Tex. Penal Code Ann. § 49.04

Section 49.04’s public-place element can be proved by an inference that the defendant operated a vehicle there while intoxicated.

Harvey Sparks, Jr. v. State · filed 1994-10-19

Specifically, the jury could rationally infer that appellant not only operated a vehicle while intoxicated, but that he did so in a public place.

Section 49.04(a) covers driving while intoxicated in a privately owned parking garage that is open to the public, even if parking requires payment.

State v. Nailor · filed 1997-05-07(a)

Driving while intoxicated occurs when a person is intoxicated while operating a motor vehicle in a public place. ... The relevant inquiry is whether the public can enter the premises. Second, a place can be public, despite the requirement of an entrance fee.

A street is a public place under § 49.04, and proof of driving on a street satisfies its public-place element.

United States v. Collazo · filed 1997-07-09

Under Texas law, a street is per se a “public place” for purposes of § 49.04, and proof of driving on a street is sufficient to meet the “public place” element of § 49.04.

Section 49.04(a)’s public-place requirement includes a park the public can enter, even after its hours of operation.

Perry v. State · filed 1999-02-03(a)

The fact that a park’s hours of operation are over and the public is not “supposed” to use the park is irrelevant to the determination of whether the place is one to which the public has access. The relevant inquiry is whether the public can enter the premises.

Section 49.04 requires driving while intoxicated to occur in a public place, and identifying a highway by name is sufficient to establish that element.

Lara, Bernardo v. State · filed 2000-06-22

It is well settled that the identification of a highway by name is sufficient to show that a defendant was driving on a public road or highway.

A marina accessible to the public is a public place under section 49.04(a)'s driving while intoxicated rule.

Shaub v. State · filed 2003-01-16(a)

We hold that, in the instant case, the marina is a public place. We agree with the State that the evidence before the trial court was sufficient for the jury to infer that the public has access to the marina and it therefore is a public place.

Section 49.04(a)'s public-place element is satisfied when an intoxicated person operates a motor vehicle in a marina accessible to the public.

Shaub v. State · filed 2003-03-13(a)

We hold that, in the instant case, the marina is a public place. We agree with the State that the evidence before the trial court was sufficient for the jury to infer that the public has access to the marina and it therefore is a public place.

Section 49.04(a)’s public-place requirement includes an accessible highway construction zone even when cones and barriers restrict entry.

Campos v. State · filed 2009-09-25(a)

In this case, the public clearly had actual access to the portion of Old Highway 81 that had been designated as a construction zone. As they were placed only periodically, the cones, barrels, and barriers did not completely restrict physical access to the zone.

Section 49.04(a) requires proof that an intoxicated person operated a motor vehicle in a public place; eyewitness testimony that the person drove on a public roadway can support that element.

Galvan v. State · filed 2010-04-21(a)

Viewing the record in the light most favorable to the verdict, a reasonable minded juror could have found beyond a reasonable doubt that Appellant operated a motor vehicle in a public place in El Paso County, Texas. As such, the evidence was legally sufficient to support Appellant’s conviction.

Section 49.04(a)’s public-place element can be satisfied by driving in a service station parking lot to which the public has unfettered access.

Ellis v. State · filed 2010-12-30(a)

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have determined beyond a reasonable doubt that that the parking lot of a service station, to which the public had unfettered access, was a public place within the meaning of the statute.

Section 49.04(a) makes driving in a public place while intoxicated the gravamen of DWI.

Coleman v. State · filed 2011-09-07(a)

The gravamen of a DWI charge is driving in a public place while intoxicated.

Section 49.04 requires proof that an intoxicated person operated a motor vehicle in a public place; driving on a street satisfies that element.

Byars v. State · filed 2011-10-12

Accordingly, the evidence is legally sufficient to support the jury’s finding that Byars drove his truck on the street, which is a public place.

Section 49.04(a) requires intoxicated driving in a public place; a tank trail accessible to the public can satisfy that element.

United States v. Zellmar · filed 2012-07-05(a)

Pursuant to Texas Penal Code § 49.04(a), a person commits the offense of driving while intoxicated if he was intoxicated while operating a motor vehicle in a public place. ... A rational jury could conclude that members of the public had access to the area where Zellmar was found and that the tank trail thus was a public place.

A parking lot is a public place for driving while intoxicated if the public can access it, even when parking is restricted to authorized vehicles.

Kelly v. State · filed 2013-01-16(a)

The evidence showing that public is not permitted to park in the lot is not dispositive of the issue because whether the area is a public space within the meaning of Section 49.04(a) turns on whether the public has access to the area. While only authorized vehicles may park in the lot, it is not gated or otherwise closed off to the public.

Section 49.04 requires proof that the defendant operated a motor vehicle in a public place; a fact finder may infer that a road is a public place without explicit testimony saying so.

Lyle v. State · filed 2013-12-19(a)

The ―public place‖ element was supported by the evidence and not seriously contested. Although, as appellant argued, there was no explicit testimony that Barker Cypress is a public place, a fact finder could have rationally inferred that Barker Cypress is a street or highway to which the public has access.

Section 49.04(a)'s public-place element can be proved by evidence that the public had access to the parking lot and gravel road where the defendant drove.

Crouse, Lawrence Frank v. State · filed 2014-03-27(a)

From this evidence, the court could reasonably conclude that the public had access to both areas. See Loera, 14 S.W.3d at 467. Accordingly, the evidence is sufficient to support the “public place” element of driving while intoxicated.

Section 49.04(a) requires proof that the defendant was intoxicated while operating a motor vehicle in a public place.

Sanchez-Tapia v. State · filed 2015-03-10(a)

Section 49.04(a) of the Texas Penal Code sets forth the elements necessary to convict appellant of DWI. They are as follows: (1) appellant (2) was intoxicated (3) while operating a motor vehicle (4) in a public place.

Section 49.04(a) makes operating a motor vehicle in a public place an element of DWI for the jury to decide.

Sanchez-Tapia, Hermilo · filed 2015-05-12(a)

The State contends that the factual dispute about where the DWI occurred, and the arrest resulted, goes to the "public place" element of the offense. Therefore, the State posits that the issue of a "public place" was an issue for the jury in determining whether the State met Its burden of proof in its case-in-chief, not in determining the reasonable suspicion for the initial stop. We agree with the State.

Section 49.04(a)’s public-place element can be proved by evidence that the driver traveled on public streets to reach where the vehicle was found.

Pennick v. State · filed 2015-12-02(a)

We also find no merit in Pennick’s contention that the evidence is insufficient to prove that he was operating the vehicle in a “public place.” ... Additionally, Johnson acknowledged in her testimony that in order ... for Pennick to get from Nuckols’s house to where he was found, he had to drive on several public streets, including Highway 290. From this and other evidence, the jury could have reasonably found that Pennick had operated a motor vehicle in a public place.

A park can be a public place under Section 49.04(a) after closing if the public or a substantial group of the public still has access.

Hearrean v. State · filed 2016-05-25(a)

When taken in the light most favorable to the verdict, the evidence shows that the public, or a substantial group of the public, has access to the park even after it is closed. Consequently, a rational trier of fact could reasonably find beyond a reasonable doubt that the park is a public place.

