Opinion
No. 05-05-00446-CR
Opinion Filed January 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 7, Dallas County, Texas, Trial Court Cause No. MB0321213-H. Affirmed as Modified.
Before Justices O'NEILL, FITZGERALD, and LANG.
OPINION
A jury convicted Adrian Titman King of driving while intoxicated (DWI). During the punishment phase, appellant pleaded true to one enhancement paragraph that alleged a prior DWI conviction. Pursuant to an agreement between the State and appellant, the trial court found the enhancement paragraph true, sentenced appellant to 365 days in the county jail, probated for two years, and assessed a $1000 fine. In a single issue, appellant contends the evidence is factually insufficient to support the conviction. We affirm. At about 1:30 a.m. on September 24, 2003, State trooper Darius Hamberlin was patrolling the Dallas North Tollway when he saw a red Lexus speeding and moving from lane to lane. The posted speed limit was fifty-five miles-per-hour, but the vehicle was traveling over seventy miles-per-hour. Hamberlin pursued the vehicle and activated his overhead flashing lights. After the vehicle took the Frankford Road exit and stopped in a parking lot between two restaurants, Hamberlin approached the vehicle. He saw appellant sitting in the driver's seat. Hamberlin testified that before he actually reached appellant's car, he smelled the odor of alcoholic beverage. He asked appellant for his driver's license and if he had anything to drink. Appellant "fumbled around" for several seconds before he produced the license. Hamberlin testified appellant's movements were slow, his eyes were bloodshot, he had the odor of alcoholic beverage on his breath, and he acted disoriented. However, appellant was able to answer Hamberlin's questions. Hamberlin testified appellant said that he had four glasses of wine that evening, his last drink was at about 1:00 a.m., he had a sleep disorder, and he had been taking Adderall. When Hamberlin asked appellant when was the last time he had any sleep, appellant said, "a week ago." Hamberlin administered field sobriety 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, six out of eight clues on the walk-and-turn, and four out of four clues on the one-leg stand. Hamberlin testified he determined that appellant had lost the normal use of his mental and physical faculties due to alcohol consumption. He arrested appellant and transported him to jail. Appellant refused to give a breath or blood sample. Hamberlin testified that although appellant gave the proper turn signal when he exited the tollway, stopped his car in a normal manner, and was able to articulate his answers properly, Hamberlin did not believe appellant was capable of safely operating the car that night due to intoxication. A videotape of appellant performing field sobriety tests at the scene was shown to the jury. 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). 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)(A). Among other things, evidence of intoxication may include: (1) slurred speech; (2) bloodshot eyes; (3) the odor of alcohol on the person or on the breath; (4) an unsteady balance; and (5) a staggered gait. See Cotton v. State, 686 S.W.2d 140, 149 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). Appellant argues the evidence is factually insufficient because it shows he did have the normal use of his mental and physical faculties at the time of his arrest. Appellant contends he operated his vehicle appropriately when he exited the highway and stopped, and he only violated two traffic laws that many other drivers also violate. Appellant asserts he has a sleep disorder which may have caused his movements to appear slow, but his speech was clear and crisp. The State responds that the evidence is factually sufficient to conviction. The jury was the sole judge of the weight and credibility of the witness and his testimony, and it was the jury's function to resolve any conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). Having reviewed all of the evidence under the proper standard, we conclude the evidence is factually sufficient to support the jury's determination that appellant was driving while intoxicated. See Zuniga, 144 S.W.3d at 484-85. We resolve appellant's sole issue against him. In a cross-point, the State asks this Court to modify the trial court's judgment to show that appellant was convicted of a class A misdemeanor offense. The trial court found that appellant had one previous DWI conviction, which elevated the offense from a class B misdemeanor to a class A misdemeanor. See Tex. Pen. Code Ann. § 49.09(a) (Vernon Supp. 2005). The trial court's judgment incorrectly states the offense is a class B misdemeanor. Therefore, the judgment is incorrect. We sustain the State's cross-point. We modify the section entitled "Offense Convicted Of" in trial court's judgment to show the offense was a class A misdemeanor. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.