Robert Earl Harrell, Jr. v. State ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0985-19
ROBERT EARL HARRELL JR., Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
GRAYSON COUNTY
HERVEY, J., delivered the opinion of the Court in which KELLER, P.J.,
RICHARDSON, NEWELL, KEEL, WALKER, and MCCLURE, JJ., joined. YEARY and
SLAUGHTER, JJ., concurred.
OPINION
In March 2017, the Van Alstyne Police Department received a report at about 4:00
a.m. of a gray minivan being driven erratically. The caller, who was driving in the same
direction, followed the minivan to a gas station, told police where it had been parked,
relayed the vehicle’s license plate information, then hung up. The caller did not describe
the driver. Police found the minivan a few minutes later. The motor was off, and
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Appellant was in the driver’s seat with the seatbelt buckled. There is no evidence about
where the keys were, but Appellant admitted that he had been driving. There were two
passengers in the back. All three people in the minivan were intoxicated. The court of
appeals held that the evidence did not tend to show the corpus delicti of DWI because,
absent Appellant’s extrajudicial confession, there was insufficient evidence that he
operated the minivan. Because we conclude that the evidence is sufficient to support
Appellant’s conviction, we will reverse the judgment of the court of appeals and remand
the cause for the lower court to address Appellant’s remaining issue.
I. BACKGROUND
a. Facts
When the police received the early morning call about a reckless driver, who was
“all over the road,” they were also given the minivan’s license plate information and told
the location of that minivan once it pulled into a gas station off the highway. The caller
(and another person in the vehicle) said that the gray minivan almost hit them “a couple
of times.” They did not identify Appellant as the driver, and they did not testify.
Officer Brandon Blair was dispatched. He testified that he arrived at the scene at
4:11 a.m., approached the parked minivan, and saw Appellant in the driver’s seat with his
seatbelt fastened. He also saw two passengers in the backseat. Officer Blair knocked on
the driver’s side window and could immediately smell the odor of alcohol when
Appellant rolled down the window. He also noticed that Appellant had bloodshot eyes
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and that his speech was slurred. Appellant told Officer Blair that he and the passengers
had been at Choctaw in Oklahoma since 7:30 p.m. the evening before and that they had
been drinking. At first, Appellant said that he had a “few beers” but then clarified that he
had “about three or four.” He also admitted that he had been driving. Officer Blair
administered three standardized field sobriety tests (SFSTs), all of which indicated that
Appellant was intoxicated, and Appellant was arrested. Appellant refused to provide a
blood sample.
Both passengers admitted that they had been drinking when asked. The first
passenger’s response to the question was, “that’s why we’re back here.” He also told
Officer Blair they were from Arlington, that he owned the minivan, and that Appellant
was “supposed to be the sober one.” The passenger took three SFSTs, all of which
indicated that he was intoxicated. The second passenger agreed to perform only the
horizontal gaze nystagmus (HGN) test, which indicated that he was intoxicated, because
he said that he had a previous leg injury. The passengers were never asked who had been
driving. Officer Blair arrested them for public intoxication. He told them that he could not
leave them at the vehicle after he left with Appellant because they would be a danger to
themselves or the public. The passengers did not testify.
About three hours after making contact, Officer Blair obtained a search warrant
and a sample of Appellant’s blood. His blood-alcohol concentration was .095.
b. Procedural History
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Appellant was charged by information with Class A misdemeanor DWI.1 A jury
convicted him, and the judge sentenced him to 365 days’ confinement, probated for
twenty-four months, and fined him $1,000.00. Appellant appealed, arguing that the
evidence was legally insufficient. The court of appeals agreed and rendered an acquittal.
Harrell v. State, No. 05-18-01133-CR, 2019 WL 3955774, at *3 (Tex. App.—Dallas
Aug. 22, 2019) (mem. op., not designated for publication). The State then filed a petition
for discretionary review in this Court, arguing that the court of appeals erroneously
merged the corpus delicti doctrine and the Jackson legal sufficiency review.
III. EVIDENTIARY SUFFICIENCY
Under the Due Process Clause, a criminal conviction must be based on legally
sufficient evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). The
evidence is legally sufficient if a rational jury could find each essential element of the
offense beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). When reviewing the sufficiency of the evidence, appellate courts consider all the
admitted evidence and view it in the light most favorable to the verdict. Id. “This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” Jackson, 443 U.S. at 319.
1
TEX. PENAL CODE §§ 49.04(b), 49.09(a). DWI is a Class B misdemeanor unless the State
alleges a prior conviction under Section 49.09 of the Texas Penal Code. Id. § 49.04(b). Here, the
State alleged a Class A misdemeanor because it alleged that Appellant had been previously
convicted of DWI once before. Id. § 49.09(a).
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In cases involving extrajudicial confessions when “beyond a reasonable doubt” is
the burden, not only must the evidence be legally sufficient under Jackson but also it must
tend to show the corpus delicti of the offense. Miller v. State, 457 S.W.3d 919, 924 (Tex.
Crim. App. 2015) (citing Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013)).