Section 49.04(a)’s public-place element can be proved by evidence allowing a reasonable inference that the defendant drove on a public road or in an area open to the public.

Stroud v. State · filed 2016-06-01(a)

Given the testimony, the jury’s conclusion that Stroud operated a motor vehicle in a public place and on a public road were reasonable conclusions from the evidence.

Section 49.04(a)’s public-place element includes a residential apartment garage accessible to residents, even when security measures limit entry.

the State of Texas v. Vaughn · filed 2022-04-05(a)

Under subsection 49.04(a) of the Texas Penal Code, an individual commits an offense if he or she “is intoxicated while operating a motor vehicle in a public place.” ... Accordingly, based on the circumstances of this case, we conclude that The Bowie’s parking garage was a public place under subsection 1.07(a)(40) of the Texas Penal Code.

Section 49.04(a) prohibits operating a motor vehicle in a public place while intoxicated; driving to and parking in a public lot can satisfy the operation and public-place elements.

Dalrymple v. the State of Texas · filed 2024-10-07(a)

When viewing this evidence in the light most favorable to the verdict, we find the evidence legally sufficient for the jury to have concluded that, while intoxicated, Dalrymple operated his motor vehicle when he drove it to a public place and parked it.

Section 49.04(a) requires proof that the defendant operated a vehicle while intoxicated in a public place, which depends on public access rather than government ownership.

Bradford v. the State of Texas · filed 2025-02-03(a)

Therefore, the State was not required to prove government ownership, but only public access, to prove the “public place” element of the crime.

Section 49.04(a)'s operation element may be proved by circumstantial evidence, including a defendant's presence in the driver's seat immediately after a crash.

Harriman v. the State of Texas · filed 2026-02-12(a)

Based on this circumstantial evidence, a reasonable jury could conclude that Harriman had been operating the gold Ford pickup truck at the time of the crash.

An ATV can qualify as a motor vehicle under Section 49.04(a) if it can transport a person or property on a highway, even if highway use is generally prohibited.

Flores-Garnica v. the State of Texas · filed 2021-05-13(a)

The jury was free to read may to indicate possibility. See Vernon, 841 S.W.2d at 409. The evidence, including the videos, demonstrates that the ATV could transport a person and property on a highway and that it was not exclusively used on stationary rails or tracks. Specifically, the evidence shows that Flores-Garnica drove the ATV to the store for beer and then drove it to the mobile home park on roads. We therefore hold the evidence sufficient to support the jury’s finding that the ATV was a motor vehicle.

Section 49.04(a)’s operation element was satisfied by the evidence in Fernandez.

Fernandez v. State · filed 2020-02-06(a)

We hold that a rational factfinder could have found beyond a reasonable doubt that Fernandez operated a vehicle while intoxicated.

A DWI conviction under § 49.04(a) cannot rest on the defendant’s statements alone when no other evidence supports operation of a vehicle in a public place while intoxicated.

Robert Earl Harrell, Jr. v. State · filed 2019-08-22(a)

Here, other than Harrell’s statements to Officer Blair, there was no other evidence from which a jury could rationally conclude that Harrell was operating the vehicle in a public place while intoxicated. Consequently, the evidence is insufficient to support Harrell’s conviction for driving while intoxicated.

Section 49.04(a) allows circumstantial evidence to establish that a person operated a motor vehicle while intoxicated when the evidence links the intoxication to the time of operation.

Lehnert v. State · filed 2020-01-23(a)

Also, based on Garcia’s testimony and Trooper Campbell’s testimony, the State established a temporal link between Appellant’s intoxication and the operation of his pickup.

Section 49.04 requires proof that a person operated a motor vehicle in a public place while intoxicated; admissions corroborated by other evidence can establish operation.

Mitchell v. State · filed 2011-09-01

Under the hypothetically correct jury charge, Mitchell committed the offense of DWI if (1) he (2) operated (3) a motor vehicle (4) in a public place (5) while intoxicated. TEX. PENAL CODE ANN. § 49.04 (West 2011). ... The evidence was legally sufficient to support Mitchell’s DWI conviction.

Section 49.04(a) requires proof that an intoxicated person operated a motor vehicle in a public place; testimony corroborating an admission of driving can establish the operation element.

Devilbiss v. State · filed 2011-08-17(a)

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. ... We hold Niznik’s testimony was sufficient to corroborate Devilbiss’s statements, which established she was the driver.

Section 49.04(a) requires proof that the accused operated a motor vehicle in a public place while intoxicated; circumstantial evidence can establish who operated it.

Harvey v. State · filed 2011-08-29(a)

We hold that the evidence is legally sufficient to show that appellant was operating the truck at the time of the accident.

Section 49.04(a) requires proof that an intoxicated person operated a motor vehicle in a public place; operation is assessed from the totality of the circumstances.

Watson v. State · filed 2008-12-23(a)

The evidence is therefore factually sufficient to show that Watson operated his vehicle while intoxicated.

Section 49.04(a)'s requirement that an intoxicated person operate a motor vehicle can be proved through circumstantial evidence identifying the driver.

Starnes v. State · filed 2007-05-10(a)

After viewing this evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt that appellant was driving the truck immediately before his arrest, and was intoxicated while doing so.

Section 49.04(a)’s operation element may be proved by circumstantial evidence even if no witness saw the defendant drive.

Vargas v. State · filed 2000-08-31(a)

That no witness observed appellant driving does not render the evidence insufficient.

Section 49.04’s prohibition on operating a vehicle while intoxicated covers driving and conduct rapidly convertible to driving.

Oscar Camacho-Marroquin, Also Known as Jesus Sanchez v. Immigration and Naturalization Service · filed 1999-09-29

Although Camacho points out that § 49.04 defines the offense as “operating” rather than driving, operating includes driving and other conduct rapidly convertible to driving.

Section 49.04 requires proof that the defendant drove or operated a motor vehicle in a public place while intoxicated; an officer’s testimony identifying the vehicle as a motor vehicle supported that element.

Cano v. State · filed 1995-04-26

A person commits the offense of DWI if the person is intoxicated while driving or operating a motor vehicle in a public place. ... Contrary to Cano's brief, Harkrider did specifically refer to Cano's vehicle as a motor vehicle. We overrule point one.

Section 49.04(a)'s operation element can be satisfied by revving a vehicle's engine and spinning its tires while trying to drive out of a ditch.

Kerr v. State · filed 1996-04-25(a)

A fair import of their testimony is that as they drove up, someone was attempting to drive the car out of the ditch by “revving” the engine of the car, which caused the tires to spin rapidly enough to generate smoke and a burning rubber odor, and that this was “operating” the vehicle.

Section 49.04(a)’s driving element was supported by the defendant’s admission and evidence that he was found behind the wheel within two minutes of a collision.

Peddicord v. State · filed 1997-02-28(a)

Considering the evidence adduced, whether properly or improperly admitted, in the light most favorable to the verdict, it is apparent that appellant’s statement to Burke that he was the driver of the Honda, together with the circumstances that within two minutes after the accident appellant was discovered in the driver’s seat of the damaged Honda, were sufficient for any rational trier of fact to find beyond a reasonable doubt that appellant was the driver of the Honda.

