Opinion
NO. 02-14-00039-CR
11-06-2014
BARCLAY EDWARD BERDAN II APPELLANT v. THE STATE OF TEXAS STATE
FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
TRIAL COURT NO. 1327699
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
In a single issue in his two-and-a-half page brief, Appellant Barclay Edward Berdan II appeals his conviction for driving while intoxicated, asserting that "no rational trier of fact could have determined the element of intoxication beyond a reasonable doubt." We affirm.
II. Statement of Facts
Berdan drank with a friend in the West 7th District of Fort Worth. Leaving the bar for home, Berdan struck a post causing the rear of his vehicle to swing out, blocking the second lane of traffic. Fort Worth Police Officer Brian White observed the accident. Officer White testified that Berdan willingly stepped out of his vehicle, and as Berdan exited the vehicle, he stumbled backward. Berdan had blood shot eyes, and Officer White could smell alcohol on Berdan's breath. After the initial observations of intoxication, Officer White decided to set up a field sobriety evaluation. When he asked Berdan to step in front of the camera, Berdan told White "he was going to refuse any tests that [Officer White] was gonna give him for the field sobriety evaluation." Officer White asked Berdan to do the field sobriety evaluation tests twice. He refused both times without giving a reason for his refusal. Officer White testified that he believed that Berdan had lost the normal use of his mental and physical faculties due to the introduction of alcohol into his body. Believing this, Officer White then arrested Berdan and took him to the City of Fort Worth jail. In the jail parking lot, Berdan was read his DIC-24 statutory warning and was then asked for a sample of his breath to be analyzed for alcohol. He refused. Berdan also refused to sign a form indicating that he was refusing to take any test. A jury convicted Berdan for driving while intoxicated and this appeal followed.
There are three different tests that the Fort Worth Police Department perform: the horizontal gaze nystagmus, the walk and turn, and the one leg stand.
Before leaving the scene, MedStar EMS arrived to treat Berdan. He had no injuries that would have prevented him from performing the tests.
The DIC-24 reads as follows: If you refuse to give a specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not you are subsequently prosecuted for this offense.
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III. Sufficiency of the Evidence
Berdan asserts that the evidence presented at trial was insufficient to support the verdict of guilt because no rational trier of fact could have determined the element of intoxication beyond a reasonable doubt.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
B. Analysis
The State responds that Berdan's issue "is inadequately briefed and should be summarily overruled." We agree. Texas Rule of Appellate Procedure Rule 38.1 provides: "The brief must state concisely and without argument the facts pertinent to the issues or points presented . . . . The statement must be supported by record references . . . . The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(g), (i).
Further, this court has no obligation to construct or compose Berdan's issue, facts, and arguments "with appropriate citations to authorities and to the record." Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008). We then have no obligation to consider inadequately briefed points of error. Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).
Berdan sets forth the factual background of the case in three sentences and then informs the court, "[f]urther references to the testimony used by the State to obtain Appellant's conviction will be reserved to the argument and authorities section of his point on appeal, below, particularly with respect to weather [sic] Mr. Berdan had lost the normal use of his mental or physical faculties."
No such "[f]urther references to the testimony" appear in the brief other than a single global record reference and there is nothing contained in the brief regarding the loss of "the normal use of his mental or physical faculties." There are three case citations regarding circumstantial evidence but no nexus is drawn between the facts of this case and those cases; that is, there is no argument made in this regard. There is also a total of one global record reference. We hold that the single issue before us is inadequately briefed and presents nothing for review. See Tex. R. App. P. 38.1 (g), (i).
In the interest of justice however, we will review the facts under the sufficiency of evidence standard. According to the Texas Penal Code, intoxication means "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body." Tex. Penal Code Ann. § 49.01(2)(A) (West 2011). Further, a person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial. Tex. Transp. Code Ann. § 724.061 (West 2011). And the jury may consider this as evidence of guilt. See Huffman v. State, No. 02-13-00175-CR, 2014 WL 3696132, at *2 (Tex. App.—Fort Worth July 24, 2014, no pet. h.) (mem. op) (refusal may be considered as evidence of guilt); Russell v. State, 290 S.W.3d 387, 397 (Tex. App.—Beaumont 2009, no pet.) (jury may infer defendant's refusal as evidence that he believed he was intoxicated); Finley v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991) (jury may consider a refusal as evidence of guilt). Considering the foregoing and that Officer White testified as to the physical condition of Berdan, which indicated intoxication, and that in his opinion Berdan was in fact intoxicated, that is, had lost the normal use of his mental and physical faculties due to alcohol consumption, we hold that this evidence meets the sufficiency of the evidence standard previously set forth. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Winfrey, 393 S.W.3d at 768.
IV. Conclusion
Having found that the briefing for Berdan's sole issue was inadequate and reviewing the evidence in the interest of justice for sufficiency and having found sufficient evidence to support the jury's verdict, we affirm the trial court's judgment.
/s/ Bob McCoy
BOB MCCOY
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 6, 2014