To determine if the corpus delicti of an offense is shown, an appellate court must
examine all the evidence except the defendant’s extrajudicial confession to see if it shows
that “the ‘essential nature’ of the charged crime was committed by someone.” Id. (citing
Hacker, 457 S.W.3d at 866 (emphasis added); Salazar v. State, 86 S.W.3d 640, 645 (Tex.
Crim. App. 2002)). The purpose of the corpus delicti rule is to prevent convictions based
on confessions to imaginary crimes. Id. (quoting Carrizales v. State, 414 S.W.3d 737, 740
(Tex. Crim. App. 2013)). The analysis focuses on only whether someone committed the
crime, but it is not as rigorous as the Jackson legal sufficiency review. Threet v. State,
250 S.W.2d 200, 200 (1952). The corpus delicti of DWI is that someone operated a motor
vehicle in a public place while intoxicated. Id.IV. ANALYSIS
The court of appeals began its analysis by separately discussing both the corpus
delicti doctrine and Jackson legal sufficiency review,2 but then it seems to have blended
aspects of the doctrines when applying them. For example, in rejecting the State’s corpus
delicti argument, the court of appeals said that there was no evidence except Appellant’s
2
Harrell, 2019 WL 3955774, at *2.
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extrajudicial confession “from which a jury could rationally conclude that [Appellant]
was operating the vehicle in a public place while intoxicated.” Harrell, 2019 WL
3955774, at *3. In a corpus delicti analysis, the extrajudicial confession of a defendant is
not considered, and identity need not be proven. Id. (citing Hacker, 457 S.W.3d at 866
(emphasis added); Salazar, 86 S.W.3d at 645). But under Jackson, all the admitted
evidence is considered, and proof of identity is required. Id.Appellant argues that courts, including ours, have in the past required proof of
identity to satisfy the corpus delicti doctrine, and he directs us to Threet v. State, 250
S.W.2d at 200 and Arocha v. State, No. 02-14-00042-CR, 2014 WL 6997405, at *2 (Tex.
App.—Fort Worth Dec. 11, 2014, no pet.) (mem. op., not designated for publication).
Appellant, however, mischaracterizes those cases. This Court in Threet and the court of
appeals in Arocha emphasized that identity is not part of the corpus delicti of DWI.
Threet, 250 S.W.2d at 200; Arocha, 2014 WL 6997405, at *2, n.4.
The evidence in this case is legally sufficient both under Jackson and to satisfy the
corpus delicti doctrine. The evidence is sufficient under Jackson because a rational jury
could find each essential element of the offense beyond a reasonable doubt when
considering all the admitted evidence, including Appellant’s extrajudicial confession. Not
only did Appellant confess that he had been driving the same minivan identified by the
911 caller on the highway but also Appellant was found in the driver’s seat with the
seatbelt buckled, and the first passenger told Officer Blair that Appellant was “supposed
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to be the sober one.” There is also ample evidence that Appellant was intoxicated. In
addition to the failed SFSTs, he had bloodshot eyes and slurred speech. Also, testing of
the blood sample taken three hours later showed Appellant’s BAC was over .09.
The evidence is also sufficient to show the corpus delicti of DWI. Absent
Appellant’s confession, the evidence still tends to show that Appellant and the passengers
were traveling together in the same minivan identified by the 911 caller and that
Appellant was operating it. As we have noted, the minivan had the same license plate as
reported by the 911 caller and was found where the caller said the driver parked it. When
Officer Blair approached the minivan, he saw Appellant in the driver’s seat with the
seatbelt buckled, and the first passenger told Officer Blair when asked about Appellant
being intoxicated that Appellant was “supposed to be the sober one.” The evidence tends
to show that someone in the minivan was operating it on the highway when 911 was
called. (While the evidence indicates that Appellant was driving, we stress that proof of
identity is not required in a corpus delicti analysis.)
The next question is whether whoever operated the minivan in a public place was
intoxicated within the meaning of the DWI statute. We find that the answer is yes. All the
people in the minivan were intoxicated. Appellant was arrested for DWI because the
officer believed that Appellant had lost normal control of his mental or physical faculties3
and was operating a motor vehicle in a public place. TEX. PENAL CODE § 49.01(2)(A)
3
Police later obtained a blood sample from Appellant three hours later via a search
warrant, and his BAC was over still over .09.
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(one way a person can be intoxicated under the DWI statute is if they do not have “the
normal use of [their] mental or physical faculties by reason of the introduction of
alcohol . . .”). If Appellant had been driving, he was guilty of DWI. The passengers were
arrested for public intoxication because they were a danger to themselves or others due to
their intoxication. Id. § 49.02(a) (“A person commits an offense if the person appears in a
public place while intoxicated to the degree that the person may endanger the person or
another.”). If they had been driving, they also would have been guilty of DWI.
V. CONCLUSION
The corpus delicti rule has been satisfied and the evidence is legally sufficient
because it tends to show that someone operated a motor vehicle in a public place while
intoxicated. We reverse the judgment of the court of appeals and remand the cause for it
to address Appellant’s remaining issue.
Delivered: April 21, 2021
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