No. 05-08-00603-CR
Opinion filed July 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court of Appeals No. 2, Dallas County, Texas, Trial Court Cause No. MB06-48175M.
Before Justices RICHTER, FRANCIS, and LANG-MIERS. Opinion By Justice LANG-MIERS.
ELIZABETH LANG-MIERS, Justice.
A jury convicted Rhett Cappiello of driving while intoxicated and the trial judge sentenced him to 150 days confinement in the county jail and a $750 fine. The judge suspended the imposition of confinement and placed appellant on community supervision for 18 months. In four issues, appellant argues that the evidence is legally and factually insufficient, the trial judge erred by admitting certain evidence, and the judgment incorrectly reflects the sentence that was orally pronounced. The State agrees that the judgment should be reformed and asserts a cross-point relating to the judgment. We modify the judgment and, as modified, affirm.
Background
Officer Robert Porter of the Richardson Police Department testified that at approximately 2:00 a.m. on June 25, 2006, he observed appellant driving northbound on Central Expressway in Dallas and passing other vehicles at what appeared to be a high rate of speed. He "paced" appellant's speed at eighty miles per hour in a sixty-mile-per-hour zone. He explained that he estimated appellant's speed using the calibrated speedometer in his patrol car because he did not have radar in his car. He also observed appellant make a sudden lane change that caused another driver to slam on his brakes to avoid hitting appellant. At that point, Officer Porter activated his emergency lights and stopped appellant. The officer testified that he observed that appellant had bloodshot eyes, slurred speech, and a strong odor of an alcoholic beverage on his breath. Appellant told the officer that he had been at a bar on lower Greenville and had consumed "a couple of beers and some mixed drinks." The officer conducted two field sobriety tests on appellant-the horizontal gaze nystagmus and the walk and turn. He explained these tests to the jury in detail and why they indicate whether a person is intoxicated. He also told the jury that he did not conduct the one-leg stand test, which is one of the three standard field sobriety tests, because appellant stumbled while doing the walk and turn test and he did not want appellant to fall into the highway. Officer Porter testified that appellant exhibited six of six clues on the horizontal gaze nystagmus test and four of eight clues on the walk and turn test. He testified that a person's performance on the horizontal gaze nystagmus test is 77% accurate when a person exhibits four of six clues, the walk and turn test is 68% accurate when a person exhibits two of eight clues, and the accuracy rating is 80% when the two tests are combined. He agreed that he was supposed to ask appellant whether he had any head trauma, injuries, or medical condition that would affect his performance on the field sobriety tests and that he did not ask appellant these questions. But he also testified that appellant did not volunteer that he had any issues that would prevent him from performing the tests. Defense counsel pointed out that the officer was supposed to conduct the walk and turn test on a designated straight line that is reasonably dry, hard, level, and non-slippery, but that the test was performed along the side of the highway with cars passing by and that appellant was barefoot. Officer Porter testified that he told appellant to imagine a straight line and that appellant did not tell him he could not do so. The evidence also showed that appellant was barefoot when he performed the walk and turn test because he was wearing flip-flops and asked the officer if he could remove them. Officer Porter testified that he arrested appellant based on his observation of appellant's driving, his personal contact with appellant, and appellant's performance on the field sobriety tests. Legal and Factual Insufficiency
In his first issue, appellant argues that the evidence is insufficient to support a finding that he was intoxicated because the field sobriety tests were not conducted in a proper manner. He contends that because the officer did not ask appellant whether he had any medical conditions, because cars were passing by him as he tried to perform the field sobriety tests, and because he was barefoot, his performance on the tests is not a reliable indicator of his intoxication. He points out that he had no difficulty stopping the car in a reasonable amount of time, he did not have difficulty exiting the vehicle, and he was cooperative and polite. In reviewing a legal insufficiency challenge, 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); Laster v State, 275 S.W.3d 512, 517 (Tex.Crim.App. 2009). We do not re-weigh the evidence or substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury 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.). In reviewing a factual insufficiency challenge, we view the evidence in a neutral light, favoring neither party, to determine whether the verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence supporting the conviction, although legally sufficient, is factually insufficient when it is so weak that the verdict seems clearly wrong and manifestly unjust, or when it is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. We must defer to the jury's determination concerning the weight to be given to contradictory testimony unless the record clearly reveals a different result is appropriate. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Penal 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, a combination of two or more of those substances, or any other substance into the body, or having an alcohol concentration of 0.08 or more. Id. § 49.01(2) (Vernon 2003). The officer testified that he stopped appellant because he was speeding and because he made an illegal lane change. He then observed that appellant had bloodshot eyes, slurred speech, and a strong odor of alcohol on his breath. Appellant had more than the minimum number of clues on the two field sobriety tests to indicate intoxication, and the accuracy rating of those two tests combined is 80%. And the officer did not conduct the one-leg stand test because appellant stumbled while performing the walk and turn test. Appellant also admitted to the officer that he had been at a bar and had consumed alcohol. We conclude that this is legally sufficient evidence to support the jury's verdict. Although the evidence shows that appellant was polite and cooperative and that the officer failed to ask certain questions prior to conducting the field sobriety tests, the evidence contrary to the verdict is not so overwhelming as to render the verdict clearly wrong and manifestly unjust. We conclude that the evidence supporting the verdict is factually sufficient. We resolve appellant's first issue against him. Evidentiary Issues
In his second issue, appellant argues that the trial judge erred by admitting Officer Porter's testimony about appellant's performance on the horizontal gaze nystagmus test. He contends that the officer's failure to follow proper procedures rendered the results of this test irrelevant, unreliable, and inadmissible. But appellant did not object to Officer Porter's testimony about the horizontal gaze nystagmus test. To preserve an issue for appeal, the appellant must make a specific objection and obtain an adverse ruling. Tex. R. App. P. 33.1(a). We conclude that appellant has not preserved this issue for our review. We resolve appellant's second issue against him. In his third issue, appellant argues that the trial judge erred by admitting into evidence a portion of the video from the police car's in-car camera. The video showed appellant being placed in the police car and stating, "This is the worst thing that could have happened to me." The officer replied, "You should have thought about that before getting behind the wheel." Appellant filed a pretrial motion to exclude the officer's comment. At the pretrial hearing, the trial judge ruled that the officer's comment would be excluded, and there is nothing in the record to indicate that the comment was admitted. On appeal, however, appellant argues that the trial court erred by admitting his own statement that "[t]his is the worst thing that could have happened to me." Because appellant's complaint on appeal is different from his objection below, we conclude that appellant has not preserved this issue for our review. See Tex. R. App. P. 33.1(a); Coffey v. State, 796 S.W.2d 175, 179 (Tex.Crim.App. 1990) (trial court objection must comport with complaint raised on appeal). We resolve appellant's third issue against him. Reformation of the Judgment
In his fourth issue, appellant argues that the judgment should be reformed to reflect that the trial judge orally pronounced sentence as 150 days confinement, not 180 days as reflected in the judgment. The State agrees. In a related cross-point, the State argues that the judgment is silent about whether or not the imposition of the fine was suspended and that when the trial judge orally pronounced sentence, he did not suspend imposition of the fine. We agree. We sustain appellant's fourth issue and the State's sole cross-point, and we modify the judgment to reflect: Punishment: 150 days Fine probated: No Conclusion
As modified, we affirm the trial court's judgment.