Driving While Intoxicated Case Law Update - Texas District ...

the impairment element of the Sfafe's case. Therefore, the trial court properly denied Burkett's
req u e sted i n struction.
N. NO JURY INSTRUCTION ON FAILURE TO PRESERVE EVIDENGE
White v. State, 125 S.W.3d 41 (Tex.App.Houston [14th Dist.] 2003) pet. ref'd 149 S.W.3d 159
(Tex.Crim.App. 200a).
The defense in this intoxication manslaughter case sought a "spoilation" instruction based on the
Sfafe's failure to secure a bicycle that was involved in the crash. The duty to preserue evidence is
limited to evidence fhaf possesses an exculpatoryvaluethatwasapparentbeforethe evidence was
destroyed. ln this case, the only evidence before the trial court regarding the materiality of the
bicycle was an affidavit from appellant's counsel stating that appellant's accident-reconstruction
expert "has indicated a need to inspect the complainant's bicycle." At best, appellant has shown only
that preservation of the bicycle mioht have been favorable. which is insufficient to satisfy the
requirement of materiality. The instruction was properly denied in this case.
O. DEFINITION OF "OPERATING'' IN CHARGE
1. NOT ERROR TO DENY REQUEST
Yokom v. State , 2OO4 WL 742888 (Tex.App.-Fort Worth 2004, pdr ref'd) (Not designated for
publication).
/n response tothe denialof the defense requestto define "operating" in the jury instruction, the court
held that as a general rule, terms not statutorily defined need not be defined in the jury charge, but
instead are to be given their common, ordinary, or usual meaning. The term "operating" has not
acquired a peculiar meaning in the law. Courts have consistently applied a plain meaning to the
word, allowing jurors to freely construe the term to have any meaning within its normal usage.
2. NOT ERROR TO GIVE JURY DEFINITION OF "OPERATING''
Laroque v. State, 2010 WL 3303857 (Tex.App.-Fort Worth 2010, no pet.) (Not designated for
publication).
In this case the original charge did not define operating but the Court gave an instruction in
response to a jury note stating:
"With respect to your note concerning 'operating a motor vehicle[,]', you are instructed as follows.
There is no statutory definition of the term 'operate.' To find operation of a motor vehicle, the totality
of the circumstances musf demonstrate that the defendant took action to affect the functioning of
his vehicle that would enable the vehicle's use. A person may be said to operate a motor vehicle
if he exerts personal effort upon the motor vehicle in a manner that shows intentional use of the
vehicle for its intended purpose."
ln upholding the decision to give such an instruction, the Court stated it has notfound any authority
holding that, in a circumstance such as the one in fhis case, a trial court errs by merely giving the
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