No. 05-05-01461-CR
Opinion issued April 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 3, Dallas County, Texas, Trial Court Cause No. MB04-58017-C. Affirmed.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
Opinion By Justice FITZGERALD.
Anthony Joe Tidwell was convicted, following a trial before the court, of driving while intoxicated (DWI). Pursuant to an agreement between the State and appellant, the judge sentenced appellant to 120 days in the county jail, probated for fifteen months, and assessed a $500 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
Sometime after midnight on August 8, 2004, Dallas police officer Stephen Geron saw a small truck and a large F-250 truck stopped at the base of a merge ramp on Stemmons Freeway. Geron pulled over, activated his overhead flashing lights, and got out to talk with the occupants of the smaller truck, who were behind the larger truck. The occupants said they had been involved in a collision with the larger truck. Geron identified appellant as the driver of the larger truck. A woman sat in the front passenger seat next to appellant. Geron testified that while he talked with the occupants of the small truck, appellant drove away from the scene heading south. Geron chased appellant until they exited the freeway near Colorado Boulevard. Geron testified appellant safely pulled his vehicle over. When Geron questioned appellant about a possible accident, appellant said there was no accident or any contact with the other vehicle, but there had been a "road rage" incident. Geron testified appellant's breath smelled of alcoholic beverage. Appellant said he was driving to his home in DeSoto, and he had drank three beers that evening. Geron radioed for a DWI officer to administer field sobriety tests to appellant. Dallas police officer B.R. Tate testified he arrived at the scene at 1:42 a.m. He observed that appellant had bloodshot eyes and his breath smelled of alcoholic beverage. Tate 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, two out of eight clues on the walk-and-turn, and two out of four clues on the one-leg stand. Tate also instructed appellant to recite the alphabet, count backward, and do a stationary balance test. Appellant could not recite the alphabet correctly, missed two numbers counting backward, and did not correctly perform the stationary balance test. Tate testified appellant indicated he understood the instructions for each test. During the stationary balance test, appellant said, "I can't do that sober." Tate testified he determined that appellant had lost the normal use of his mental and physical faculties due to the consumption of alcohol. He arrested appellant and took him to the jail. A videotape of appellant performing the field sobriety tests was played for the trial judge. On the videotape, appellant stated he finished the twelfth grade in school, could sing the alphabet, but could not do the one-leg stand when he was sober. Appellant said he drank a lot of water after he drank three beers. Appellant began the alphabet test twice, but could not say the alphabet either time. During the backward counting test, appellant was instructed to count backward from forty-nine to thirty-two; appellant counted from forty-eight to thirty-one. During the one-leg stand test, appellant laughed throughout the instructions and held out his arms slightly for balance. Appellant refused to give a breath or blood sample, and repeatedly asked the officer to remove the handcuffs because he was claustrophobic. Betsy Mitchell, appellant's girlfriend, testified she and appellant had dinner at a restaurant and then went to a club for drinks. Appellant was driving his truck and, although they both had been drinking that evening, she did not have any concerns for her safety with appellant driving. Mitchell testified they were heading home when another vehicle entered their lane and hit the side of appellant's truck. Both vehicles pulled over. Because the occupants of the other vehicle did not speak English, appellant got back into the truck and left. Then, a police officer pulled appellant over at Colorado Boulevard. Mitchell testified appellant's mental and physical abilities were normal that evening and that he was normally able to recite the alphabet. During cross-examination, Mitchell testified she drank two medium-sized glasses of wine and four glasses of water that evening. She saw appellant drink one beer at the club. Mitchell then remembered seeing appellant drink one cocktail at the restaurant and two beers at the club. Appellant testified that although he dropped out of school in the ninth grade, he could recite the alphabet if he had more than one try to get through it. Appellant testified his mental and physical faculties were not diminished that evening, and denied he was driving while intoxicated. According to appellant, he consumed one cocktail at the restaurant and two beers at the club, and also drank water at the club. The trial judge found the State had failed to prove that appellant did not have the normal use of his physical faculties, but had proved beyond a reasonable doubt that appellant did not have the normal use of his mental faculties due to the consumption of alcohol. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). 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). Under either review, 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). Discussion
Appellant argues the evidence is legally and factually insufficient because the trial court specifically found that the State failed to prove he did not have the normal use of his physical faculties. Appellant contends his performance on the field sobriety tests demonstrates he possessed his mental faculties that night, and a witness testified appellant was not intoxicated. Appellant also asserts the videotape shows he was mentally alert and asking pertinent questions during the field sobriety tests. The State responds that the evidence is legally and factually sufficient to support appellant's DWI conviction. Tate testified appellant had bloodshot eyes and his breath smelled of alcoholic beverage. Tate believed appellant did not have the normal use of his mental and physical faculties due to alcohol consumption because appellant did not perform the field sobriety tests satisfactorily. See Watkins, 741 S.W.2d at 549. The videotape shows appellant had difficulty with some of the tests, and appellant refused to give a breath or blood sample. Mitchell testified that although appellant had three drinks that evening, he was not intoxicated and she did not feel for her safety in having appellant drive them home. Appellant admitted to Tate that he drank three drinks before driving, but denied he was intoxicated. The fact finder is the exclusive judge of the facts provided and of the weight to be given to the testimony, and resolved any conflicts in the evidence to find appellant guilty. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Harvey, 135 S.W.2d at 717. Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the trial judge's finding that appellant did not have the normal use of his mental faculties due to the consumption of alcohol. We resolve appellant's issues against him. We affirm the trial court's judgment.