Section 49.04(a) requires an intoxicated person to drive or operate a motor vehicle to be convicted of DWI.

Haskins v. State · filed 1997-11-13(a)

Thus, under Texas law, a person cannot be convicted of DWI unless he is actually driving or operating the motor vehicle.

Section 49.04(a)'s requirement that the defendant operated a motor vehicle can be proved by circumstantial evidence.

Moya v. State · filed 1999-02-11(a)

Viewing this evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found that appellant was in fact the operator of the motor vehicle.

Section 49.04(a) covers an intoxicated person who operates a motor vehicle in a public place; operation can be shown by efforts that cause the vehicle to function even when it does not move.

Freeman v. State · filed 2002-02-21(a)

Viewed in the light most favorable to the verdict, we conclude the circumstantial evidence indicates that appellant, while intoxicated, exerted personal effort upon her vehicle by causing the motor to be running, the lights to be on, and by shifting the gear to drive. Further, as the result of her effort, the vehicle’s wheel rested against the curb of a public street. We conclude that the evidence, together with reasonable inferences therefrom, is legally sufficient to show that appellant was operating her vehicle while intoxicated.

Section 49.04(a) requires proof that an intoxicated person operated a motor vehicle in a public place; circumstantial evidence can establish operation.

Hurd v. State of Texas · filed 2002-04-26(a)

A person commits the offense of driving while intoxicated if he is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon Supp. 2002). ... The evidence is both legally and factually sufficient to support a finding that appellant was operating a motor vehicle.

Section 49.04(a)'s operation element can be satisfied by trying to put a vehicle in gear to leave, even when the vehicle is stuck.

Wooten v. State · filed 2003-02-06(a)

They testified that appellant was trying to get the Blazer in gear to leave, but it was stuck against the retaining wall. Furthermore, a witness testified that he thought the engine was running. Based on the totality of the circumstances, this evidence is sufficient to establish an "action to affect the functioning of [the] vehicle in a manner that would enable the vehicle's use."

Section 49.04’s driving element may be proved by a driver’s admission and circumstantial evidence that he alone emerged from a crashed car.

Perry v. State · filed 2003-04-24

Similar to Petticord , appellant admitted he was the driver of the car when he returned to the station two days after the accident. Furthermore, while Rinard was inside his home, he heard a loud crash and then went outside. He saw appellant, and no one else, climbing out of the car. Thus, we hold that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant was driving.

Section 49.04(a) treats actions that affect a vehicle’s functioning and enable its use as operation, even if the vehicle does not move.

Matthew Devin Yocom A/K/A Mattew Devin Yocom v. State · filed 2004-04-08(a)

This evidence is legally sufficient to prove that Yocom took action to affect the functioning of his truck in a manner that would enable its use.

Section 49.04 covers operating a motor vehicle in a public place while intoxicated, even though its heading uses the word “driving.”

Drew v. State · filed 2004-04-29

Despite the heading or label on the statutes, the body of the statutes themselves refers to " operating " rather than " driving " a motor vehicle in a public place while intoxicated.

Section 49.04(a) does not require direct evidence that a person drove the vehicle to prove that the person operated it.

Newell v. State · filed 2005-10-27(a)

The State was not required to present direct evidence of appellant’s driving the car to establish that he operated it.

Section 49.04(a) permits circumstantial evidence to prove that the accused operated the motor vehicle.

Claiborne v. State · filed 2005-08-29(a)

Further, the identity of the person operating the motor vehicle can be proved by either direct or circumstantial evidence. ... We conclude that any rational trier of fact could have found beyond a reasonable doubt that appellant drove the Mercedes on September 6, 2001.

Section 49.04(a) requires proof that the defendant operated a motor vehicle in a public place while intoxicated; the driver's identity may be proved by circumstantial evidence.

Dickey v. State · filed 2006-02-02(a)

Whether viewed in a light most favorable to the verdict (footnote: 5) or in a neutral light, (footnote: 6) we hold that there is sufficient evidence from which a rational fact-finder could have found beyond a reasonable doubt that appellant operated the BMW in a public place while intoxicated.

Section 49.04(a) requires proof that the defendant was intoxicated while operating a motor vehicle in a public place; circumstantial evidence can establish operation.

Smith v. State · filed 2006-12-11(a)

Viewing the totality of the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that Appellant was the sole operator of the vehicle.

Section 49.04(a) treats an action that enables a vehicle to move as operating it, even if the action is not driving.

Ixquiac v. State · filed 2007-08-23(a)

In reviewing the totality of circumstances, the evidence is both legally and factually sufficient to show Appellant "operated" his vehicle. Appellant admitted that his vehicle moved and made contact with Lorenzo's truck. Appellant's action in pulling down the hand break permitted the vehicle to function and enabled it to move. While Appellant's action could not necessarily be deemed driving, it nonetheless constitutes operation of his vehicle.

Section 49.04(a) requires proof of intoxication while operating a motor vehicle; a person can operate a vehicle without actively driving it.

Vasquez v. State · filed 2007-08-28(a)

To secure a conviction for DWI, the State must prove the defendant was intoxicated while operating a motor vehicle. Tex. Penal Code Ann. § 49.04(a). ... Considering the totality of the circumstances of this case, the State sufficiently proved the elements of the offense beyond a reasonable doubt.

Section 49.04(a)’s operating element includes pressing the brake pedal to restrain a vehicle’s movement, even while asleep.

Partee v. Texas Department of Public Safety · filed 2007-12-05(a)

Applying this rationale, Partee’s application of the brake pedal, thereby restraining the vehicle’s actual movement, falls within the definition of “operating a motor vehicle.”

Section 49.04(a) requires proof that the accused operated a motor vehicle in a public place while intoxicated; the factfinder may resolve conflicting testimony about who was driving.

Richardson v. State · filed 2008-01-16(a)

In doing so, the trial court could reasonably conclude that Richardson was operating the Escort when the accident occurred.

Section 49.04 requires proof that a person operated a motor vehicle in a public place while intoxicated; an admission of driving corroborated by circumstantial evidence can establish the driving element.

Caples v. State · filed 2008-05-22

The offense of driving while intoxicated is committed when a person is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04 (Vernon 2003). ... Accordingly, we conclude that the evidence was legally and factually sufficient to establish that appellant was driving his Jeep when the accident occurred.

Under section 49.04(a), whether an intoxicated person operated a vehicle depends on the totality of the circumstances, including actions that enabled the vehicle’s use even if it did not move.

Dornbusch v. State · filed 2008-07-24(a)

We hold that the evidence, viewed in light most favorable to the verdict, together with reasonable inferences therefrom, is legally sufficient to show that Appellant operated his vehicle while intoxicated.

Section 49.04(a)'s operation element may be proved by circumstantial evidence that the defendant drove the vehicle shortly before an officer arrived.

Quesada v. State · filed 2009-03-18(a)

This evidence supports the jury's finding that Quesada was operating the vehicle.

Section 49.04(a)’s operating element can be supported by evidence that a person was behind the wheel with a foot on the accelerator and the car in drive, despite testimony that someone else had driven the car earlier.

