No. 05-08-00189-CR
Opinion issued February 10, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 3, Dallas County, Texas, Trial Court Cause No. MB06-37667C.
Before Justices WRIGHT, O'NEILL, and LANG.
Opinion By Justice WRIGHT.
Frederick H. Farnoush waived a jury and pleaded not guilty to driving while intoxicated. After finding appellant guilty, the trial court assessed punishment at 150 days in the county jail, probated for eighteen months, and a $700 fine. In a single issue, appellant contends the evidence is legally insufficient to support the conviction. We affirm.
Background
On February 11, 2006, Irving police officer Taylor was dispatched to Highway 183 on a suspected drunk driver call. A civilian witness reported following a vehicle that was moving erratically. When Taylor drove to the area, he saw a vehicle swerving in and out of the lanes. The vehicle also went onto the shoulder of the road in front of traffic coming onto the highway. Taylor stopped the vehicle. Appellant was in the driver's seat. Taylor testified appellant's eyes were bloodshot and he had the odor of an alcoholic beverage on his breath. Appellant had pulled his vehicle over normally and presented his driver's license in a normal manner when asked. Appellant said he had "a little bit to drink" but did not drink often. Taylor, who is certified to give standardized field sobriety tests, administered several tests to appellant, including the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand tests. Appellant exhibited six out of six clues on the HGN, five out of eight clues on the walk-and-turn, and four out of four clues on the one-leg stand. Taylor believed appellant had lost the normal use of his mental and physical faculties due to alcohol consumption. Before Taylor arrested him, appellant said he was "a little tipsy, but not drunk." A videotape of appellant performing the field sobriety tests was admitted into evidence without objection and played to the trial court. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment 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 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. See Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). "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). Among other things, evidence of intoxication may include: (1) bloodshot eyes; (2) the odor of alcohol on the person or on the breath; and (3) an unsteady balance. See Cotton v. State, 686 S.W.2d 140, 142 n. 3 (Tex.Crim.App. 1985). 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 contends the evidence is legally insufficient because there was no probable cause to stop his vehicle and no one saw him driving while intoxicated. Appellant asserts that because he pulled over, parked his vehicle, and presented his driver's license normally, the evidence is insufficient to show he was driving while intoxicated. The State responds that appellant's vehicle was lawfully stopped and the evidence is sufficient to support appellant's conviction. There was evidence that Taylor was dispatched to the offense location on a suspected drunk driver call. Taylor saw appellant's vehicle moving in and out of lanes and onto the shoulder of the road, impairing oncoming traffic. These facts were sufficient to create reasonable suspicion justifying appellant's detention for further investigation. See Terry v. Ohio, 392 U.S. 1, 19-20 (1968); see also Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App. 1989). There was evidence that appellant admitted consuming an alcoholic beverage and stated he was "tipsy" but not intoxicated. Taylor testified appellant had bloodshot eyes, and his breath smelled of an alcoholic beverage. Taylor, who is certified in administering field sobriety tests, determined appellant did not have the normal use of his mental and physical faculties due to alcohol consumption because appellant did not perform the field sobriety tests satisfactorily. See Watkins, 741 S.W.2d at 549. Viewed under the proper standard, we conclude the evidence is legally sufficient to support appellant's conviction for driving while intoxicated. See Lane, 151 S.W.3d at 191-92; Cotton, 686 S.W.2d at 142. We resolve appellant's sole issue against him. We affirm the trial court's judgment.