Opinion
No. 05-03-01731-CR
Opinion filed August 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 005-84063-01. Affirmed.
Before Justices FITZGERALD, RICHTER, and LANG.
OPINION
Gene Alderson Burks appeals his conviction by a jury of driving while intoxicated. The court assessed punishment at 180 days in jail, probated for fifteen months, and a $750.00 fine. Appellant challenges the legal and factual sufficiency of the evidence. For the reasons stated below, we affirm the trial court's judgment.
I. Factual and Procedural Background
Department of Public Safety Trooper Michael Smith stopped appellant after observing him driving a vehicle with an inoperable headlight and driving under the posted speed limit. Appellant pulled over onto the shoulder of the road, stopped his vehicle with two wheels on the shoulder and two on the unimproved area adjacent to the road, and got out of the vehicle talking on his cellular phone. He promptly got off the phone and attempted to shake hands with Trooper Smith. Smith immediately noticed appellant's red and glassy eyes and the smell of alcohol on his breath. Additionally, Smith noticed a wet spot on the front of appellant's pants which Smith believed to be urine. Appellant initially denied that he had been drinking, but later stated that he had consumed one Corona beer. Trooper Smith performed three field sobriety tests on appellant and testified that appellant did not perform any of these tests well. First, appellant was not able to complete the horizontal gaze nystagmus ("HGN") test because he could not focus on the moving stimuli (a pen). Second, appellant did not perform the walk-and-turn test well even after being permitted to start over with his boots off. Finally, appellant failed to pass the one-leg-stand test despite attempting it on each leg. Smith testified that in administering the tests, he took into consideration appellant's age of sixty-two years and his claim that he had physical problems with his legs and ankles. However, Smith made the decision to arrest appellant for driving while intoxicated based on the findings of the field sobriety tests and the other indicators. Smith believed appellant had lost the normal use of his mental and physical faculties by reason of introduction of alcohol to his system. While doing an inventory of appellant's vehicle, Smith located an insulated cup that contained a clear liquid and ice which Smith believed smelled like alcohol. Appellant requested a blood test, so Smith took appellant to the hospital. However, appellant eventually refused the test once it was clear that he was under arrest, blood test results were not immediately available, and the results would not change the trooper's decision to arrest. One-and-a-half hours after his arrest, appellant arrived at the Collin County Jail. Appellant asked that the field sobriety tests be administered again. Appellant was more proficient at the walk-and-turn test. However, he was still unable to keep his balance during the one-leg-stand test. He refused to take a breath test. Appellant stated he had taken two aspirin and Valium earlier in the day. During an inventory search of appellant's pant pockets, Smith found three portions of a tablet that appeared to be Valium. Kenneth Evans, a forensic chemist, tested the tablet and confirmed that it was diazepam, which is commonly known as Valium. Dr. William Rohr testified about the adverse effects of consuming alcohol and Valium at the same time. Additionally, a videotape of the traffic stop and of appellant performing the sobriety tests were admitted into evidence and shown to the jury. Appellant called Sam Chenault and William Burks, Jr., who were with appellant on the day of his arrest. Both men testified that they saw appellant drink only one beer that day. Appellant testified that he was driving fifty-four miles per hour because he believed he was in a construction zone. He further testified that the wet spot on his pants was from the plastic cup sitting between his legs. Finally, appellant testified that his extensive medical conditions precluded him from performing the field sobriety tests proficiently. At the conclusion of the trial, the jury found appellant guilty of the offense of driving while intoxicated. After a hearing on punishment, the judge assessed punishment at 180 days in jail, probated for fifteen months, and a $750.00 fine.II. Legal and Factual Sufficiency of the Evidence
In two issues on appeal, appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction for driving while intoxicated.A. Standards of Review
Differences exist between a factual sufficiency and legal sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Further, it is beyond dispute that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id.1) legal sufficiency of the evidence
In reviewing a challenge to the legal sufficiency of the evidence, we review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim. App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and non-favorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).2) factual sufficiency of the evidence
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim. App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be re-weighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation since the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim. App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 2004 WL 840786, at *4; see also Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim. App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 2003). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based upon the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 2004 WL 840786, at *7.B. Applicable Law
The Texas Penal Code defines intoxication as "not having the normal use of mental or physical facilities by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body." Tex. Pen. Code. Ann. § 49.01(2)(A) (Vernon 2003). A person commits the offense of driving while intoxicated if intoxicated while operating a motor vehicle in a public place. See Tex. Pen. Code. Ann. § 49.04(a).C. Application of the Law to Facts
The State responds to appellant's arguments that the evidence was legally and factually insufficient to prove he was intoxicated by asserting that the evidence gave the jury ample basis to rationally find that appellant was intoxicated when he was driving. The State contends the testimony and the videotaped performance of the field sobriety tests, along with the alcoholic beverage in a cup in appellant's car, clearly support the verdict. Moreover, the State asserts the evidence proving the offense beyond a reasonable doubt was not outweighed by evidence suggesting innocent explanations for appellant's behaviorAt trial, proof of appellant's intoxication while driving a motor vehicle was shown by: (1) Trooper Smith's assessment and the videotape of appellant's poor performance on the field sobriety tests; (2) the smell of alcohol on appellant's breath; (3) appellant's red and glassy eyes; (4) appellant's admission of drinking a beer and taking a Valium earlier in the day; (5) the presence of the Valium tablet in his pocket; and (6) the cup of clear liquid that smelled like alcohol found on the back floorboard of appellant's vehicle.Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense of driving while intoxicated beyond a reasonable doubt. The evidence is legally sufficient. Although there was conflicting evidence, we conclude appellant's explanations of the loss of his faculties do not outweigh the evidence supporting his guilt. Thus we conclude the jury's verdict was neither so contrary to the evidence that it is clearly wrong and unjust, nor was the contrary evidence so strong to overcome the beyond a reasonable doubt standard. The evidence is factually sufficient.