Kurtzeman v. State · filed 2009-03-26(a)

Helton’s testimony does not negate appellant’s operating the car by moving it to another location at the gas station, especially in light of Lomelo’s discovery of appellant behind the wheel, with his foot on the accelerator and the engine in “drive.”

Section 49.04(a)’s operation element can be established by circumstantial evidence and the defendant’s statements.

Ledet v. State · filed 2009-07-16(a)

Viewing the evidence in the light most favorable to the jury’s verdict, the circumstantial evidence, along with appellant’s statements, is legally sufficient to support the jury’s finding that appellant operated a motor vehicle.

Section 49.04(a)'s operation element can be satisfied when an intoxicated person sits behind the wheel of a vehicle stopped in the roadway with its engine running and a foot on the brake.

Rodriguez v. State · filed 2009-09-24(a)

Here, appellant was observed in a vehicle that was parked in the roadway with its engine running. Appellant was unconscious behind the wheel, with his foot on the brake. Viewing the evidence in the light most favorable to the verdict, we hold that a rational juror could have found, beyond a reasonable doubt, that appellant was operating a vehicle while intoxicated and therefore guilty of the offense of driving while intoxicated.

Circumstantial evidence can establish that an intoxicated person drove a vehicle even when no one saw the driving.

Villa v. State · filed 2009-08-10(a)

Although there is no direct evidence that appellant was the person who drove the Taurus to its resting place in the apartment complex’s landscaping, we find the circumstantial evidence both legally and factually sufficient to allow the jury to infer that fact.

Section 49.04(a) permits the State to prove that a defendant operated a vehicle through circumstantial evidence, without an eyewitness or confession.

Ward v. State · filed 2009-12-10(a)

Neither an extra-judicial confession nor direct evidence is required to prove that a DWI defendant was operating a vehicle; the State may prove the identity of a vehicle’s driver by circumstantial evidence.

Section 49.04(a)’s operation element can be established when the circumstances show that a person took action affecting a vehicle’s functioning so it could be used.

Barry Hunter Davis v. State · filed 2010-02-25(a)

To establish operation of a motor vehicle under Penal Code section 49.04, the State need only show that the “totality of the circumstances . . . demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle’s use.” Denton , 911 S.W.2d at 390; see Hearne v. State , 80 S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Milam v. State , 976 S.W.2d 788, 789 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d).

Under § 49.04(a), a jury may find that a person operated a vehicle when the key was turned and the engine was running, even without evidence that the vehicle moved.

Molina v. State · filed 2010-03-18(a)

Therefore, since any person intending to drive would first have to turn the key to start the car, we conclude that the fact that the key was turned and the engine was running could be interpreted by the jury as operating the vehicle.

Circumstantial evidence can establish that a defendant drove the vehicle for a driving-while-intoxicated conviction, even without direct testimony identifying the driver.

Costilla v. State · filed 2010-04-23(a)

Although there was no direct testimony that Costilla was driving, the evidence was sufficient for the jury to conclude that he was.

Section 49.04(a)'s requirement that the defendant operate a motor vehicle can be proved by circumstantial evidence, including evidence that the defendant was the only person seen at the crash scene.

O'donoghue v. State · filed 2010-07-15(a)

In this case, the totality of the circumstances demonstrate that the evidence was sufficient to support the jury's determination that the appellant operated the vehicle in question. His operation of the vehicle is consistent with his injuries and the testimony from the witnesses at the accident scene. His contradictory statements made to the police regarding who was with him in the vehicle at the time of the accident are a circumstance of guilt.

Section 49.04(a) leaves “operating” undefined, but a trial court may give the jury a correct definition of the term even though it is not required to do so.

Laroque v. State · filed 2010-08-19(a)

Thus, we hold that even though the trial court was not obligated to give a definition of “operating a motor vehicle,” it did not exceed its “broad discretion” by providing the correct definition.

Section 49.04(a)’s operation element was supported by evidence that the defendant drove the vehicle and later sat behind the wheel with the engine on.

Menjivar v. State · filed 2010-08-31(a)

There is legally sufficient evidence that Menjivar operated his vehicle.

Operation under Section 49.04 may be proved by circumstantial evidence even when an officer does not see the defendant driving.

Anderson v. State · filed 2010-09-01

The fact that Deputy Tompkins did not specifically link Appellant’s identity with the movement of the red truck, while the red truck was moving, is immaterial. Moreover, Deputy Tompkins’s thirty second delayed entry onto CR 15 does not render the evidence insufficient. Considering the totality of the circumstances, the evidence is factually sufficient to support the verdict.

Section 49.04(a) requires proof that the defendant operated a motor vehicle; action beyond mere preparation that enables the vehicle’s use qualifies as operating.

Gunter v. State · filed 2010-10-21(a)

Thus, “any action that is more than mere preparation toward operating the vehicle” qualifies as “operating” for DWI. ... Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that appellant operated a vehicle; the evidence is therefore sufficient to support his conviction.

Section 49.04’s operating element can be satisfied by action that would enable a vehicle’s use, even if no witness saw it running.

Kirsch v. State · filed 2010-11-04

Using the broad definition of ―operate,‖ a jury could have determined Kirsch took action in a manner that would enable the motorcycle‘s use.

For a DWI blood-search warrant, probable cause must establish operation of a vehicle while intoxicated, not necessarily driving.

Autumn Lea Wheat v. State · filed 2011-04-05(a)

However, Officer Schaefer’s affidavit need not establish probable cause that appellant drove a motor vehicle, only that she operated one while intoxicated.

Section 49.04(a) makes it an offense to operate a motor vehicle in a public place while intoxicated; the vehicle need not actually move to be operated.

Saterbo v. State · filed 2011-04-29(a)

A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003). The court of criminal appeals has held that, to show operation of a motor vehicle, “the totality of the circumstances [must] demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle‟s use.” Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). This definition does not require that the vehicle actually move. Id. ... In this case, a reliable informant reported to the dispatcher that Appellant was apparently intoxicated when he left Taco Bell, almost hitting the light pole on the way out. Fifteen minutes later, Officer Vanover found the vehicle in the parking lot adjacent to Taco Bell as reported. Appellant was in the driver‟s seat intoxicated, dribbling his taco on his clothes. The motor was running. ... Officer Vanover‟s arrest of Appellant was supported by probable cause.

Section 49.04(a)'s operation element can be satisfied when a person takes action to enable a vehicle's use, even if the vehicle does not move.

Cruz v. State · filed 2011-08-11(a)

A person commits the offense of driving while intoxicated if the person is intoxicated while "operating" a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a). ... Viewing the evidence in the light most favorable to the verdict, we conclude that the totality of the circumstances supports the jury's finding that Cruz took action to enable the vehicle's use.

Section 49.04(a)’s operation element can be satisfied by conduct that enables a vehicle’s use, including an attempt to kick-start it.

Kirsch v. State · filed 2012-05-08(a)

Using the broad definition of “operate,” a jury could have determined Kirsch took action in a manner that would enable the motorcycle’s use.

Section 49.04(a)’s operating element can be proved by circumstantial evidence.

Montoya v. State · filed 2012-05-24(a)

Viewing all of the evidence in the light most favorable to the verdict, we hold that any rational trier of fact could have found beyond a reasonable doubt that Montoya was operating a motor vehicle.

