Opinion
NO. 01-16-00618-CR
07-18-2017
JOHN EDGAR CORBETT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas
Trial Court Case No. 1416464
MEMORANDUM OPINION
A jury found appellant, John Edgar Corbett, guilty of the felony offense of driving while intoxicated ("DWI"), third offense. After he pleaded true to the allegations in two enhancement paragraphs that he had twice been previously convicted of felony offenses, the trial court assessed his punishment at confinement for thirty-five years. In his sole issue, appellant contends that evidence is legally insufficient to support his conviction.
See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (Vernon Supp. 2016).
We modify the trial court's judgment and affirm as modified.
Background
Pasadena Police Department ("PPD") Officer A. Maldonado, a member of the "DWI task force," testified that on February 2, 2014, he was on duty "look[ing] for traffic violations." While stopped at an intersection, Maldonado saw a car and a black truck, driven by appellant, "racing through the intersection." The speed limit on the road was thirty-five miles per hour, and Maldonado estimated that both vehicles were traveling at about eighty miles per hour. When Maldonado caught up to appellant's truck and the car, he directed both drivers into a parking lot.
Officer Maldonado explained that as he approached appellant, who was standing outside of his truck, he "smell[ed] [a] strong odor of an alcoholic beverage on his breath" and saw that his eyes were red and watery. When Maldonado asked appellant whether he had been drinking, appellant initially said, "No," but then admitted to drinking "one beer." (Internal quotations omitted.) As appellant spoke, his speech was "slurred," and Maldonado noted that his "racing" and "aggressive" driving indicated that his judgment was impaired. Further, as he spoke to Maldonado, appellant smoked a cigarette, which people often use to mask the smell of alcohol. Based on Maldonado's observations at the scene, he opined that appellant was intoxicated.
Officer Maldonado further testified that he began to administer "a preliminary test" at the scene to determine whether appellant was intoxicated. During the "[H]orizontal [G]aze [N]ystagmus" ("HGN") test, Maldonado sought to determine whether appellant's eyes would "jerk[]" "as they gaze[d] from side to side." According to Maldonado, if a person's blood-alcohol concentration ("BAC") were to "reach[] over [0].08," then his "eyes w[ould] start jerking" or "tick as opposed to just going smoothly across." Maldonado noted that although he engaged in a "preliminary" HGN test, he was unable to conduct the "full HGN test" due to poor weather conditions at the scene. During his preliminary testing, however, Maldonado did see appellant's eyes "tick[]" or "bounce[]" "heavily," which indicated that appellant was likely impaired. Appellant also "sway[ed]" "slight[ly]" while Maldonado administered the preliminary HGN test.
Subsequently, Officer Maldonado "arrested [appellant] for [the] traffic violation" and took him to the PPD's station to "complete" field sobriety testing. Maldonado noted that at the time he arrested appellant, he knew that appellant was "impaired" and believed that it was not safe for appellant to be driving. When appellant's truck was inventoried at the scene, law enforcement officers found a "more than half full" open beer can, which was still "cold to the touch." This further indicated to Maldonado that appellant had been "drinking while he was driving his [truck]."
While at the PPD station, Officer Maldonado asked appellant to perform several field sobriety tests, but appellant refused. He also refused to submit to breath or blood testing. Subsequently, Maldonado obtained a search warrant so that appellant's blood could be drawn.
In regard to the driver of the car with whom appellant had been "racing," Officer Maldonado explained that he administered field sobriety tests to that person, who showed no signs of intoxication. Further, the other driver told Maldonado that appellant "looked like he wanted to fight," appeared to have been drinking, "almost hit his car," and was generally driving "aggressive[ly]." The other driver also explained that he had been driving fast to "get away from [appellant]," whom he thought "was drunk." (Internal quotations omitted.)
Bibyael Patel, a phlebotomist at the Bayshore Medical Center, testified that on February 2, 2014, she drew samples of appellant's blood. Dr. Matthew Cheney, previously employed as a forensic chemist III at the PPD Regional Crime Laboratory, testified that he analyzed appellant's blood samples to determine their ethyl-alcohol concentration. Cheney explained that appellant's blood was drawn at 12:45 a.m., about two-and-one-half hours after appellant had been stopped by Officer Maldonado. And at the time of the blood draw, appellant's BAC was "determined to be 0.115 grams per 100 milliliters of blood," which was greater than the legal limit of "0.080 grams per 100 milliliters of blood." According to Cheney, in order for appellant to have a BAC of 0.115, appellant would have to have had "six or seven standard drinks." Cheney did note that he was unable to use retrograde extrapolation in this case and it was possible that, at the time Officer Maldonado stopped appellant's truck, his BAC was below 0.080.
See Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim. App. 2001) ("Retrograde extrapolation is the computation back in time of the blood-alcohol level—that is, the estimation of the level at the time of driving based on a test result from some later time.").
Standard of Review
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the jury's verdict to determine whether any "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.
