Opinion
No. 05-08-00689-CR
Opinion filed June 26, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the County Criminal Court No. 10, Dallas County, Texas, Trial Court Cause No. MB07-17590-L.
Before Justices FITZGERALD, LANG, and FILLMORE.
OPINION
A jury convicted Craig Dale of driving while intoxicated (DWI). The trial court assessed punishment at 180 days confinement in the county jail, probated for twenty-four months, and a $1500 fine. In a single issue, appellant contends the evidence is factually insufficient to support the conviction. We affirm. In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). The State was required to prove beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place. See 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, or a combination of two or more of those substances or any other substance into the body, or by having an alcohol concentration of 0.08 or more. See id. § 49.01(2). Among other things, evidence of intoxication may include: (1) slurred speech; (2) bloodshot eyes; (3) the odor of alcohol on the person or on the breath; (4) an unsteady balance; and (5) a staggered gait. See Cotton v. State, 686 S.W.2d 140, 142 n. 3 (Tex.Crim.App. 1985). The uncorroborated testimony of an arresting officer is sufficient to prove the element of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979); Watkins v. State, 741 S.W.2d 546, 549 (Tex.App.-Dallas 1987, pet. ref'd). The jury heard testimony from Dallas County Sheriff's Deputy John Rainey and Sergeant Elias Favors, who stopped appellant's vehicle on January 11, 2007 after observing several traffic violations. Rainey testified that while he and Favors were traveling south on Interstate-35, he saw a blue Lincoln Towncar go onto the left shoulder of the road, correct itself, change lanes several times without signaling, and veer into another lane several times. Rainey pulled the vehicle over at the Illinois exit at approximately 2:00 a.m. Appellant was in the driver's seat and a man later identified as Kenneth Peoples was in the front passenger seat. Rainey testified that when he approached the driver's side of the vehicle, he smelled a strong odor of alcoholic beverage from inside the car. Appellant exited the vehicle and walked to its rear. Rainey testified that when appellant exited the vehicle, he was unsteady while walking. Appellant said he had two alcoholic drinks that evening. Appellant denied having any medical problems that would preclude him from performing any field sobriety tests. Rainey, who is certified to give standardized field sobriety tests, administered the horizontal gaze nystagmus (HGN) test to appellant. Rainey testified he did not administer the walk-and-turn and one-leg stand tests to appellant because of the road conditions. On the HGN, Rainey observed four out of six clues. Rainey believed appellant had lost the normal use of his mental and physical faculties due to alcohol consumption. He arrested appellant. After other officers and a wrecker arrived on the scene, Rainey transported appellant to the jail's intoxilyzer room. During cross-examination, Rainey testified the standardized field sobriety test manual states that when administering the HGN, one should move the stimulus, a finger or a pen, approximately two seconds out and then two seconds back to the starting point. When he administered the test to appellant, he moved the stimulus only one second out and one second back to the starting point. Favors testified he was supervising Rainey on January 11, 2007 when they saw a blue Lincoln Towncar veering onto the left shoulder of southbound Interstate-35, failing to maintain a single lane, and changing lanes without signaling. Favors testified appellant's driving was a danger to himself, his passenger, and anyone else on the road at that time. Rainey stopped the vehicle and contacted the driver, who was appellant. Favors contacted Peoples, who was sitting in the front passenger seat. Favors did not administer any field sobriety tests to Peoples, but Favors arrested Peoples for public intoxication after Favors smelled a strong odor of alcoholic beverage coming from him and saw him using the doorframe to hold himself up when he exited the vehicle. Jackie Cork, a certified intoxilyzer operator, testified he administered several tests to appellant while in the intoxilyzer room, including the "Six Flags" card, reciting the alphabet, counting backward, and estimating thirty seconds while standing still with eyes closed. Cork testified that during the reading of the Six Flags card, appellant said the word "blueprint" although that word does not appear on the card; when reciting the alphabet from the letter "D" to the letter "T," appellant "messed up," when counting backward from number "38" to number "22," appellant stopped at twenty-nine but continued; and during the stand and balance test, appellant swayed "more than normal" and stopped after eight or nine seconds rather than thirty seconds, as instructed. Cork testified appellant stated he was driving the vehicle, it had no mechanical problems, and he did not have any medical problems. Appellant stated he had consumed two drinks of "Crown and Coke," the last being at approximately 12:30 a.m. Cork testified he administered breath tests to appellant at approximately 3:00 a.m. A DVD made from the intoxilyzer room videotape was played for the jury. The results of the intoxilyzer tests conducted at the jail showed appellant had an alcohol concentration of 0.099 and 0.094. Cork testified the intoxilyzer machine was working properly when he administered the tests to appellant. Peoples testified on appellant's behalf. Peoples testified he and appellant had each ordered two alcoholic drinks that evening, but he did not see appellant finish the second drink. As they drove home from a restaurant, appellant was pulled over by police officers. Peoples denied he used the doorframe to support himself when he got out of the vehicle. Peoples testified neither he nor appellant were intoxicated, and he did not notice appellant weaving in the lane or changing lanes without signaling. Peoples further testified he knew appellant had dyslexia. Caprina Dale, appellant's wife, testified she watched the DVD from the intoxilyzer room and appellant was behaving normally. She did not observe appellant experiencing any balance or walking problems on the DVD. She testified that appellant has dyslexia and, when he reads, he gets "confused at times." Appellant's dyslexia "comes and goes," and does not affect his life in any negative manner. She testified she has seen appellant intoxicated on a previous occasion, and he was not intoxicated on the DVD. Appellant did not testify during the trial. Appellant now contends the evidence is factually insufficient because the testimony of Peoples and Dale rendered the State's evidence too weak to sustain the conviction. Appellant asserts there was no affirmative evidence showing his driving was dangerous or illegal. Appellant further contends the odor of alcoholic beverage was coming from Peoples, the HGN was improperly administered and cannot support an intoxication determination, and his dyslexia caused any mishaps with reading, reciting the alphabet, or counting backwards. The State responds that the evidence is factually sufficient to support appellant's DWI conviction. There was evidence before the jury that appellant admitted he had consumed two drinks before driving home. Both Rainey and Favors saw appellant driving in a dangerous and illegal manner, and Rainey smelled alcohol on appellant when appellant exited the vehicle. Breath tests given to appellant over two hours after he said he consumed his last alcoholic drink showed results of 0.099 and 0.094, above the 0.08 statutory limit. Appellant contends, essentially, that Peoples and Dale were more credible than Rainey and Favors. It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any or all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Viewed under the proper standard, we conclude the evidence is factually sufficient to support the jury's verdict. See Roberts, 220 S.W.3d at 524; Annis, 578 S.W.2d at 407. We resolve appellant's sole issue against him. We affirm the trial court's judgment.