Section 49.04(a) requires proof that an intoxicated person operated a motor vehicle in a public place; witnesses who saw the defendant behind the wheel shortly after a crash supported a finding that he was the driver.

Garcia Jr. v. State · filed 2012-07-12(a)

After reviewing the evidence in the appellate record, we conclude a rational jury could have found beyond a reasonable doubt that appellant was the driver of the vehicle at the time of the accident.

Section 49.04(a) requires proof that the person operated a motor vehicle while intoxicated; the jury may infer operation from the circumstances.

Schragin v. State · filed 2012-08-16(a)

Viewing all of the evidence in the light most favorable to the jury’s verdict, and deferring to the jury’s authority to draw reasonable inferences from basic facts to ultimate facts, we conclude that the evidence was sufficient to enable the jury to rationally find, beyond a reasonable doubt, that Appellant operated a motor vehicle while intoxicated.

Section 49.04(a)’s operating element may be proved by circumstantial evidence and an admission of driving.

Hines v. State · filed 2012-08-29(a)

We hold a rational jury could have found Hines was operating a vehicle while intoxicated. The jury’s finding is reasonable considering a person matching Hines’ description was observed crawling out of the driver’s side window of the overturned car and Hines himself admitted to Officer Gallegos he was driving.

Under section 49.04(a), a person operates a motor vehicle when seated at the wheel with the key in the ignition, the engine running, and the vehicle in reverse gear.

State v. Saenz · filed 2012-12-28(a)

It is apparent that Saenz was “operating” the truck when—as observed by Officer Bintliff—he was in the driver’s seat with the key in the ignition, the engine running, and the vehicle in reverse gear.

Section 49.04 requires proof that a person was intoxicated while operating a motor vehicle in a public place.

Gallagher v. State · filed 2013-04-25

Under Texas law, one is guilty of driving while intoxicated if the person (1) is intoxicated (2) while operating a motor vehicle (3) in a public place. ... After viewing this evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Gallagher operated the motor vehicle as charged.

Section 49.04(a) requires intoxication while operating a motor vehicle in a public place; evidence of intoxication alone does not establish probable cause for a driving-while-intoxicated arrest without evidence of operation.

State v. Strickland · filed 2013-07-25(a)

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a). ... This is insufficient because, even looking at the totality of the circumstances, Officer Ressler lacked personal knowledge about whether Strickland drove the vehicle.

Section 49.04(a)’s operating element can be satisfied when a person is behind the wheel with the engine running, the transmission in drive, and the brakes engaged, even if the vehicle does not move.

White v. State · filed 2013-09-19(a)

Officer Guitar testified that Appellant was sitting behind the steering wheel of the vehicle with the engine running, the transmission in drive, and the brakes engaged. Furthermore, Watson testified that she turned the engine off prior to leaving Appellant in the drive-through. This testimony constitutes evidence that Appellant “took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” Denton, 911 S.W.2d at 390.

Section 49.04(a)’s requirement that a person operate a motor vehicle can be satisfied by evidence that the person drove it into a ditch.

Galvan v. State · filed 2013-10-24(a)

The jury reasonably could have determined from these facts that appellant was driving the vehicle and, therefore, operating a motor vehicle when it became stuck in the ditch.

A defendant’s statements and circumstantial evidence can prove operation of a motor vehicle under Section 49.04(a) without eyewitness testimony of driving.

Rodriguez v. State · filed 2013-12-04(a)

Appellant is correct that the State did not present the testimony of any witnesses who observed him drive the car. But it did offer Appellant’s statements and circumstantial evidence from which it can be inferred that he operated the vehicle. ... Viewing all of the evidence in the light most favorable to the verdict, the jury could have rationally found beyond a reasonable doubt that Appellant was operating a motor vehicle at the time of the accident.

Section 49.04’s operating element may be proved by circumstantial evidence showing that the defendant acted to enable a vehicle’s use.

Clift v. State · filed 2014-05-07(a)

The totality of the circumstances in this case demonstrates that Clift took action to affect the functioning of his vehicle in a manner that would enable its use.

Section 49.04(a) requires proof that an intoxicated person operated a motor vehicle in a public place; circumstantial evidence can establish operation.

Islas v. State · filed 2014-05-14(a)

Having reviewed all the evidence in the light most favorable to the jury, we conclude a rational juror could have found beyond a reasonable doubt that Appellant operated the vehicle.

Section 49.04(a) requires proof that a person operated a motor vehicle in a public place while intoxicated; operation and the timing of intoxication may be established through circumstantial evidence.

King v. State · filed 2014-06-18(a)

Viewing the evidence and the inferences therefrom in the light most favorable to the jury’s verdict, we conclude that the evidence was sufficient to enable the jury to rationally find, beyond a reasonable doubt, that King operated a motor vehicle while intoxicated.

Section 49.04(a) requires proof that the accused operated a motor vehicle while intoxicated; finding someone asleep in a running truck parked mostly on a private driveway does not, without more, establish that element.

Murray v. State · filed 2014-06-26(a)

As previously mentioned, the State convicted appellant of driving while intoxicated under section 49.04 of the Texas Penal Code. Thus, it was obligated to have shown, beyond reasonable doubt, that appellant was “intoxicated while operating a motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2013). ... Simply put, no direct or circumstantial evidence appears of record enabling a reasonable fact finder to infer that appellant operated his vehicle while intoxicated.

Section 49.04(a) covers operating a motor vehicle while intoxicated, and circumstantial evidence can establish who operated it.

Stephenson v. State · filed 2014-07-03(a)

Viewing all of the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support the finding that appellant was operating a vehicle while intoxicated.

Section 49.04(a)’s operation element may be established by evidence sufficient to show the defendant operated a vehicle while intoxicated.

Stephenson v. State · filed 2014-06-05(a)

Viewing all of the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support the finding that appellant was operating a vehicle while intoxicated.

Section 49.04’s operation element may be proved by circumstantial evidence identifying the defendant as the driver.

Conelly v. State · filed 2014-11-07

Based on this evidence, even though Yeley did not identify appellant at trial, the jury could have rationally concluded that the person Yeley saw driving the red SUV erratically was the same person Gerrish removed from the red SUV after it ran out of gas and identified as appellant.

Section 49.04(a) covers an intoxicated person who takes action to operate a motor vehicle, even if the person does not drive it.

Han Song v. State · filed 2015-02-13(a)

When assessing sufficiency of the evidence to prove the “operating” element of driving while intoxicated, the Court of Criminal Appeals has held that “operate” means taking action to affect the function of a vehicle in a manner that would enable the vehicle’s use. ... When the evidence is taken in the light most favorable to the verdict, we conclude it is sufficient to permit a rational trier of fact to conclude that Appellant operated the vehicle while intoxicated.

Section 49.04(a) allows a jury to infer intoxicated operation of a motor vehicle from circumstantial evidence.

Priego v. State · filed 2015-02-13(a)

... the jury could reasonably infer that she was operating her truck while intoxicated.

Section 49.04(a) requires proof that the defendant was intoxicated while operating a motor vehicle in a public place; an admission of driving, eyewitness identification, and possession of the vehicle’s keys can support the operation element.