We note that in reviewing the legal sufficiency of the evidence, a court must consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is just as probative as direct evidence in establishing the guilt of an actor, and a conviction for the offense of driving while intoxicated may be supported solely by circumstantial evidence. See Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Sufficiency of Evidence
In his sole issue, appellant argues that the evidence is legally insufficient to support his conviction because there is no evidence that his BAC was "above [0].08 at the time he was driving" and "all other evidence" presented at trial "fail[s] to show that he had lost the normal use of his physical and mental facilities."
A person commits the offense of driving while intoxicated if he is intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (Vernon Supp. 2016); Gray v. State, 152 S.W.3d 125, 131 (Tex. Crim. App. 2004). Under Texas law, intoxication may be proven in two ways: (1) loss of "the normal use of mental or physical faculties by reason of the introduction of alcohol" or (2) "having an alcohol concentration of 0.08 or more." TEX. PENAL CODE ANN. § 49.01(2) (Vernon 2011); Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010).
Intoxication can be proven through circumstantial evidence. See Smithhart v. State, 503 S.W.2d 283, 285 (Tex. Crim. App. 1973); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) ("Circumstantial evidence may prove that a person has lost the normal use of his mental or physical faculties by reason of introduction of [alcohol] . . . into his body."); Paschall v. State, 285 S.W.3d 166, 177 (Tex. App.—Fort Worth 2009, pet. ref'd). A lack of balance and slurred speech can prove intoxication. Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001) ("Since the definition of 'intoxicated' includes 'not having the normal use of mental or physical faculties,' any sign of impairment in the [defendant]'s ability to speak would be circumstantially relevant to whether he was legally intoxicated while driving." (internal footnotes omitted)); Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (evidence of intoxication includes slurred speech, bloodshot eyes, odor of alcohol, unsteady balance, and staggered gait); Kiffe, 361 S.W.3d at 108. Also, as a general rule, the testimony of a law enforcement officer that a person is intoxicated provides sufficient evidence to establish the element of intoxication for the offense of driving while intoxicated. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979); Kiffe, 361 S.W.3d at 108; Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd). Notably, "[e]ach fact need not point directly and independently to the guilt of the [defendant], as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13.
Officer Maldonado testified that he saw appellant's truck "racing" through an intersection at approximately eighty miles per hour in a thirty-five-mile-per-hour speed zone. See Kirsch, 306 S.W.3d at 745 (erratic driving raises inference of intoxication); Zill v. State, 355 S.W.3d 778, 786 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ("[S]peeding can indicate impaired mental judgment and, therefore, is a factor to be considered . . . ." (internal quotations omitted)). When he approached appellant, Maldonado "smell[ed] [a] strong odor of an alcoholic beverage on his breath" and saw that his eyes were red and watery. Appellant's speech was "slurred," and he was smoking a cigarette, a tactic often employed by a person trying to mask the smell of alcohol. Appellant further admitted to drinking "one beer," and law enforcement officers found a "more than half full" open beer can, which was "cold to the touch," in appellant's truck. See Kirsch, 306 S.W.3d at 745 (evidence raising inference of intoxication includes post-driving behavior such as stumbling, swaying, slurring or mumbling words, bloodshot eyes, any admission by defendant of what, when, and how much he had been drinking); Annis, 578 S.W.2d at 407 (sufficient evidence where defendant appeared disorderly, had "mush-mouthed" speech, red eyes, and breath smelling of alcohol (internal quotations omitted)); Zill, 355 S.W.3d at 786-88 (sufficient evidence where defendant had strong odor of alcohol, "glassy" eyes, slurred speech, and admitted to drinking alcohol); see also Gamez v. State, No. 14-14-00203-CR, 2015 WL 4627298, at *1-2 (Tex. App.—Houston [14th Dist.] Aug. 4, 2015, pet. ref'd) (mem. op., not designated for publication) (sufficient evidence where defendant unsteady on feet, had red, bloodshot eyes, refused field sobriety tests and blood test, and had open bottle of beer on floorboard of car). Based on his observations at the scene, Maldonado opined that appellant was intoxicated. See Henderson, 29 S.W.3d at 622.
Officer Maldonado also explained that he had administered a "preliminary" HGN test at the scene to determine whether appellant was intoxicated. See Zill, 355 S.W.3d at 786-88 (sufficient evidence of intoxication although law enforcement officer did not have defendant complete field sobriety test). During the preliminary test, appellant's eyes "ticked" and "bounced" "heavily," which indicated that he was impaired. He also "sway[ed]" "slight[ly]" during the test. Appellant later refused to perform any field sobriety tests, and he refused to provide a breath or blood sample after he was transported to the PPD station. Maldonado obtained a search warrant in order to have appellant's blood drawn. See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) ("Evidence of the [defendant]'s refusal to submit to a breath test is relevant for precisely the reason . . . that it tends to show a consciousness of guilt on his part."); Zill, 355 S.W.3d at 786 ("A defendant's poor performance on the standardized field sobriety tests is further evidence of intoxication."); Russell v. State, 290 S.W.3d 387, 397 (Tex. App.—Beaumont 2009, no pet.) ("[T]he jury . . . could have inferred from [defendant]'s refusal to take a breath test that [he] believed he was intoxicated."); Finley v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991, pet. ref'd) ("Texas courts consistently uphold DWI convictions based upon the opinion testimony of police officers who observed the defendant's unsatisfactory performance in field sobriety tests."); see also Gamez, 2015 WL 4627298, at *1-2 (sufficient evidence where defendant unsteady on feet, had red, bloodshot eyes, refused field sobriety tests and a blood test, and had open bottle of beer on floorboard of car).
