No. 08-05-00148-CR
March 29, 2007. DO NOT PUBLISH.
Appeal from the 120th District Court of El Paso County, Texas (TC# 20040D03564).
Before CHEW, C.J., McCLURE, and CARR, JJ.
KENNETH R. CARR, Justice.
This is an appeal from a conviction for the offense of driving while intoxicated, third or more. The court assessed punishment at five years' community supervision. We affirm.
I. SUMMARY OF THE EVIDENCE
Officer Eric Watts of the El Paso Police Department testified that, around midnight on June 11, 2004, he was dispatched to investigate an accident at the intersection of Vista Del Sol and George Dieter streets in El Paso, Texas. Upon arrival, he found two disabled vehicles in the intersection. Officer Watts saw Appellant standing next to her vehicle, while Nancy Lopez and her son, Javier Lopez, were sitting on a curb. The officer exited his patrol car and approached Appellant. She stated that she had made a left turn on a green light, and the other vehicle was traveling too fast and struck her. The officer observed that Appellant was nervous, and she was swaying on her feet. There was a strong odor of alcohol emanating from her breath and person. Officer Watts testified that Appellant's speech was slurred, her eyes were bloodshot, and she was slow to respond to his questioning. The officer stated that Appellant was chain smoking, and she continued to blow cigarette smoke in his face notwithstanding his repeated requests for her to stop doing so. He thought that Appellant was trying to keep him away from her in order to mask the smell of alcohol. Initially, Appellant stated she did not want to be attended by EMS. Approximately ten minutes later, however, Officer Watts assisted her to the curb, and Appellant said she might be injured and wanted to be checked out by medical services. Appellant stated that she had a hard time standing up without assistance, and she complained of back and neck injuries. Officer Watts also interviewed the occupants of the other vehicle, Nancy Lopez and her son, who was a passenger in the vehicle. The officer interviewed them separately and their stories were consistent. Neither appeared to be intoxicated. Nancy Lopez asked Officer Watts whether Appellant was intoxicated, because she thought she had smelled alcohol coming from her. Officer Watts responded only that the accident would be investigated further. The ambulance arrived and Nancy Lopez was attended to. Officer Watts requested a DWI unit. Although he is qualified to administer field-sobriety tests, he felt more comfortable calling in the DWI unit, in order to provide a safer situation and to allow him to continue to investigate the accident. He believed Appellant was intoxicated. Officer Watts asked Appellant for her driver's license and proof of insurance. After giving her license to him, Appellant stated that the proof of insurance was in the glove compartment of her vehicle. The officer left Appellant at the curb for her safety and went to retrieve the proof of insurance. He could not find the insurance certificate, but he did smell a strong odor of alcohol emanating from the interior of Appellant's vehicle. On the floor of the vehicle, he found a plastic cup which smelled of alcohol. As a result of viewing the damage to both vehicles and after hearing both accounts of the accident, Officer Watts determined that Appellant was responsible for the accident. He issued citations to the Appellant for causing the accident and for failing to provide proof of insurance. At the time he issued the citations, he did not anticipate arresting Appellant for DWI. When the DWI unit arrived, Officer Watts informed Officer Isidro Apodaca about the results of his investigation and about his conclusion that Appellant was intoxicated. Both Lopezes were taken to the hospital. Officer Apodaca spoke to Appellant, and he escorted her to an area where the ground was level, in order to conduct field-sobriety tests. He observed that Appellant was emitting an odor of alcohol and had bloodshot eyes and slurred speech. She also had difficulty maintaining her balance. Appellant told Officer Apodaca that she had no physical ailments that would hinder her performance on the tests. She was not specifically asked whether she had hit her head in the accident or whether she was shaken up, but, at some point, she did state to Officer Apodaca that she was in pain. He could not recall when Appellant told him about the pain, but he surmised it must have occurred after the tests, because, if it were otherwise, he would have terminated the tests. Officer Apodaca conducted a walk-and-turn test. Appellant could not maintain her balance, she stepped off the line, and she did not walk the appropriate number of steps. She started before the officer's instructions were completed. During the one-leg-stand test, Officer Apodaca noticed that Appellant swayed, she used her arms for balance, and she put her foot down before the requisite thirty seconds were completed. Based upon all the circumstances he observed, the officer determined that, while Appellant was only "slightly intoxicated," she had lost the normal use of her mental and physical faculties. Officer Apodaca then placed her under arrest for driving while intoxicated. At that point, Officer Watts rescinded the citation for causing an accident. On the way to the police station, Appellant stated to Officer Apodaca that Nancy Lopez had hit her vehicle and that her prior arrests for DWI were being held against her. Upon arrival at the station, she refused to provide a breath test or to perform any additional field-sobriety tests. Appellant requested a lawyer, and the DWI interview was terminated. Nancy Lopez testified that she was proceeding through the intersection on a green light when Appellant made a left turn from the opposite direction and struck her vehicle. Javier Lopez testified in the same vein. Nancy Lopez had limited contact with Appellant at the scene, but Javier Lopez stated that Appellant appeared to be disoriented and she smelled of alcohol. She was not belligerent, and she had no trouble walking. Nancy Lopez inquired of Officer Watts whether Appellant was going to be tested to see whether she was intoxicated. Javier Lopez thought that Appellant was