Dixon v. State · filed 2015-07-07(a)

The record contains ample evidence that appellant was operating a motor vehicle. Appellant stated on video that he was driving the truck. The complainant identified appellant as the driver, and the officer testified that he found the keys to the truck in appellant’s pocket.

Section 49.04 allows a jury to infer that a defendant operated a vehicle while intoxicated from the totality of the circumstances.

Black v. State · filed 2015-11-04

The totality of the circumstances would have allowed the jury to reasonably infer that Black had operated his truck while intoxicated.

Section 49.04(a)’s operation element can be proved by direct and circumstantial evidence that the defendant drove the vehicle.

Miller III v. State · filed 2015-12-22(a)

With this direct and circumstantial evidence, the jury could have rationally concluded that appellant was the driver of the truck.

Section 49.04(a) requires proof that an intoxicated person operated a motor vehicle in a public place; operation may be inferred when the vehicle moved while its only other occupant was outside it.

James David Robinson, Jr. v. State · filed 2016-06-16(a)

Applying the appropriate standard of review, we hold that the jury, as the sole judge of the credibility and weight of the conflicting evidence, could have reasonably concluded beyond a reasonable doubt that while Amy was walking outside the car, the car moved down the road because Appellant, the only other occupant of the car, was operating the vehicle on a public street while he was intoxicated.

Evidence that the defendant operated a motor vehicle while intoxicated can support a conviction under § 49.04(a).

Crawford v. State · filed 2016-06-23(a)

Applying the appropriate standard of review, we hold that the evidence is sufficient to support the jury’s finding that Appellant operated the motor vehicle ... while intoxicated.

Section 49.04(a) permits circumstantial evidence to establish that a person operated a motor vehicle while intoxicated.

Paty v. State · filed 2016-08-16(a)

Such direct and circumstantial evidence, and any reasonable inferences that may be drawn from it, is sufficient to establish that appellant “operat[ed]” the truck in which he was found stopped in the McDonald’s drive-through lane.

An intoxicated person may be found to have operated a motor vehicle while asleep in the driver’s seat of a running car parked in a lane of traffic.

Oliva v. State · filed 2017-03-28(a)

Similar to Hearne, the jury could have inferred that appellant was operating the vehicle at the time he was found intoxicated and asleep, based on these facts: appellant’s car was parked in a lane of moving traffic; the key was in the ignition; the car was running; appellant was in the driver’s seat; no other person was in the car; no evidence suggested that another person operated the car; and appellant does not contest, and the breathalyzer and Habukiha’s testimony show, that appellant was intoxicated when the arresting officers found him.

Circumstantial evidence can establish operation of a motor vehicle while intoxicated under § 49.04(a).

Castillo v. State · filed 2017-03-30(a)

Accordingly, after viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that Castillo operated his car while legally intoxicated and that the evidence, therefore, was sufficient to support his conviction.

Section 49.04(a) requires proof that the defendant operated a motor vehicle in a public place while intoxicated; operation can be inferred from the circumstances.

Dansby v. State · filed 2017-04-28(a)

“Operation” of a vehicle is.shown when the totality of the circumstances demonstrates that the defendant took action to affect the functioning of the vehicle in a manner that would enable its use. ... Viewing the evidence in the light most favorable to the trial court’s verdict, we conclude that the trial court was rationally justified in finding, beyond a reasonable doubt, that Appellant operated the vehicle.

Section 49.04(a) requires proof that the intoxicated person operated a motor vehicle in a public place; operation is assessed from the totality of the circumstances.

Robison v. State · filed 2017-10-18(a)

In assessing the sufficiency of the evidence to prove that a defendant was “operating” a vehicle as contemplated by the statute, we look to the totality of the circumstances. ... Considering the corroborating evidence, along with Robison’s admission, we find sufficient evidence existed to support the jury’s finding that Robison had been operating the vehicle at issue.

Section 49.04(a)’s operation element can be proved by an officer’s testimony that he saw the defendant driving the vehicle.

Canady v. State · filed 2018-01-23(a)

When asked the reason he came into contact with appellant, Officer ... Shirley testified that appellant was driving an ATV on a sidewalk. On cross-examination, defense counsel asked the officer directly, “The ATV in this particular case, you say you saw him driving it?” Officer Shirley responded, “Yes.” The jury was rationally justified in finding beyond a reasonable doubt that appellant committed DWI.

Section 49.04(a)’s operation element may be proved by circumstantial evidence that the defendant took action to enable a vehicle’s use.

Rushing v. State · filed 2018-05-24(a)

Considering all evidence and reasonable inferences from that evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found beyond a reasonable doubt that Rushing operated the vehicle.

Section 49.04(a)’s operation requirement can be met by taking action that enables a vehicle’s use, even if the vehicle does not move.

Nichols v. State · filed 2018-10-17(a)

Accordingly, based on this evidence, the jury could reasonably conclude that Appellant took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.

Evidence that a truck’s reverse lights were on as an officer approached can support a finding that the driver operated it under Section 49.04.

Gutierrez v. State · filed 2021-04-16

The State proved that Appellant was operating his truck, because Sergeant Rosario testified that, when she approached the automobile, she saw the “reverse lights on,” and did not recall if Appellant “put [the truck] in park right away or if he stepped on the brakes first before he put it in park.”

Section 49.04(a)’s operation requirement is not established merely by finding someone in the driver’s seat of a parked car.

Garcia v. San Antonio, Texas · filed 2021-08-23(a)

The mere fact that Plaintiff was found in the driver’s seat of a car parked in a driveway, whether public or private, is insufficient evidence that he had been operating the vehicle.

Under § 49.04(a), trying to move a running vehicle can satisfy the operation element for purposes of a necessity instruction, even if the vehicle does not move.

MacIel, Bethany Grace · filed 2021-10-06(a)

Similarly, in this case, Appellant was sitting in the driver’s seat of a running vehicle and admitted she was trying to move it. In accord with our jurisprudence, Appellant’s testimony was sufficient to admit commission of DWI.

Section 49.04(a)’s operation element can be satisfied when an intoxicated person takes actions enabling a vehicle’s use, even if the vehicle is stopped.

Raul Gameros, Jr. v. the State of Texas · filed 2021-10-28(a)

The totality of the evidence demonstrates that the Appellant took actions that would enable the vehicle’s use and that he was “operating” a motor vehicle under the law.

Section 49.04(a) requires proof that a person operated a motor vehicle in a public place while intoxicated; moving a vehicle within a parking space can satisfy the operation element.

Casel v. the State of Texas · filed 2022-04-29(a)

Viewing the evidence in the light most favorable to the verdict, the jury was rationally justified in finding, beyond a reasonable doubt, that Appellant operated the vehicle.

Section 49.04(a)'s operating element may be proved by eyewitness identification and circumstantial evidence tying the accused to the vehicle.

Giddens v. the State of Texas · filed 2022-05-25(a)

Based on this evidence, the jury could have reasonably inferred that Giddens had operated a motor vehicle.

Section 49.04 requires proof that an intoxicated person operated a motor vehicle in a public place; admissions and circumstantial evidence can establish operation without an eyewitness to driving.

