Discussion

Although the court of appeals correctly stated the applicable standard of review for insufficient-evidence claims, it misapplied that standard of review in its analysis in two respects. First, the court engaged in a divide-and-conquer analysis, explaining away individual facts that, when considered together, would support a reasonable inference that Appellant operated his vehicle while intoxicated. Second, the court focused its analysis on evidence that was not admitted at trial by distinguishing “missing” evidence in Appellant’s case from evidence present in preceding cases. However, since Jackson was decided, the pertinent inquiry in an evidentiary-suffi-ciency analysis remains the same: whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The court of appeals concluded that the record showed that “[A]ppellant was simply found asleep in a running truck while parked off the roadway and mainly in a private driveway. And, while one can infer that someone had to have driven the truck there, we have no evidence as to when or whether the person was inebriated at the time.” Murray v. State, 440 S.W.3d 927, 929 (Tex. App.-Amarillo 2014, pet. granted). We disagree.

The record shows that Appellant’s 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 Appellant’s 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 Appellant’s wallet.

Based on Appellant’s admission that he had been drinking, McClanahan’s observation that Appellant appeared “very intoxicated,” and the fact that no alcoholic beverages were found in the vicinity, a factfinder 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 factfin-der could have also reasonably inferred that Appellant drove his vehicle to the location at which he was found after drinking to intoxication.

When the evidence is viewed in the light most favorable to the State, a rational factfinder could have found that Appellant operated his vehicle while intoxicated. Consequently, we hold that the evidence in this case was legally sufficient to sustain the jury’s finding that Appellant operated his vehicle. We reverse the judgment of the court of appeals and remand this case for the court of appeals to address any other properly raised claims necessary to the disposition of Appellant’s appeal.

Meyers, J., filed a dissenting opinion.

DISSENTING OPINION

Meyers, J.,

filed a dissenting opinion.

The court of appeals decided that there was insufficient evidence in this case for a reasonable jury to conclude beyond a reasonable doubt that Appellant had operated a motor vehicle while intoxicated. Murray v. State, 440 S.W.3d 927, 929 (Tex. App.Amarillo 2014). I agree.

The majority states that the jury is responsible for “drawing reasonable inferences from basic facts to ultimate facts” and holds that, because the jury could have reasonably inferred that Appellant both consumed alcohol other than where he was found and drove to the location after drinking to intoxication, that the evidence was legally sufficient to support Appellant’s conviction. Murray v. State, No. PD-1230-14, op. at 448, 449. However, I am unfamiliar with this inferral relationship. Since when can juries makes inferences that are not based on direct or circumstantial evidence?

There is no evidence in this case at all that speaks to when the vehicle was driven to the location where it was found, or when or where Appellant became intoxicated. Finding the evidence sufficient to support Appellant’s conviction would be no different than convicting an individual for possession of marijuana based solely on an officer’s observation that the individual was high and smelled of marijuana. I am aware of no possession case where we have allowed this type of attenuated inference, and we should not allow it now in this driving while intoxicated case. Just as the evidence of possession of marijuana by that individual would be insufficient, so is the evidence that Appellant ever drove while intoxicated.

There are certain instances in which inferences are allowed to be made. For example, if an electronics store was robbed, and then an individual was found with electronics that contain serial numbers matching the stolen merchandise, it is allowable to infer that the individual committed the robbery even where there is no additional evidence he was the perpetrator. There, the inference is used to identify the individual who committed the crime. In this case, however, the inference is being used to assert that a crime was committed at all. I cannot condone this type of analysis which has no basis in law. I can only presume that this new procedure for both creating and finding a defendant guilty of a crime should open up a whole new avenue for convictions that are based solely upon a simple inference that a crime was committed.

Although the majority does not directly address whether simply being passed out behind the wheel of a running car is, itself, enough to constitute “operating” a vehicle for purposes of DWI, I would also hold that it is not enough. Operating a vehicle requires taking action in a manner that would enable the vehicle’s use, and although turning the ignition would likely meet this definition, there needs to exist some evidence to support a finding that it was done while the defendant was intoxicated. Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). Without such evidence, no rational jury could find beyond a reasonable doubt that the defendant operated a motor vehicle while intoxicated.

I believe the evidence in this case is insufficient to support appellant’s conviction and I would affirm the judgement of the court of appeals. For the foregoing reasons, I respectfully dissent. 
      
      . We solely address the sufficiency of the evidence as it pertains to the element of "operating” in the DWI statute because Appellant challenged only that element of the statute.
     
      
      . Backer v. State, 389 S.W.3d 860, 873 (Tex. Crim. App. 2013).
     
      
      . The court of appeals appears troubled that the record did not reveal "[w]hether [A]ppel-lant owned or was in some way affiliated with the fireworks stand .... [w]hether he began ingesting alcoholic substances at a locale near the fireworks stand ...,” and "whether establishments existed nearby whereat intoxicating substances could be acquired.” See Murray, 440 S.W.3d at 929. We believe that these concerns are without merit and lose sight of the ultimate inquiry of any evidentiaiy-suffi- ^ ciency analysis in a DWI case.
      The State does not have the burden to prove where Appellant obtained or consumed alcoholic beverages, or whether Appellant was affiliated with the nearby fireworks stand. The only question is whether the fact-finder could have reasonably inferred sufficient facts to determine that each element of the offense was proven beyond a reasonable doubt.
     