No. 05-05-01313-CR
Opinion issued July 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-85217-04. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
Opinion By Justice BRIDGES.
George Teddy Vaughn was convicted in a trial before the court of driving while intoxicated. The trial court sentenced appellant to 120 days' confinement in the county jail, probated for fifteen months, and assessed a $500 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
Plano police officer Kristi Simon testified that at 10:00 p.m. on July 24, 2004, she responded to the dispatcher's call about a possible DWI. The dispatcher said a citizen was following a red Suburban that had sparks flying from it and whose driver was possibly intoxicated. Simon drove to Avenue K and 14th Streets and saw a red Suburban at a stop light. The Suburban was in flames, and both tires on the left side of the vehicle were missing. Simon saw appellant sitting inside the vehicle in the "passenger compartment, facing forward with his hands on the steering wheel." When Simon told appellant he needed to get out of the vehicle, appellant replied, "I can't." Simon grabbed appellant's arm and pulled him out of the burning vehicle. Appellant walked fifteen feet from the vehicle, sat down on the curb, and refused to go any further. Simon testified she smelled alcohol on appellant's breath. When Simon told one of the responding firemen that she believed appellant was intoxicated, appellant looked up at her and said, "I sure am." Simon testified she did not recall if the keys were in the ignition of the vehicle, but she assumed they were because she did not see appellant attempt to turn off the vehicle. Plano police officer Kris Tyler testified he drove to Avenue K and 14th Street after hearing the dispatcher say a red Suburban with a possibly intoxicated driver was on fire. Tyler saw appellant sitting on the curb near a Suburban that was stopped at a red light. The vehicle had no tires on the rims on the driver's side, and it was surrounded by smoke. Tyler administered field sobriety tests to appellant, including the horizontal gaze nystagmus (HGN), the walk-and-turn test, and the one-leg stand test. Appellant exhibited six out of six clues on the HGN and could not perform the walk-and-turn or the one-leg stand tests because he could not maintain his balance. Tyler testified that during the tests, appellant said, "I will be honest with you, I am drunk," "I probably shouldn't have been driving," and that he "had too much to drink." Tyler determined that appellant had lost the normal use of his mental and physical faculties due to the consumption of alcohol. He arrested appellant and searched the vehicle. Tyler found eleven empty beer cans in a trash bag inside the vehicle. Tyler transported appellant to the jail. They went into the intoxilyzer room where appellant consented to give a breath sample. The results were 0.185 and 0.179. A videotape of appellant performing field sobriety tests at the scene and providing a breath sample in the intoxilyzer room was played for the trial judge. The videotape showed that at the scene of the traffic stop, appellant said he had "5 or 6 beers," did not stop when his tires blew out because he was "trying to get home," and he "probably shouldn't have been driving." Appellant also said several times that he knew he was "drunk." When he was in the intoxilyzer room, appellant stated he had "6 or 7 beers," admitted he had been driving the vehicle, and recited the route he had driven that evening after leaving a bar in Richardson. Appellant also said at least four times that he knew he was "drunk." 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. A pp. 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). 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 nothing shows appellant was seen driving the vehicle. Appellant asserts that because there were no keys found in the ignition and no witness actually saw him driving the vehicle, the evidence is insufficient. Appellant further argues his extrajudicial confession is not sufficient evidence to support the conviction. The State responds that the evidence is legally and factually sufficient to show appellant was operating a motor vehicle while intoxicated. A citizen reported seeing a vehicle that was apparently on fire and whose driver was possibly intoxicated moving along the street. Moments later, appellant was found sitting inside a burning vehicle with his hands on the steering wheel at a stop light at the intersection of Avenue K and 14th Streets. No one else was in the vehicle. Simon did not see the keys in the ignition, but assumed they were there. Appellant said, "I probably shouldn't have been driving," while performing the field sobriety tests. The videotape shows appellant almost falling down while performing field sobriety tests at the scene, and appellant repeatedly admitted at the scene and in the intoxilyzer room that he was driving the vehicle and that he was "drunk." We may consider these admissions in evaluating the sufficiency of the evidence. See Lane, 151 S.W.3d at 191. The trial court resolved any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the trial judge's finding that appellant was driving while intoxicated. See id.; Johnson, 23 S.W.3d at 7. We overrule appellant's two points of error. We affirm the trial court's judgment.