No. 05-04-01542-CR
Opinion Filed September 23, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law Number One, Collin County, Texas, Trial Court Cause No. 001-86143-03. Affirmed.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
Opinion By Justice LANG-MIERS.
A Collin County jury convicted appellant of driving while intoxicated. See Tex. Pen. Code Ann. § 49.04 (Vernon Supp. 2004-05). The trial court assessed punishment at 90 days' confinement and a fine of $800.00. It then suspended appellant's confinement and placed him on community supervision for 12 months. Appellant argues that the evidence was factually insufficient to support the verdict and that the State interjected evidence outside of the record during closing argument. We affirm.
I. FACTUAL BACKGROUND
Around 3:30 a.m. on October 19, 2003, Officer Bass clocked appellant driving 74 miles per hour in a 60-mile-per-hour zone on Highway 75 in Plano. Bass turned on his emergency lights and shone his spotlight into appellant's rearview mirror to get him to pull over. While conducting the traffic stop, Bass smelled alcohol on appellant and discovered a beer "koozy" containing a partially-consumed can of beer. The can was still cool to the touch. He also noted that appellant had heavy, drowsy eyes. Bass called backup Officer Rude and, while waiting for him to arrive, asked appellant where he was going. Appellant explained that he was driving from Frisco to Allen via South Plano. Bass thought this was an unusually circuitous route and thought appellant might be lying or did not know where he was. Bass also asked appellant whether he had been drinking, and appellant claimed he had been drinking earlier at a Texas Tech game. Once appellant stepped out of the car, he was fidgety, and Bass believed he may have been swaying. Bass then conducted three standardized field sobriety tests. Bass admitted that the horizontal gaze nystagmus (HGN) test was conducted improperly. But Bass stated that appellant failed both the walk-and-turn and one-legged stand tests. II FACTUAL SUFFICIENCY
In his first issue, appellant complains that the evidence was factually insufficient to prove the element of intoxication, specifically that he did not have the normal use of his mental or physical faculties and that he lost his faculties via the introduction of alcohol. See Tex. Pen. Code Ann. § 49.01(2)(A). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and unjust, or the contrary evidence is so strong that the State could not have met the "beyond a reasonable doubt" standard of proof. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A jury renders a clearly wrong and unjust verdict when its finding "shocks the conscience" or "clearly demonstrates bias." Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). The fact finder is entitled to judge the credibility of the witnesses and the weight to be given testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Appellant exhibited several symptoms that he had lost the normal use of his mental and physical faculties via the introduction of alcohol. He was speeding when Bass initiated the traffic stop and reacted slowly to Bass's attempt to pull him over. Appellant smelled of alcohol and was driving a suspiciously attenuated route from his friend's house to his own. When appellant stepped out of the car, he appeared to move in a manner that would mask any inability to maintain his balance and then failed two properly-executed field sobriety tests. He was driving with a cool, partially-consumed can of beer in his center console, also suggesting that he was drinking and driving. Appellant argues that he had not lost the normal use of his mental and physical faculties and claims, in support of his argument, that he was driving acceptably other than speeding, spoke without slurring, produced his license and insurance card without fumbling, exited his vehicle without difficulty, maintained his balance during the administration of the HGN test, and demonstrated some awareness that the DIC-24 form bore legal warnings. He also argues, contrary to Bass's testimony, that Bass did not consider more than two factors in determining whether appellant was intoxicated by alcohol. Nevertheless, the jury heard all of the evidence and made a determination, exclusively within its province, that appellant was guilty. Appellant's arguments do not undermine the multiple factors suggesting that he was intoxicated by alcohol — including his smell, appearance, confession to drinking earlier, and an open beer can in plain view. And any action seemingly indicating normal use of mental and physical faculties does not make the proof of guilt so obviously weak nor the contrary proof so overwhelming that it renders the guilty verdict clearly wrong and manifestly unjust. See Ford v. State, 129 S.W.3d 541, 551 (Tex.App.-Dallas 2003, pet. ref'd). We overrule appellant's first issue. III. JURY ARGUMENT
In his second issue, appellant claims that the State argued outside of the record during closing argument by stating, "You have seen [appellant] in court, he is not a small man, and a few beers during the Texas Tech game most likely would have worn off by this point." Appellant objected that he was arguing outside of the evidence, and the trial court overruled his objection. The State argues that counsel was making a reasonable deduction from the evidence. We agree. Courts have approved four general areas of argument: (1) summation of the evidence, (2) any reasonable deduction from the evidence, (3) an answer to the argument of opposing counsel, and (4) plea for law enforcement. Wesbrook, 29 S.W.3d at 115. Counsel may exercise wide latitude in drawing inferences from the evidence, so long as they are reasonable, fair, legitimate, and counsel offers them in good faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). The purpose of closing argument is to assimilate the evidence to assist the fact-finder in drawing proper conclusions from the evidence. Id. at 400. The jury is then free to accept or reject such conclusions and inferences. Id. In reviewing complaints about comments made during jury argument, the appellate courts review the comments within the context of the entire argument. Drew v. State, 743 S.W.2d 207, 220 (Tex.Crim.App. 1987). In this case, the State deducted from the evidence that when appellant was stopped, he would not still have been suffering the effects of beer he consumed during the Texas Tech game. In fact, defense counsel first referred to this evidence during his opening statement: "[Appellant] tells [Bass] he had been drinking earlier. He is a Texas Tech grad and he had gone over to a friend's house in Frisco to watch the game and they stayed up talking and then he went home." Bass stated during his testimony: "I asked [appellant] if he had been drinking that night and he said he had been drinking earlier at the Texas Tech game." Coupled with his observation of appellant's size, counsel was able to make a reasonable deduction that when Bass stopped him, appellant was not intoxicated from beer he consumed earlier during the game. See Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App. 1983) (noting that attorneys may usually comment on impressions made upon them from observation when the jury has equal opportunity to make the same observation) (citing Langley v. State, 129 Tex. Crim. 254, 86 S.W.2d 755 (1935)). Appellant argues that his case resembles Jordan v. State in which the Court of Criminal Appeals held that counsel improperly referred to needle tracks on the defendant's arms. Jordan, 646 S.W.2d at 948. But in Jordan, counsel was referring to evidence that was neither observable by the jury nor before the jury as record evidence. In contrast, counsel in this case made a reasonable deduction from evidence in the record and plain observation. We overrule appellant's second issue. IV. CONCLUSION
We conclude that appellant has failed to show that the evidence was factually insufficient to support the verdict. Further, the contested closing argument constituted a reasonable deduction from the evidence and within the bounds of permissible jury argument. We affirm the trial court's judgment. Tex.R.App.P. 43.2(a).