intoxicated, because she tried to start her vehicle, notwithstanding the fact that liquids were leaking from her vehicle, and she lit a cigarette in what he considered to be dangerous circumstances. During the defense portion of the case, Carol Hughey, a good friend of Appellant, testified that she arrived at Appellant's house at about 8 p.m. on the night of the accident. Appellant did not appear to be intoxicated, and Hughey could not smell any alcohol, although she did not know whether Appellant had been drinking prior to her arrival. They went to a friend's house and then returned to Hughey's house, where they visited and smoked cigarettes until around midnight. Neither drank any alcoholic beverages during the course of the evening. Hughey was unaware whether Appellant took anything to drink from her house when she left; however, the only alcoholic drinks were in her garage. Five minutes after Appellant left, Hughey got a call from her. Appellant stated she had been in an accident. Hughey left for the accident scene. Both on the phone and at the accident scene, Appellant was babbling and crying; she appeared distraught and upset. Hughey stated that one of the officers told Appellant that she was to receive a ticket. When Appellant began to argue with him, Hughey told her to take the ticket and be quiet. When the ambulance arrived, she overheard Appellant tell the medical personnel that she was fine. Hughey testified that she was able to observe Appellant's taking the field-sobriety tests and that she thought that Appellant had done well on them. At the completion of the tests, Appellant was placed in the officer's patrol car. Upon inquiry, the officer stated that Appellant was not under arrest. Hughey then advised Appellant not to give a breath specimen because, in Hughey's opinion, the test was subjective and inaccurate. Hughey then left and took some of Appellant's possessions, including the two traffic citations. Later in the evening, Officer Watts called her and asked her to return the citations to the police station. Hughey testified that Appellant wore newly obtained dentures, to which she was unaccustomed. Hughey attributed Appellant's difficulty in speaking at the accident scene to problems with the dentures. She testified that Appellant was not intoxicated at the scene of the accident. Also, due to Appellant's normal high-strung and rambling behavior, an observer who did not know Appellant might think she was intoxicated. Appellant testified in her own defense. She stated that she had not consumed alcohol on the night of the accident. She did take a glass of grapefruit juice with her when she left Hughey's house. She stated that she turned on the protected green arrow in order to make a left-hand turn through the intersection. After she entered the intersection, the arrow light turned yellow. Appellant testified that she had the right-of-way. After inquiring after the well-being of the occupants of the other vehicle, she called Hughey. Appellant testified that she suffered injuries from the accident. She hit her head and broke a hair clip. She stated that she was hysterical, but she never blew smoke in Officer Watts's face. Appellant related that her dentures became unglued and her speech was affected. Appellant stated that, earlier in the day, she been cleaning out a shed, and she had handled denatured alcohol, paint, gasoline, paint remover, and materials from fire extinguishers. Furthermore, during the accident, a carton of eggs broke inside her vehicle and a cup of grapefruit and a coke spilled in the vehicle. Her dentures became unglued which caused a horrid smell. She testified that those smells, together with the fact that she had prior DWI arrests, caused the officers to think she smelled of alcohol. Appellant stated that she readily agreed to take the field-sobriety tests, but she told the officer that she was having difficulty with her left knee and was having other physical problems. She stated she was never asked whether she had physical problems. She thought she performed the walk-and-turn test well, and she thought that she had almost completed the one-leg-stand test, but she put her foot down before completion because her leg was sore. Appellant testified that the officer told her she did fine on the tests, but that he wanted a breath specimen, and she was handcuffed and placed in the police car. At the station, she told the officer that her pain was getting greater. She refused any further testing and requested a lawyer. She was agitated due to her medical condition. Six hours later, she was transported to the hospital. II. DISCUSSION
In Issue Nos. One through Three, Appellant asserts that the trial court erred in allowing the prosecutor to cross-examine Appellant about her prior DWI convictions, in alleged violation of her State and Federal due process rights. During the guilt/innocence stage of trial, the following exchange occurred: STATE: Ms. Watson, I'm going to hand you what's been marked State's Exhibit Number 4. It is a stipulation that has been entered into by yourself, together with your attorney, Ms. Stillinger, and myself. And has been approved by the Judge. And in it, you stipulate, essentially, that you have twice before been convicted of driving while intoxicated. Specifically, in Cause Number 20000C14605, in the case styled The State of Texas versus Frances Watson, in County Court at Law Number 1, of El Paso County, Texas. You were convicted of driving while intoxicated. And on April 30th, 2001, in Cause Number 990C09666, styled The State of Texas versus Frances Regina Watson, in County Court at Law Number 1, you were convicted of driving while intoxicated. Right? APPELLANT: Yes, sir. STATE: And that stipulation further sets out that you committed one of the offenses, I believe, in 1999? And the other one in 2000? But you pled to both of them at the same time, right? APPELLANT: Yes, sir. STATE: All right. So you — you were arrested for driving while intoxicated. DEFENSE: Your Honor, I'm — I'm going to object to this line of questioning. We have a stipulation, and — and . . .any other cross-examination on this point is — STATE: Judge, she has — she has put her client on the stand. And I'm entitled to cross-examine her, to prove up my case, in regard to those two — COURT: Go ahead. STATE: — two matters. And so you — you had one in `99, and you were out on bond on that one. And while you were out on bond, you committed another one. And then somewhere down the road you pled guilty to both of them, right? APPELLANT: I pled guilty to both of them, yes. Appellant stipulated to her two prior DWI convictions, and the prosecutor read the stipulation into evidence. The admission of evidence is a matter within the discretion of the trial court. See Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App. 1990). Appellate review is conducted under an abuse-of-discretion standard. See id. If the trial court's ruling is within the "zone of reasonable disagreement," no abuse of discretion occurs, and the trial court's ruling will be upheld. Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App. 1996). Appellant maintains that the prosecutor's cross-examination of her concerning her prior convictions violated her due process rights, in that the stipulation settled the matter of the two prior convictions, thereby precluding any further mention of them. However, in a case of this nature, the two prior DWI convictions are jurisdictional elements which must be proven by the State. Hollen v. State, 117 S.W.3d 798, 802 (Tex.Crim.App. 2003). The two convictions are the legitimate subject of voir dire, opening statements, and closing arguments. Id. The stipulation may be admitted into evidence. Id. Furthermore, a defendant may be cross-examined concerning the convictions contained in a stipulation. See Ford v. State, 112 S.W.3d 788, 790-92 (Tex.App.-Houston [14th Dist.] 2003, no pet.). In Rodriguez v. State, No. 08-03-00237-CR, 2004 WL 1903407, at *4 (Tex.App.-El Paso Aug. 26, 2004, no pet.) (mem. op.) (not designated for publication), we found that no error occurred when the prosecutor mentioned the prior DWI convictions during the direct examination of one of the officers, notwithstanding the fact that a stipulation had been entered into. Also, the matter concerning Appellant's being on bond when the second offense occurred was readily discernable from the stipulation, which was properly in evidence. Accordingly, we find that the trial court did not abuse its discretion in allowing the cross-examination in question. Issue Nos. One through Three are overruled. In Issue Nos. Four through Six, Appellant maintains that the evidence was legally and factually insufficient to support her conviction and that the jury's finding of guilt violated her due process rights. In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense, as defined by the hypothetically-correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997). Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App. 1989), cert. denied, 498 U.S. 951 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App.-El Paso 1992, pet. ref'd). We do not resolve any conflict in fact, weigh any evidence, or evaluate the credibility of any witnesses, so the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex.App.-El Paso 1995, pet. ref'd); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex.App.-El Paso 1992, pet. ref'd); Bennett v. State, 831 S.W.2d 20, 22 (Tex.App.-El Paso 1992, no pet.). Instead, our only duty is to determine whether both the explicit and implicit findings of the trier of fact are rational, by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843 (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness's testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex.App.-El Paso 1995, pet. ref'd). In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient, if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or if the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder's determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1977). Appellant attacks the sufficiency of the evidence solely on the issue of whether she was intoxicated. She maintains that the facts that Officer Watts did not conduct a field-sobriety test and that he did not intend to arrest her, since he issued two citations, demonstrates that she was not intoxicated. However, Watts testified regarding Appellant's demeanor and the smell of alcohol on her person and in her vehicle. He further stated that he called the DWI unit to make the determination whether she was intoxicated. Officer Watts stated that he issued the tickets for reasons of convenience, in that, if Officer Apodaca were to conclude that Appellant was not intoxicated and everyone left the scene before he could issue the tickets, he would have had to track Appellant down to get her to sign the citations. Furthermore, while Officer Watts testified that he did not intend to arrest Appellant when he issued the tickets, it is clear that he had already called for the DWI unit to investigate the matter. Appellant asserts that Officer Apodaca's testimony regarding the field-sobriety tests should be afforded little weight, because Appellant was shaken up during the accident and she had trouble walking, thereby diminishing the accuracy of the field-sobriety tests. Further, he testified that Appellant was only "slightly intoxicated." However, he testified that, if he had felt or learned that Appellant was too injured to take the tests, he would not have administered them. Furthermore, he observed other indicators of intoxication, apart from the results of the field-sobriety tests, which indicated that she had lost the normal use of her mental and physical faculties. The defensive portion of the case provided alternate reasons to indicate why Appellant smelled of alcohol and why she failed to perform the field-sobriety tests successfully. Furthermore, there was testimony that Appellant had not been drinking prior to the accident. However, the fact that an alternative explanation is offered that is different from the State's evidence does not automatically make the evidence insufficient. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). The jury can reject an alternative explanation of facts. Id. In the instant case, we find that the evidence was legally and factually sufficient to support the conviction. Issue Nos. Four through Six are overruled. We affirm the judgment of the trial court.