Opinion
No. 11-07-00367-CR
Opinion filed August 7, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 385th District Court Midland County, Texas, Trial Court Cause No. CR33119.
Panel consists of: WRIGHT, C.J., McCALL, J., AND STRANGE, J.
MEMORANDUM OPINION
The jury convicted James Bartholomew Reyes of the offense of driving while intoxicated (a third degree felony) and assessed his punishment at confinement for five years and a $5,000 fine. Pursuant to the jury's recommendation, the trial court suspended the imposition of the sentence and placed appellant on community supervision for seven years. We affirm. Issues on Appeal In two issues, appellant challenges both the legal and factual sufficiency of the evidence to support the verdict. Specifically, appellant argues that there is insufficient evidence that he was driving. Standards of Review In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. Evidence Presented Sergio Hernandez testified that at the time of the incident he was an officer with the Midland Police Department. While he was on patrol at 3:30 a.m., he was dispatched to the scene. Officer Hernandez was the first officer to respond and arrived within less than five minutes. Officer Hernandez found appellant sitting next to a vehicle that had been driven into an incline and had struck a tree. Appellant's speech was slurred, and he had a strong odor of alcohol on his breath. Officer Hernandez saw a bottle of beer on the driver's seat. Appellant was "very unsteady" on his feet. Officer Hernandez testified that appellant fell when he tried to stand. Officer Hernandez caught appellant and, out of concern for appellant's safety, told him to sit back down. Appellant tried to respond to Officer Hernandez's questions, but his "words wouldn't come out." Appellant did not appear to be in pain or to be injured other than a small cut beneath his eye. Officer Hernandez concluded that appellant had lost the normal use of his mental and physical faculties and was intoxicated. Officer Hernandez testified that there were no other vehicles involved in the accident and no other people in the area. There was not a lot of traffic either. Midland Police Officer Joseph Matthew Donald Moeller testified that Officer Hernandez arrived just "seconds" before he did. Appellant's black 1990 Grand Am had hit a tree, sustaining "significant" damage to the front end. No other vehicles were involved, and no one other than appellant was in the area. Officer Moeller determined that appellant had been driving his Grand Am. Officer Moeller further testified that it was possible that appellant had crossed all the lanes of traffic before hitting the tree. Officer Moeller testified that appellant "had either used the bathroom on himself or spilled something on himself." Officer Moeller further testified that he did not "get down" to "smell very close" to determine exactly how appellant got wet. Appellant's balance was so poor that he could not stand. His eyes were extremely bloodshot, and he smelled of alcohol. Officer Moeller concluded that appellant was intoxicated. Appellant was transported to the hospital where he refused to give a blood sample. Analysis The jury, as the finder of fact, was the sole judge of the weight and credibility of the witnesses' testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007) and art. 38.04 (Vernon 1979). Due deference must be given to the factfinder's determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 10-11; Jones v. State, 944 S.W.2d 642 (Tex.Crim.App. 1996). We review the jury's weighing of the evidence but cannot substitute our judgment for that of the factfinder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 133. This court has the authority to disagree with the factfinder's determination "only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Johnson, 23 S.W.3d at 9. After applying the requisite standards of review, we find that the evidence is both legally and factually sufficient to support the jury's verdict. Officers Hernandez and Moeller were the only witnesses. On cross-examination, both officers acknowledged that they were not trained medical personnel other than as first responders. Neither Officer Moeller's determination that appellant had driven his vehicle nor both officers' testimony concerning the lack of other people and vehicles at that early morning hour was challenged. A reasonable jury could have determined that appellant committed the offense as alleged. Moreover, the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust, and the verdict is not against the great weight and preponderance of the conflicting evidence. Appellant relies upon the cases of State v. Davis, 217 S.W.3d 358 (Mo.App. 2007, no pet.); Coleman v. State, 704 S.W.2d 511 (Tex.App.-Houston [1st Dist.] 1986, pet. ref'd); Reynolds v. State, 902 S.W.2d 558 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd); Ballard v. State, 757 S.W.2d 389 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd); and Reddie v. State, 736 S.W.2d 923 (Tex.App.-San Antonio 1987, pet. ref'd). These cases are factually distinguishable, and we decline to extend their holdings to the facts of this case. We find that the evidence is both legally and factually sufficient. The issues are overruled. Holding The judgment of the trial court is affirmed.