Opinion
No. 07-18-00222-CR
08-21-2019
SHAWN PATRICK MOORE, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court Potter County, Texas
Trial Court No. 73,832-A, Honorable Dan L. Schaap, Presiding
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
Following a plea of not guilty, appellant, Shawn Patrick Moore was convicted by a jury of driving while intoxicated with two prior DWI convictions, a third-degree felony. Through two issues, appellant questions the sufficiency of the evidence establishing that he (1) was driving the vehicle that was involved in the collision, and (2) was operating a vehicle in a public place while intoxicated. We affirm the judgment of the trial court.
TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2018).
Background
On March 15, 2017, Robert Allen was the night desk clerk at the Executive Inn motel in Amarillo. Around 5:00 a.m., he heard a loud crash. He looked out the window and saw that a red SUV had hit nose-to-nose a Kia Sorento in the parking lot. According to Allen, the rear tires of the SUV were still spinning like someone was standing on the accelerator. Allen went outside and knocked on the door of the SUV, but the driver did not respond. As Allen backed away from the SUV, the driver got out of the vehicle. Allen recognized the driver as "Shawn Moore" because he had been staying at the motel for a while. After determining that no one was seriously injured in the collision, Allen returned to the motel office and called the police.
At approximately 5:30 a.m., Amarillo police officers responded to the call involving a collision at the Executive Inn parking lot. When the officers arrived, James and Katrina Sparger were standing in the parking lot next to their Kia Sorento. The driver of the red SUV was not present when the police arrived. James showed the officers the damage to his vehicle, and also pointed out the red Tahoe or Yukon that collided with his Kia.
James explained to the police officers that around 5:00 a.m., he heard a big bang and, when he looked outside, he saw the red SUV nose-to-nose with his Kia. As James approached the vehicles in the parking lot, he could see someone in the driver's seat of the red SUV "like his head was down." James did not get a good look at who was behind the wheel of the red SUV because it was still dark outside. The driver eventually took his foot off of the accelerator before he "backed it up and parked back on the far end" of the parking lot. As the driver got out of the red SUV, he approached James stumbling. Katrina stated that, as the driver approached James, he was "slurring his words and stumbling." When James asked the driver if he'd been drinking, the driver said, "I've had two beers, please don't call the cops." The driver then left the scene saying that he was going to his room. According to James, the person who hit James's vehicle was the same person police officers later placed in a patrol car.
During trial, one of the officers identified photographs of appellant's vehicle after the vehicle was moved. Appellant's vehicle is depicted backed up to the curb, straddling two parking spaces.
When investigating officers ran the registration on the red SUV, they were able to confirm that it was registered to appellant. After being notified that appellant was staying at the motel, officers went to appellant's room. When appellant opened the door, he was holding a bottle of Smirnoff Ice. According to the officers, the bottle was not full; it was missing "about a quarter" of its contents. While speaking with appellant, the officer observed that appellant's eyes were glassy and bloodshot, there was a strong odor of alcohol on his breath, and his speech was slurred. The officer brought appellant to the front of the motel to complete the investigation paperwork. Appellant was seated in the backseat of an officer's patrol car. At approximately 6:15 a.m., appellant was arrested for suspicion of driving while intoxicated.
Appellant voluntarily agreed to provide a sample of his blood and he was transported to Northwest Texas Hospital for the blood draw. After the blood was drawn, it was taped with a green integrity seal and transported to the DWI blood lockbox at the police station. Another officer checked the sealed blood kit out from the evidence room at the police department and delivered it to the Texas Department of Public Safety laboratory. After testing, the TDPS forensic scientist determined that the blood sample results reflected a blood alcohol content of 0.169 grams of alcohol per 100 milliliters of blood, more than two times the legal limit in Texas.
Appellant was indicted for the offense of felony DWI. During trial, the above evidence was admitted. Both James and Katrina were asked during the trial if they had seen the driver again after the night of the collision, but both answered that they had not. Neither specifically identified appellant as the driver in court. Nevertheless, the jury found appellant guilty of felony DWI.
Following a hearing on punishment, the jury sentenced appellant to seven years imprisonment and a $5,000 fine but recommended that both the prison sentence and fine be suspended in favor of community supervision. The trial court accepted the jury's verdict and appellant's sentence was suspended for a period of five years.
Through two issues, appellant questions the sufficiency of the evidence establishing that he (1) was driving the vehicle involved in the collision, and (2) was operating a vehicle in a pubic place while intoxicated.
Standard of Review
In determining whether the evidence is sufficient to support a conviction, we apply the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under this standard, we are to consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). Sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, regardless of whether that evidence was properly or improperly admitted. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Applicable Law
To establish the offense of felony driving while intoxicated, the State must prove, beyond a reasonable doubt, the person (1) was intoxicated, (2) while operating a motor vehicle, (3) in a public place, and (4) has previously been convicted two times of an offense related to the operation of a motor vehicle while intoxicated. TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2); Ex parte Benson, 459 S.W.3d 67, 74 (Tex. Crim. App. 2015).