Further, Officer Maldonado noted that the driver of the car that appellant was "racing" stated that appellant appeared to have been drinking and that appellant "was drunk." (Internal quotations omitted.) The other driver also told Maldonado that appellant had "looked like he wanted to fight," had "almost hit his car," and was driving "aggressive[ly]." And the other driver had been trying to "get away from [appellant]" at the time that Maldonado stopped the two vehicles. (Internal quotations omitted.) See Kirsch, 306 S.W.3d at 745 (erratic driving raises inference of intoxication); Zill, 355 S.W.3d at 786 ("[S]peeding can indicate impaired mental judgment and, therefore, is a factor to be considered . . . ." (internal quotations omitted)).
Here, Officer Maldonado's testimony regarding appellant's behavior and his opinion that appellant was intoxicated provide sufficient support for the jury's finding of intoxication. See Annis, 578 S.W.2d at 407; Kiffe, 361 S.W.3d at 108; Henderson, 29 S.W.3d at 622; see also Brister v. State, 414 S.W.3d 336, 341 (Tex. App.—Beaumont 2013), aff'd on other grounds, 449 S.W.3d 490 (Tex. Crim. App. 2014) ("When based upon facts an experienced officer observes and then describes to the jury, an officer's opinion concerning a person's intoxication provides sufficient evidence of intoxication."). Further, we note that Dr. Cheney testified that the testing that he performed on appellant's blood sample, which was taken approximately two-and-one-half hours after Maldonado had stopped appellant, revealed that appellant's BAC was "0.115 grams per 100 milliliters of blond," which was greater than the legal limit. See Henderson, 29 S.W.3d at 622 ("[A] blood alcohol level beyond the legal limit, such as [defendant]'s, is probative evidence of a person's loss of his or her faculties."). Although appellant complains that Cheney was unable to use retrograde extrapolation in this case, evidence that appellant's BAC was greater than the legal limit two-and-one-half hours after he was stopped by Maldonado is still probative evidence of intoxication. See Kirsh, 306 S.W.3d at 745 ("BAC-test results, even absent expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment intoxication."); Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex. Crim. App. 2006) (results from defendant's breath test, taken more than hour after traffic stop, had considerable probative value on issue of intoxication at time of driving); Henderson, 29 S.W.3d at 622.
Viewing all of the evidence in the light most favorable to the jury's verdict, we conclude that the evidence is sufficient for a rational fact finder to have found beyond a reasonable doubt that appellant was intoxicated while he was driving his truck. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction.
We overrule appellant's sole issue.
Modification of Judgment
We note that the trial court's written judgment does not accurately comport with the record in this case in that it states "N/A," meaning "not applicable," in regard to appellant's "[p]lea to 1st [e]nhancement [p]aragraph" and "[p]lea to 2nd [e]nhancement/[h]abitual [p]aragraph." Further, the judgment states "N/A" in regard to the trial court's "[f]indings on 1st [e]nhancement [p]aragraph" and "[f]indings on 2nd [e]nhancement/[h]abitual [p]aragraph." See Dromgoole v. State, 470 S.W.3d 204, 226-27 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (modifying judgment which incorrectly reflected trial court's finding on enhancement paragraph as "n/a," meaning "not applicable" (internal quotations omitted)).
The record reveals that appellant actually pleaded "true" to the allegations in two enhancement paragraphs that he had twice been previously convicted of felony offenses, and the trial court found the allegations in both enhancement paragraphs to be true.
"[A]ppellate court[s] ha[ve] the power to correct and reform a trial court judgment 'to make the record speak the truth when [they] ha[ve] the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require.'" Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet ref'd)). Although neither party addresses the inconsistency between the trial court's written judgment and the record in this case, we, based on our review, conclude that the portion of the judgment regarding appellant's pleas to the allegations in the two enhancement paragraphs, and the trial court's findings, do not accurately comport with the record. See Asberry, 813 S.W.2d at 529-30 (authority to correct incorrect judgment not dependent upon request of any party).
Accordingly, we modify the trial court's judgment to reflect that appellant pleaded "true" to the "1st [e]nhancement [p]aragraph" and the "2nd [e]nhancement/[h]abitual [p]aragraph." We further modify the trial court's judgment to reflect that the trial court found the allegations in the "1st [e]nhancement [p]aragraph" and the "2nd [e]nhancement/[h]abitual [p]aragraph" to be true. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Torres v. State, 391 S.W.3d 179, 185 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (modifying judgment to state defendant pleaded "true" to allegations in enhancement paragraphs).
Conclusion
We affirm the judgment of the trial court as modified.
Terry Jennings
Justice Panel consists of Justices Jennings, Brown, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).