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[This message was edited by MScheffler on 03-04-08 at .]

What's your concern exactly? Proving that he was driving? Asleep at the wheel with engine running and car in gear is definitely enough to prove that. Take a look at Freeman v. State, 69 S.W.3d 374 (Dallas 2002) and Barton v. State, 882 S.W.2d 456 (Dallas 1994).

Also remember: it is driving or operating. Just because the car isn't moving doesn't mean he isn't operating it.

Make sure you allege "drove or operated" lest you get into a semantic debate with a defense attorney about "driving." And allege it as a public place, not a public roadway, just in case the attorney says the shoulder is not the road.

Operation of a Vehicle (DWI)

Defendants often allege that the evidence is legally insufficient to establish operation of a motor vehicle. See TEX. PENAL CODE ANN. � 49.04(a) [*9] (Vernon Supp. 2003). While there is no statutory definition of "operate," the plain meaning of the word requires "effort, the doing of something, by the operator." Reddie v. State, 736 S.W.2d 923, 926 (Tex. App.-San Antonio 1987, pet. ref'd).

The Texas Court of Criminal Appeals has held that "To find operation under [the DWI] standard, the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of [the] vehicle in a manner that would enable the vehicle's use." Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). The court of criminal appeals also noted that while driving does involve operation, operation does not necessarily involve driving. Id. at 389; see also Barton v. State, 882 S.W.2d 456, 459 (Tex. App.-Dallas 1994, no pet.)

The facts of Barton are very similar to your case and the Court held that the defendant "operated" the vehicle:
The record reflects that at approximately 2:45 on a Saturday morning, Dallas police officer D. K. Nahoolewa approached appellant's vehicle on Fair Oaks Boulevard. Appellant's vehicle, with its engine idling and the transmission in neutral, was stopped on the roadway. The vehicle was located partially in an intersection controlled by a flashing yellow light. Appellant was sitting behind the wheel, asleep, with one foot on the brake and the other foot [**2] on the clutch. Appellant was alone, and there was no indication of another person in or near the vehicle.

Officer Nahoolewa tapped on the door in an attempt to arouse appellant. Unable to wake him, Nahoolewa opened the door and turned off the ignition. Then, the officer tapped on top of the truck and yelled at appellant. When appellant awoke, he attempted to drive his truck. After engaging the clutch, appellant put the gear shift into first and let out the clutch in an attempt to drive away. When appellant realized that the engine was not running, appellant reached to start the truck. Officer Nahoolewa then told appellant to step out of his vehicle. Officer Nahoolewa conducted several sobriety tests and arrested appellant.

The best place to get the answer is from your local prosecutor. If you got an answer from an ADA that you want to challenge, take it up the ladder to the first assistant or elected DA. Prosecutors are charged with exercising discretion in such matters, so it helps to know what they are looking for in their jurisdiction.