Evidence as to the identity of the perpetrator of an offense can be proved by either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence. Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016), cert. denied, ___U.S.___, 137 S. Ct. 1207, 197 L. Ed. 2d 251 (2017). The absence of a formal, in-court identification does not render the evidence insufficient on the issue of identity. Espinoza v. State, No. 02-18-00324-CR, 2019 Tex. App. LEXIS 1317, at *15 (Tex. App.—Fort Worth Feb. 21, 2019, pet. ref'd); Ocanas v. State, No. 07-17-00313-CR, 2018 Tex. App. LEXIS 7449, at *6 (Tex. App.—Amarillo, Sept. 6, 2018, no pet.) (mem. op., not designated for publication.).
The Penal Code defines "intoxicated" as (1) "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; or [(2)] having an alcohol concentration of 0.08 or more." TEX. PENAL CODE ANN. § 49.01(2) (West 2011). Indicia of intoxication include any "evidence that would logically raise an inference that the defendant was intoxicated" including erratic driving; post-driving behavior such as stumbling, swaying, slurring, or mumbling words; inability to perform field sobriety tests or follow directions; bloodshot eyes; and any admissions by the defendant concerning about how much he had been drinking. Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App 2010).
Analysis
Issue One
In his first issue, appellant contends that the evidence is insufficient to show that he was the driver of the vehicle involved in the collision. Although James and Katrina failed to make an in-court identification of appellant as the driver, there was other evidence that supported the jury's finding that appellant was the driver of the red SUV involved in the collision with the Kia.
The evidence at trial established that moments after three witnesses heard a loud crash, they observed a red SUV that had crashed into a parked vehicle. Immediately after the impact, two of the witnesses, James and Katrina, watched appellant put the red SUV in reverse and attempt to back it into another parking space. They also saw appellant exit the red SUV and engaged him in a conversation. After the police arrived, James identified the red SUV as the vehicle that crashed into his Kia. There was also trial evidence that appellant was the registered owner of the red SUV, and that appellant was registered as a guest at the motel. James and Katrina testified that the person who hit their vehicle was the same person that the police placed in the patrol car. One of the officers identified appellant as the suspect who was driving the vehicle involved in the collision with the Kia and the man the police subsequently arrested for DWI.
There is no evidence in the record which tends to suggest anyone other than appellant operated the red SUV.
Although appellant contends that Allen's testimony identifying appellant as the driver was contradicted by the written statement Allen gave the police, the jury is the exclusive judge of the credibility of witnesses and the weight of the evidence. See Campbell v. State, No. 07-10-00333-CR, 2012 Tex. App. LEXIS 1999 at*7 (Tex. App.—Amarillo Mar. 13, 2012, pet. ref'd) (mem. op., not designated for publication). We defer to the jury's responsibility to fairly resolve conflicts in the evidence, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a sufficiency review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
The statement that Allen gave to police on the morning of March 15, 2017, is not part of the record.
Considering all the evidence in a light most favorable to the verdict, a rational jury could have found that appellant was the driver of the red SUV beyond a reasonable doubt given the direct and circumstantial evidence of his identity, and all the reasonable inferences to be drawn therefrom. See Balderas, 517 S.W.3d at 766. Appellant's first issue is overruled.
Issue Two
In his second issue, appellant contends that there is insufficient evidence to establish that he was intoxicated at the time he was operating a motor vehicle. Appellant suggests that there are gaps of time in the State's proof from which the jury could conclude that appellant was not intoxicated while operating a motor vehicle, and appellant questions the chain of custody relating to whether the blood that was tested belonged to appellant.
The jury heard evidence that appellant drove his vehicle into a parking space that was occupied by another vehicle and continued to accelerate after the collision. Shortly thereafter, appellant was seen stumbling and slurring his words when he exited his vehicle. Appellant admitted to James and Katrina that he had had two beers. Allen concluded that appellant was drunk because Allen could smell alcohol on appellant's breath, appellant slurred his words, and appellant's voice sounded different. Likewise, the investigating officers noted that appellant's eyes were red, glassy, and bloodshot; he slurred his words; and a strong odor of alcohol emanated from appellant. Finally, a sample of appellant's blood revealed an alcohol concentration of 0.169, more than two times the legal limit in Texas.
While appellant questions the chain of custody relating to the blood that was tested, in a sufficiency review, we review all the evidence, even evidence which was improperly admitted. Jenkins, 493 S.W.3d at 599; Clayton, 235 S.W.3d at 778.
The combined and cumulative force of this evidence and all reasonable inferences therefrom, when viewed in the light most favorable to the verdict, supports the jury's finding that appellant was intoxicated while driving. Considering all of the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found appellant guilty of DWI beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Queeman, 520 S.W.3d at 622. Consequently, we overrule appellant's second issue.
Conclusion
Having overruled both of appellant's issues, we affirm the trial court's judgment.
Judy C. Parker
Justice Do not publish.