Remember when you were in school and asked the teacher what a particular word meant? She told you to find it in the dictionary. Not the online dictionary, mind you. I'm talking about the thick book that you had to thumb through page after page to find the word.
Back in 2010, Scott Kirsch was arrested for and convicted of his second DWI. It turns out that a woman was driving home from work one night when she saw Mr. Kirsch straddling his motorcycle in the middle of the road at an intersection. After she watched him fall to the ground, she called the police who came out to investigate.
When the police arrived, Mr. Kirsch was trying to kick-start his bike -- without success. According to the arresting officer, Mr. Kirsch had poor balance and difficulty following directions. Mr. Kirsch was then arrested and charged with driving while intoxicated.
The question at trial was, of course, whether Mr. Kirsch was operating a motor vehicle while intoxicated. The prosecutor argued that he was exercising control over the bike when police arrived. Mr. Kirsch argued that since the bike wasn't running, he was operating it at the time.
The trial court issued a jury charge that included a definition for "operating" over Mr. Kirsch's objection. The definition was taken out of Denton v. State, 911 SW2d 388 (Tex. 1995), a case in which the Court of Criminal Appeals had defined operating in the context of determining whether the evidence was sufficient to uphold a conviction. The Court of Appeals found no error and Mr. Kirsch appealed to the Court of Criminal Appeals.
In Kirsch v. State, No. PD-0245-11 (Tex. 2011), the Court of Criminal Appeals held that by providing a definition for operating, the trial court was making an improper comment upon the weight of the evidence. The Court held that it was proper for a jury charge to include definitions taken from the Texas Penal Code but, where the code offered no definition, it was up to the jury to decide just what the word meant.
Somethings are just best left unsaid.
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