Bowlin v. the State of Texas · filed 2022-08-12

Under the Penal Code, an individual commits the offense of driving while intoxicated if he “is intoxicated while operating a motor vehicle in a public place.” See Tex. Penal Code § 49.04. ... Given our standard of review and in light of the evidence presented during trial as well as the reasonable inferences that the jury was free to make from that evidence, we must conclude that the evidence is sufficient to establish that Bowlin operated his motor vehicle before the vehicle became stuck on the curb.

Section 49.04’s operating element may be proved by circumstantial evidence even when no officer saw the defendant drive.

Hilario Hernandez A/K/A Hilario Munoz Hernandez v. the State of Texas · filed 2023-02-02

Because circumstantial evidence is treated as equally as direct evidence and in light of the evidence presented during trial, as well as the reasonable inferences that the jury was free to make from that evidence, we conclude that the evidence is sufficient to establish that Hernandez operated a motor vehicle before he collided.

Section 49.04(a)’s operation element may be proved by circumstantial evidence supporting a reasonable inference that an intoxicated person drove the vehicle.

Rodriguez v. the State of Texas · filed 2024-07-31(a)

The record supports the inferences necessary to find that Appellant operated the vehicle while she was intoxicated.

Section 49.04(a) permits a DWI conviction based on circumstantial evidence that the defendant operated a vehicle while intoxicated, even without an eyewitness to driving.

Villarreal v. the State of Texas · filed 2025-04-03(a)

After viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have reasonably found that Appellant operated his vehicle while intoxicated and that the evidence, therefore, was sufficient to support his conviction.

Section 49.04(a)’s operating element can be proved through circumstantial evidence and the defendant’s admissions even when no witness saw the defendant drive.

Young v. the State of Texas · filed 2025-07-09(a)

“A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04(a). ... The evidence is, therefore, sufficient to support the jury’s finding that Young was driving the vehicle at the time that it flipped over.

Section 49.04(a) prohibits operating a motor vehicle while intoxicated in a public place, and an admission to moving the vehicle can support probable cause on the operation element.

Chavez v. the State of Texas · filed 2025-12-30(a)

The totality of circumstances at bar provided a reasonable person to believe appellant “operated” the GMC pickup while intoxicated; that is, he committed the crime of driving while intoxicated.

Section 49.04(a) requires intoxication while operating a motor vehicle in a public place; operation can be established without an officer seeing the vehicle driven.

Ernest Villa Marquez v. the State of Texas · filed 2026-03-19(a)

This evidence, without more, is sufficient to show that Appellant “operated” his pickup within the meaning of Section 49.04(a) and controlling precedent.

Section 49.04(a) prohibits operating a motor vehicle while intoxicated in a public place; operating does not require driving or moving the vehicle.

Smith v. State · filed 2013-05-24(a)

The caselaw is clear that operating a vehicle does not necessarily involve driving or moving. See Denton, 911 S.W.2d at 389. One can be operating a car without actually causing the vehicle to function. Strong, 87 S.W.3d at 215. Therefore, we find that the Oklahoma DUI statute is substantially similar to the Texas DWI statute.

Section 49.04 defines one DWI offense; loss of faculties and a blood alcohol concentration of at least 0.08 are alternative ways to prove intoxication.

Faulkner v. State · filed 2016-06-08(a)

The Texas Court of Criminal Appeals, however, has concluded that the two definitions of intoxicated in section 49.01(2) “do not define separate offenses.” ... Thus, the affidavit was not defective by identifying “driving while intoxicated” as the “specific offense” that had been committed.

Section 49.04(a) requires proof that a person was intoxicated while operating a motor vehicle in a public place.

Caldwell v. the State of Texas · filed 2023-12-07(a)

To establish that Caldwell had committed the charged felony DWI offense, the State had to prove that (1) he was intoxicated (2) while operating a motor vehicle (3) in a public place (4) after having been previously convicted of DWI at least two times.

The corpus delicti of driving while intoxicated is that someone operated a motor vehicle in a public place while intoxicated.

Harrell, Robert Earl Jr. · filed 2021-04-21

The corpus delicti of DWI is that someone operated a motor vehicle in a public place while intoxicated.

Section 49.04(a) requires proof that a person was intoxicated while operating a motor vehicle in a public place.

Kinnett v. State · filed 2020-12-22(a)

To establish that appellant committed the offense of DWI, the State was required to prove that appellant was “intoxicated while operating a motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04(a).

Section 49.04(a) does not require the State to prove fault or involvement in an accident to establish driving while intoxicated.

Proctor v. State · filed 2020-12-18(a)

This argument is of no consequence because the State is not required to prove fault or Appellant’s involvement in the accident to prove the charged offense.

A DWI charge based on a 0.15 blood alcohol level still requires proof that the defendant operated a motor vehicle while over the legal limit.

State v. Collaso · filed 2020-04-15(a), (d)

We recognize that Collaso was charged with driving while intoxicated with a blood-alcohol level of 0.15, also known as a “per se” theory of intoxication, and that Collaso therefore could be convicted based solely on evidence that he had the requisite level of alcohol in his system at the time the test was performed. ... However, the State was still required to prove that Collaso had been operating a motor vehicle at the time that his blood alcohol level was above the legal limit.

Section 49.04(a), read with Texas’s definition of intoxication, has two divisible DWI alternatives: loss of normal mental or physical faculties due to drugs or alcohol, or an alcohol concentration of .08 or more.

State v. Hernandez-Castanon · filed 2018-11-02(a)

Here, the Texas Penal Code sets out two alternative sets of elements. To commit a DWI in Texas, the driver either (1) does not have normal use of mental or physical faculties by reason of drugs or alcohol or (2) has an alcohol concentration of .08 or more. Tex. Penal Code Ann. §§ 49.01(2), 49.04(a). Because the crime is divisible, the district court may consult a limited class of documents from the 2005 Texas conviction—charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from a bench trial—to determine which portion of the statute Hernandez-Castanon was convicted under.

Section 49.04 requires proof that the defendant was intoxicated while driving a motor vehicle in a public place; reasonable suspicion for the stop is not an element.

Burmeister v. State · filed 2008-01-31

For a conviction of driving while intoxicated, the prosecution must prove beyond a reasonable doubt that the defendant was intoxicated while driving a motor vehicle in a public place. Tex.Pen.Code Ann. § 49.04. The presence or absence of reasonable suspicion is not an element of the offense charged in this case.

Section 49.04(a) requires the State to prove that the defendant was intoxicated while operating a motor vehicle in a public place; reasonable suspicion for the traffic stop is not an element.

Lovington v. State · filed 2007-09-28(a)

But here the trooper's reasonable suspicion to effect the stop of appellant was not part of the State's burden of proof.

Section 49.04(a) requires proof that a person was intoxicated while operating a motor vehicle in a public place.

Lopez v. State · filed 2007-05-14(a)

To prove that a person is guilty of the offense of driving while intoxicated, the State must prove that the person was intoxicated while operating a motor vehicle in a public place. ... Viewing this evidence in the light most favorable to the verdict, we conclude that there was sufficient evidence for a reasonable jury to conclude that appellant was intoxicated beyond a reasonable doubt.

