No. 04-07-00502-CR
Delivered and Filed April 16, 2008. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CR-7553 Honorable Raymond Angelini, Judge Presiding. AFFIRMED.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
Opinion by: CATHERINE STONE, Justice.
Joe Rodriguez was convicted in a bench trial of felony driving while intoxicated as a habitual offender. The trial court assessed a sentence of 25 years. On appeal Rodriguez argues: (1) the evidence is legally and factually insufficient to support his conviction; and (2) the trial court erred by implicitly denying his motion to suppress. We affirm.
Factual and Procedural Background
At approximately 3:00 a.m. on the morning of May 25, 2006, Kirby Police Sergeant Michael Alonzo pulled over a car for driving on a highway with a malfunctioning license plate light. Sergeant Alonzo asked the driver for his driver's license and proof of insurance, but the driver gave him a social security card and another form of identification. Sergeant Alonzo identified the driver as Joe Rodriguez. Sergeant Alonzo noted that Rodriguez had blood shot eyes and smelled of alcohol. Rodriguez slurred his words and was confused about where he was driving from. Sergeant Alonzo asked Rodriguez to exit the car, which Rodriguez did slowly and methodically. Rodriguez leaned against his vehicle while he stood, failed to understand where he was directed to stand, and was repeatedly reminded to remove his hands from his pockets. Sergeant Alonzo administered field sobriety tests and concluded that Rodriguez performed poorly. Consequently, Sergeant Alonzo arrested Rodriguez for driving while intoxicated. Officer Ida Vidal, who was a cover officer for the traffic stop, also believed Rodriguez was intoxicated. Additionally, Officer Vidal testified that a bottle of liquor and two cups of alcohol were found in the passenger compartment of Rodriguez's car. Rodriguez testified that he was not intoxicated on the night he was pulled over, but due to fatigue and his handicaps, he estimated that he was functioning at ninety percent of the normal use of his mental and physical faculties. Rodriguez testified that he has eighty-five percent hearing loss in his left ear, his left foot is smaller than his right foot, he was wearing narrow cowboy boots, and the parking lot where the sobriety tests were conducted had an uneven surface; all of which accounted for his confusion and poor performance on the sobriety tests. However, Rodriguez conceded on cross-examination that the two drinks he had that night may have contributed a little bit to his loss of faculties. Sufficiency of the Evidence
In his first and second points of error, Rodriguez challenges the legal and factual sufficiency of the evidence supporting his conviction. When considering a legal sufficiency challenge, we review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hernandez v. State, 198 S.W.3d 257, 260 (Tex.App.-San Antonio 2006, pet. ref'd). We affirm the trial court's judgment if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). When considering a factual sufficiency challenge, we view all the evidence in a neutral light and set aside the verdict only if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). The jury evaluates the credibility and demeanor of witnesses and determines the weight afforded contradicting testimony. Stogiera v. State, 191 S.W.3d 194, 196 (Tex.App.-San Antonio 2005, no pet.). The offense of driving while intoxicated requires the State to prove beyond a reasonable doubt: (1) a person (2) drove or operated a vehicle (3) in a public place (4) while intoxicated. Tex. Penal Code Ann. § 49.04 (Vernon 2003). Rodriguez contends the evidence was legally insufficient because the State failed to show he drove in an illegal or dangerous manner. Dangerous driving, however, is not an element of the offense. The State is only required to prove Rodriguez was intoxicated when he was driving on a public road. Based on their observations at time of the arrest, Sergeant Alonzo and Officer Vidal testified that Rodriguez was intoxicated. The testimony of an officer regarding her opinion that the defendant was intoxicated is sufficient to establish intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979); Henderson v. State, 29 S.W.3d 616, 622 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Sergeant Alonzo concluded Rodriguez was intoxicated because he had blood shot eyes and slurred speech, was confused, moved very slowly and methodically, smelled of alcohol, and performed poorly on the sobriety tests. In addition, Officer Vidal testified that Rodriguez had an open bottle and two plastic cups containing liquor in the passenger compartment of his car. Rodriguez's refusal to provide a breath specimen to determine his blood alcohol content may be considered as evidence against him. See Tex. Transp. Code Ann. § 724.061 (Vernon 1999) ("A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood . . . may be introduced into evidence at the person's trial."); Gaddis v. State, 753 S.W.2d 396, 399-400 (Tex.Crim.App. 1988). Even in the absence of evidence of erratic driving, the evidence was legally sufficient for the trial judge to conclude that Rodriguez was driving while intoxicated on a public road. Rodriguez also challenges the factual sufficiency of the evidence, adding to the arguments he made in his legal sufficiency challenge the contentions that his deafness, handicap, cowboy boots, and fatigue all contributed to the impression he was intoxicated and introduced reasonable doubt about the officers' assessment that Rodriguez was intoxicated. Although Rodriguez's arguments may undermine the weight of the evidence against him, reconciling conflicts in the evidence is within the exclusive province of the fact finder. See Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). We therefore overrule Rodriguez's first and second points of error challenging the legal and factual sufficiency of the evidence to support his conviction. Motion to Suppress
Prior to trial, Rodriguez filed a motion to suppress the evidence derived from an illegal detention and search, arguing that police did not have probable cause to pull him over. To preserve error on a motion to suppress, an appellant must either obtain a pretrial ruling on the motion or object to the evidence at trial. See Calloway v. State, 743 S.W.2d 645, 649-50 (Tex.Crim.App. 1988). Rodriguez contends that because much of his cross-examination, presentation of evidence, and closing argument addressed the probable cause for the arrest, the trial court implicitly overruled his motion to suppress. However, a motion to suppress is in effect a specialized objection to the admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App. 1981); Krause v. State, 243 S.W.3d 95, 102 (Tex.App.-Houston [1st Dist.] 2007, pet ref'd). A motion to suppress must be timely made with sufficient specificity to inform the trial court of the complaint so that the court has a full opportunity to address the issue presented. See Tex. R. App. P. 33.1(a); see also DeMoss v. State, 12 S.W.3d 553, 557 (Tex.App.-San Antonio 1999, pet. ref'd). Rodriguez failed to preserve error on his motion to suppress because he neither obtained a timely ruling, nor objected to the presentation of the evidence at trial. Moreover, Rodriguez never clearly presented his motion to suppress the evidence to the trial. Accordingly, Rodriguez's third point of error is overruled. Conclusion
Based on the foregoing, the judgment of the trial court is affirmed. Catherine Stone, Justice