Opinion
No. 06-11-00232-CR
08-02-2012
JUSTIN LATODD CASSELBERRY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Hunt County, Texas
Trial Court No. CR1100208
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Justin LaTodd Casselberry was convicted by a jury for DWI, a class B misdemeanor. The jury found enhancement allegations true and assessed punishment at 180 days' confinement in the Hunt County Jail and assessed a $2,000.00 fine. In a companion case tried along with this one, he was also found guilty for resisting arrest and sentenced to 365 days' confinement.
Our cause number 06-11-00233-CR.
In this appeal, Casselberry argues that the evidence is legally insufficient to support his conviction for driving while intoxicated. In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the jury's verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. The information alleges that he was intoxicated either by use of alcohol, drugs, or a combination of the substances, or having an alcohol concentration of at least 0.08 percent (in his blood).
In this case, the jury charge instructed the jury that Casselberry committed the offense of DWI if he operated a motor vehicle in a public place while intoxicated—with intoxication defined as
not having the normal use of his mental or physical faculties by reason of the introduction of a controlled substance, a drug or a dangerous drug into his body
. . . .
The evidence shows that a telephone call was made to police asking for assistance: a man identified as Casselberry, who had been driving a vehicle on Wesley Street in Greenville, Texas, emerged from his car, leaving it in a center turn lane, and began dancing in the street. In the meantime, his vehicle meandered down the street, across two lanes of traffic, and into the Taco Bell parking lot, where it ran up on a curb and stopped. Police responded, finding Casselberry no longer dancing, instead standing in the middle of the street, entirely disregarding the existence of citizens trying to get his attention, and then completely disregarding the police officer who parked his squad car behind Casselberry and attempted to talk to him. After the officer walked Casselberry to the Taco Bell parking lot, Casselberry began to pull away from the officer. With his other arm, Casselberry flailed about and took an unaimed swing in the vicinity of the officer. The officer then peppersprayed, restrained (with the assistance of a citizen), handcuffed, and arrested Casselberry. Casselberry was transported to the local hospital, where a number of tests were run on him in an effort to determine the reason for his behavior.
At trial, an expert testified for the State that Casselberry tested positive for PCP, and described some of the range of responses to the drug. The arresting officer and a bystander both described Casselberry's glassy eyes and apparent lack of any awareness of his surroundings, and that he did not even seem to realize that a police officer stood before him. The officer testified that his observations of Casselberry led him to believe that Casselberry had introduced a substance, other than alcohol, into his body that prevented him from having his normal faculties.
There was evidence presented that PCP was present in his blood stream. Counsel argues that the absence of any quantitative testing to show how much PCP was in Casselberry's bloodstream is critical because the evidence otherwise failed to draw the requisite connection between his use of the drug and his abnormal behavior. We disagree. This is analogous to intoxication prosecutions involving alcohol. In such a situation, when a defendant is confronted with a claim that he was intoxicated through the use of alcohol, proof that the person had alcohol on their breath or showed other indicia of use of alcohol, combined with behavior or appearance typical of intoxication or failure of field-sobriety tests has been held sufficient, even without proof that the blood alcohol level is over 0.08. See Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (enumerating nonexclusive list of signs recognized as evidence of intoxication); Holt v. State, 195 S.W.3d 795, 797 (Tex. App.—Amarillo 2006, no pet.); McCown v. State, 192 S.W.3d 158, 164 (Tex. App.—Fort Worth 2006, pet. ref'd); Compton v. State, 120 S.W.3d 375, 380 (Tex. App.—Texarkana 2003, pet. ref'd).
Where this situation differs is in the nature of the intoxication. It is clear that a person does not have to be an expert to testify that a person he or she observes is drunk; lay opinion testimony is adequate. See McCown, 192 S.W.3d at 164; Gruber v. State, 812 S.W.2d 368, 370 (Tex. App.—Corpus Christi 1991, pet. ref'd). Often, blood-alcohol level calculation is used, as numbers are presumably more reliable and consistent than observations made on a roadside, but that level of precision is not required. Further, Padillo testified that although they used a minimal cut-off point to determine whether PCP was in the blood, the level he found was well above that minimal point.
Evidence was introduced of some of the multiple effects that PCP can have on its users, which include hallucinations, a lack of motor coordination, disorientation, euphoria or agitation, and delusions. There is evidence from several sources of Casselberry's peculiar behavior and his lack of connection with reality that is consistent with some of those described effects, both on the street and in the hospital. Based on these facts, it is reasonable to draw the connection between the drug and the behavior. See Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (intoxication by opiates shown by usage combined with behavior).
Casselberry also argues that the evidence was insufficient because of a gap in the chain of custody of the blood sample used for the State. Casselberry argues there is no proof of how the blood sample was transferred from the police department to the laboratory in Austin or that it was properly preserved during that time. He acknowledges that the failure of the chain of custody goes not to admissibility, but instead to the weight of the evidence. Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989); Hartsfield v. State, 200 S.W.3d 813, 817 (Tex. App.— Texarkana 2006, pet. ref'd).
In this case, an officer testified that the vial and box were marked and identified and that the blood kit was properly sealed and did not show tampering. Texas Department of Public Safety biochemist Eduardo Padillo testified that on receipt, the kit was properly sealed and contained preservatives and anticoagulants ensuring that the sample was properly preserved. Thus, the jury had evidence of drugs in Casselberry's system shown by a blood test and of extraordinarily peculiar behavior consistent with intoxication by that particular type of substance.
We find the evidence sufficient to support the jury's verdict.
We affirm the judgment.
Jack Carter
Justice
Do Not Publish