Section 49.04(a) requires proof beyond a reasonable doubt that the defendant was intoxicated while operating a motor vehicle in a public place; reasonable suspicion for the stop is not an element.

Carlos M. Mata, Sr. v. State of Texas · filed 2001-10-22(a)

But here the trooper's reasonable suspicion to effect the stop of appellant was not part of the State's burden of proof. ... It was for the State to prove beyond a reasonable doubt and persuade the jury that appellant was intoxicated while operating a motor vehicle in a public place and, for enhancement, that he had two prior driving while intoxicated convictions. Tex. Pen. Code Ann. § 49.04(a); 49.09(b).

Section 49.04(a) makes it an offense to operate a motor vehicle in a public place while intoxicated.

Irons v. State of Texas · filed 2001-06-29(a)

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.

Section 49.04(a) requires proof that a person was intoxicated while driving a motor vehicle in a public place.

Ernest Martinez, Jr. AKA Ernest Martinez v. State · filed 2001-08-09(a)

A person commits the offense of DWI if the person is intoxicated while driving a motor vehicle in a public place. ... We hold the evidence is legally and factually sufficient to support appellant's conviction for DWI.

Section 49.04 permits a driving-while-intoxicated charge to proceed under a loss-of-faculties theory even if the information fails to allege a valid alcohol-concentration theory.

State v. Gonzales · filed 2000-08-31

While the information fails to allege the per se theory for the reason stated above, it properly alleges the loss of faculties theory and is sufficient to vest jurisdiction in the county court at law.

Section 49.04(a) does not require proof that a driver refused to provide a blood or breath specimen.

Johnson v. State · filed 1996-01-11(a)

Further, proof of a refusal to give a blood or breath specimen is not required for the criminal offense of driving while intoxicated as charged in cause number 9503329. Accordingly, under the Blockburger “same-elements” test, the double jeopardy bar does not apply here.

Section 49.04(a) requires proof of intoxication while driving or operating a motor vehicle in a public place; the alternative ways to prove intoxication are not separate elements.

Helber v. State · filed 1996-02-01(a)

While the DWI statute provides two different means of proving “intoxication,” the alternate means of proof are not in and of themselves elements. ... Therefore, we construe the elements to be shown under the DWI statute: that the defendant is (1) intoxicated, (2) while driving or operating a motor vehicle, (3) in a public place, § 49.04(a); to be the same as the elements to be shown for suspension of the driver’s license: (1) person has an alcohol concentration of .10%, (2) while driving or operating a motor vehicle, (3) in a public place, article 6687b-l, § 5(a).

Section 49.04(a) requires proof of intoxication for a DWI conviction but does not require proof that the driver refused a breath or blood test.

Ex Parte Williamson · filed 1996-05-08(a)

Proof of this refusal is an element that is not required in the DWI prosecution. In addition, proof of intoxication is not required for license suspension but is required for conviction of DWI.

Section 49.04 requires driving or operating a motor vehicle in a public place while intoxicated and adds no element beyond those required for administrative license suspension under article 6687b-1.

Ex Parte Tharp · filed 1996-02-28

We agree with that assessment because while article 6687b-1 contains an element not found in section 49.04 (element four), the opposite is not true.

Section 49.04 requires proof that the defendant was intoxicated while operating a vehicle in a public place.

Holland v. State · filed 1996-03-06

It was only necessary, however, for the State to prove that appellant was intoxicated at the time he operated his van in a public place.

Section 49.04(a) does not require proof that the defendant refused to give a specimen.

Ex Parte Anthony · filed 1996-08-09(a)

Likewise, the DWI statute does not require the State to prove that the defendant refused to give a specimen (an element of subsection 2(f)) to prove that the defendant is guilty of DWI.

Section 49.04(a) requires the State to prove that a defendant was intoxicated while operating a motor vehicle in a public place.

Mammoser, Thomas E. v. State · filed 1997-02-20(a)

To convict appellant, the State had to prove he was "intoxicated while operating a motor vehicle in apublic place." Act of May 29,1993, 73d Leg., R.S., ch. 900, §1.01, 1993 Tex. Gen. Laws 3586, 3697, amended by Act of April 21, 1995, 74th Leg., R.S., ch. 76, § 14.55, 1995 Tex. Gen. Laws 458, 841 (current version at Tex. Penal Code Ann. §49.04(a) (Vernon Supp. 1997)).

Section 49.04(a) makes driving while intoxicated the same offense as administrative license revocation under article 6687b-1 for double jeopardy purposes because all three of its elements are found in that provision.

Voisinet v. State · filed 1996-11-27(a)

Texas Penal Code Section 49.04(a) states a person commits the offense of driving while intoxicated if the person: (1) is intoxicated; (2) while operating a motor vehicle; (3) in a public place. It is clear these two statutes define the same offense for double jeopardy purposes under the Blockburger test as the three elements of Texas Penal Code Section 49.04(a) are found in Texas Revised Civil Stat. article 6687b-1.

Section 49.04(a) requires proof that a person was intoxicated while driving or operating a motor vehicle in a public place; reasonable suspicion to stop and probable cause to arrest are not elements of DWI.

Ex Parte Richards · filed 1998-04-30(a)

To convict Richards of DWI, the D.A. must prove beyond a reasonable doubt that Richards was intoxicated while driving or operating a motor vehicle in a public place. ... Neither reasonable suspicion to stop nor probable cause to arrest are elements of a DWI conviction.

Section 49.04(a) requires intoxication while driving or operating a motor vehicle in a public place; the legality of the traffic detention is not an element of the offense.

Hollie v. State · filed 1998-02-12(a)

A person commits the offense of DWI if he is intoxicated while driving or operating a motor vehicle in a public place. Tex. Pen.Code Ann. § 49.04(a) (Vernon 1994). As in Malik, the legality of appellant’s detention, which relates to the admissibility of evidence, is not an element of this offense. Therefore, we may not measure the evidence’s sufficiency by it.

Section 49.04 does not require proof of why a defendant refused a one leg stand sobriety test.

Martinez v. State · filed 2004-07-29

Furthermore, the reason for Appellant’s refusal to submit to the one leg stand test is not an elemental fact required in proving DWI.

Section 49.04 requires proof that the defendant operated a vehicle in a public place while intoxicated.

Coggins v. State · filed 2005-03-03

The State’s burden was to prove that Coggins was operating his vehicle in a public place while intoxicated.

Section 49.04(a) defines DWI as operating a motor vehicle in a public place while intoxicated; using a second definition of intoxication to prove it does not create another offense.

Rodriguez v. State · filed 2008-08-27(a)

A person commits the offense of DWI if he is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). ... Here the indictment was timely amended and did not add an additional or different offense. Appellant, therefore, faced the prospect of the State attempting to prove intoxication by two definitions rather than one.

Section 49.04 requires proof that the defendant was intoxicated while driving a motor vehicle in a public place; reasonable suspicion for the traffic stop is not an element.

Sotelo v. State · filed 2009-07-29

For a conviction of driving while intoxicated, the prosecution must prove beyond a reasonable doubt that the defendant was intoxicated while driving a motor vehicle in a public place. Tex.Pen.Code Ann. § 49.04 (Vernon 2003). The presence or absence of reasonable suspicion is not an element of the offense charged.