Opinion
No. 05-04-01447-CR
Opinion issued July 10, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-84198-03. Affirmed.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
John Golden Carter appeals his driving while intoxicated conviction. The jury convicted appellant, and the trial judge sentenced him to thirty days' confinement, probated for eighteen months, and a $500 fine. In three points of error, appellant argues the trial court erred in denying his motion to suppress, and the evidence was legally and factually insufficient to support his conviction. We affirm the trial court's judgment. At approximately 11:55 p.m. on June 20, 2003, Dallas police officer Matthew Finley observed a white Chevrolet make an illegal U-turn in front of a sign prohibiting U-turns and accelerate to a high rate of speed. Finley pursued appellant and pulled him over. Finley got out of his patrol car and approached the driver's side window of appellant's car. Appellant had "bloodshot, glassy, watery eyes" and stated he had had "three to four" vodkas since 10:00 p.m. Appellant's speech was "slightly slurred." Finley asked appellant to get out of his car, but appellant refused to get out unless he was under arrest. Finley told appellant he was not under arrest, but Finley wanted appellant to perform some field sobriety tests. Finley went back to his patrol car and turned off the rotating red lights because he thought they might interfere with the horizontal gaze nystagmus (HGN) test, which he planned to administer to appellant while appellant was sitting in his car. The HGN test only requires looking at a light, but appellant refused to keep his head still and follow the tip of Finley's pen with his eyes. Appellant again refused to get out of his car or perform any tests unless he was under arrest. Finley asked appellant to recite the alphabet, beginning with D and ending with T, but appellant again refused. Finley went to his in-car computer and sent a message to another officer to respond to the scene "just in case something happened." Finley then approached appellant again and told him to step out of the car and that he was under arrest for driving while intoxicated. At that time, Finley believed appellant had "lost" the normal use of his mental faculties due to the introduction of alcohol into his body. Appellant got out of his car, and Finley handcuffed him, placed him in the front seat of his patrol car, and read him the DWI statutory warning. After Finley read the warning to appellant, appellant refused to give a breath specimen. A jury subsequently convicted appellant of DWI, and this appeal followed. In his first point of error, appellant argues the trial court erred in denying his motion to suppress all evidence obtained as a result of his arrest because Finley lacked probable cause to arrest him. We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's determination of the facts. Joseph v. State, 3 S.W.3d 627, 633 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)); see Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Whether probable cause to arrest exists is determined by applying the "totality of the circumstances" test. Amores v. State, 816 S.W.2d 407, 415 (Tex.Crim.App. 1991). The standard for the legality of a warrantless arrest is not equal to the sufficiency of the evidence for a conviction; the standard is probable cause, not proof beyond a reasonable doubt. Id. An officer has probable cause to make an arrest when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that a particular person has committed or is committing an offense. Id. Here, Finley observed appellant make an illegal U-turn in front of a sign prohibiting U-turns and accelerate to a high rate of speed. When Finley pulled appellant over at approximately 11:55 p.m., appellant had "bloodshot, glassy, watery eyes" and stated he had had "three to four" vodkas since 10:00 p.m. Appellant's speech was "slightly slurred," and he repeatedly refused to perform any field sobriety tests unless Finley was placing him under arrest. Based on appellant's illegal U-turn and his speech, appearance, and demeanor, Finley believed appellant had lost the normal use of his mental faculties due to the introduction of alcohol into his body. We conclude these facts were sufficient to warrant Finley to believe appellant had committed the offense of driving while intoxicated. See id. Under these circumstances, the trial court did not abuse its discretion in denying appellant's motion to suppress. See Guardiola, 20 S.W.3d 216, 223. We overrule appellant's first point of error. In his second and third points of error, appellant argues the evidence is legally and factually insufficient to support his driving while intoxicated conviction. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. In reviewing the factual sufficiency of the evidence, we are to view all of 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). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the trier of fact may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). The factfinder is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). A person commits the offense of driving while intoxicated if he is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). At trial, the State introduced a videotape showing Finley's stop of appellant and the exchange that followed. In his brief, appellant argues the videotape is the most relevant evidence that appellant was not intoxicated. We have viewed the videotape and, while appellant is able to respond to Finley's questions in between his refusals to take any field sobriety tests unless he is under arrest, the videotape shows only the back of appellant's head during most of the exchange. In two or three places, appellant's voice is arguably slurred, and he appears to ask, "Ex-squeeze me?" instead of "Excuse me?" in response to Finley's question concerning appellant's schooling. We conclude the videotape, in conjunction with Finley's testimony concerning appellant's illegal U-turn, "bloodshot, glassy, watery eyes" and statement he had had "three to four" vodkas since 10:00 p.m., constituted legally and factually sufficient evidence to show appellant was driving while intoxicated. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's second and third points of error. We affirm the trial court's judgment.