ON APPELLANT 'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS HARRISON COUNTY
The appellant was convicted of his second driving while intoxicated (DWI) offense in violation of Texas Penal Code Section 49.04(a). The trial court, in its written charge to the jury, defined “operate” as “to exert personal effort to cause the vehicle to function.” The jury convicted the appellant and assessed his punishment. Citing Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995), the appellate court held that because the definition of operate, while not necessary, was not without reference to guiding rules or principles, it did not find that an abuse of discretion occurred. It also declined to address the appellant's improper-comment complaint as unpreserved because it concluded that the trial counsel did not lodge an objection on that ground and that the appellate counsel's brief was inadequate with respect to that potential point of error. The Texas Court of Criminal Appeals noted that the issue of error preservation was not relevant until harm was assessed because the degree of harm required for reversal depended on whether the error was preserved. Thus, the court concluded that the failure to preserve error was not a proper basis for the appellate court to decline to address whether the trial court improperly commented on the weight of the evidence. The court found that although the appellate court might articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on the appellate review, the trial court's inclusion of that definition in a jury charge might constitute an improper comment on the weight of the evidence. Further, because the trial court improperly impinged on the jury's fact-finding authority by limiting the jurors' understanding of what evidence could constitute “operating,” the instant court held that the trial court erred by defining that term in its charge to the jury. Accordingly, the court reversed the judgment of the appellate court and remanded to that court to determine whether the appellant suffered harm as a result of the erroneous instruction.