No. 05-05-01561-CR
Opinion Filed June 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80472-05. Affirm.
Before Chief Justice THOMAS and Justices FITZGERALD and FRANCIS.
Opinion By Chief Justice THOMAS.
A jury convicted Robert Nolan Cook of driving while intoxicated, third offense. During the punishment phase, appellant waived a jury and, pursuant to an agreement between the State and appellant, the judge sentenced appellant to ten years' imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
Allen police officer Ty Latham testified that at 10:37 a.m. on October 29, 2004, he saw appellant speeding in a red convertible while drinking a can of beer. Appellant was driving with the top down and a male passenger was in the front seat. Latham pulled appellant over. Appellant's breath smelled of alcoholic beverage, his speech was slurred, and he had an open can of beer between his legs. Appellant admitted he had been drinking the beer while he was driving, but said he had only one beer. Latham administered field sobriety tests to appellant, including the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand tests. Appellant did not say he had any physical handicaps or injuries that would affect his performance on the tests, nor did he indicate he did not understand Latham's instructions. Appellant exhibited six out of six clues on the HGN, three out of eight clues on the walk-and-turn, and two out of four clues on the one-leg stand. Latham did not have recording equipment on his motorcycle, so the tests were not taped. Latham believed appellant had lost the normal use of his mental and physical faculties due to alcohol consumption. He arrested appellant and another officer transported appellant to jail. In the intoxilyzer room at the jail, Latham asked if appellant would give a breath sample. Appellant refused a breath sample, but said he wanted to "take a blood test." Because Latham believed appellant was using the blood test as a delay tactic, he told appellant he was only requesting a breath sample. Latham testified suspects often want to be taken to the hospital to give a blood test as a delay tactic, then refuse to provide a sample once they are at the hospital. A videotape of appellant in the intoxilyzer room was played to the jury. While in the intoxilyzer room, appellant stated he had gallstones, chronic liver disease, and back problems, and he had taken a pain killer that morning. Allen police officer Richard Garayua testified he arrived on the scene after Latham had performed the field sobriety tests on appellant. Garayua observed that appellant had bloodshot and watery eyes and smelled of alcoholic beverage. Garayua put appellant in the patrol car, then he administered field sobriety tests on the passenger. Garayua saw two opened half-full cans of beer inside appellant's car, one in the center console and one under the driver's seat. After administering the HGN to the passenger, Garayua determined the passenger was not intoxicated. He released appellant's vehicle to the passenger, then transported appellant to jail. The State offered into evidence appellant's written stipulation that he had two prior DWI convictions. Appellant did not present any evidence at the trial. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim. A pp. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place after having been previously convicted two times of DWI. See Tex. Pen. Code Ann. §§ 49.04(a), 49.09(b)(2) (Vernon 2003 Supp. 2005). "Intoxicated" 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, or a combination of two or more of those substances or any other substance into the body. See id. § 49.01(2)(A). The uncorroborated testimony of an arresting officer is sufficient to prove the element of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979); Watkins v. State, 741 S.W.2d 546, 549 (Tex.App.-Dallas 1987, pet. ref'd). Discussion
Appellant argues the evidence is legally and factually insufficient because Latham administered only three tests and spent ten minutes with appellant before concluding he was intoxicated. Latham did not wait for a backup officer with recording equipment to videotape the field sobriety tests, refused to take appellant to the hospital for a blood test, and the videotape taken at the jail clearly shows appellant was not intoxicated. The State responds that the evidence is legally and factually sufficient to support the conviction. Latham saw appellant speeding while drinking a beer. Appellant admitted he drank the beer while driving, and later stated he had taken a painkiller that morning. Latham testified appellant's speech was slurred and his breath smelled of alcoholic beverage. Latham, who is certified in administering field sobriety tests, determined that appellant had lost the normal use of his mental and physical faculties due to the consumption of alcohol. Garayua also observed that appellant's eyes were bloodshot and watery. Although appellant had said he would give a blood sample while at the jail, he refused to give a breath sample even after Latham explained he was asking only for a breath sample. It was the jury's function to resolve any conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 9. We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.).Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the jury's determination that appellant was driving while intoxicated. See Lane, 151 S.W.3d at 191-92; Zuniga, 144 S.W.3d at 484-85. We resolve appellant's issues against him. We affirm the trial court's judgment.