Opinion
No. 05-05-00542-CR
Opinion issued March 1, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court of Appeals, Dallas County, Texas, Trial Court Cause No. MB04-50151-D. Affirmed.
OPINION
Appellant Donnie Claude Dickerson appeals his conviction for misdemeanor driving while intoxicated (DWI). The trial judge assessed appellant's punishment at an $800 fine and 180 days' confinement, suspended imposition of jail sentence, and placed appellant on two years' community supervision. In two issues, appellant complains the evidence is legally and factually insufficient to support his conviction. Concluding the evidence is both legally and factually sufficient, we affirm.
Appellant was also charged with driving while license suspended, to which he pleaded nolo contendere. That case is not before us in this appeal.
Factual Background
On February 19, 2004, at about 2:30 a.m., Dallas police officer Robert Harmon stopped appellant after observing him pull out of the parking lot of a bar and drive at a high rate of speed with no headlights on. Appellant pulled over immediately in a "safe stop." Upon approaching appellant's car, Harmon observed that appellant had a spray can of military tear gas between his legs, with his finger on top of the can. Appellant stated he went into the bar to wait for his wife to get off work. While there, appellant had a "few drinks." Harmon asked appellant to open the door of the vehicle and Harmon took the can from appellant. At that time, Harmon smelled the odor of alcohol and marijuana coming from the car. Harmon asked appellant to step to the curb until a "DWI Specialist" came. Appellant was highly irritated, had bloodshot eyes and slurred speech, and was argumentative and angry. No marijuana was found in the car; but Harmon, and later a second officer, saw marijuana stems and seeds scattered over the floorboard of the vehicle. Appellant's wife Trina Dickerson was also in the vehicle. Trina was arrested for public intoxication and outstanding warrants. Upon Trina's arrest, appellant became even angrier and things escalated. A female officer, Shelly Pearce, came to the scene to "deal with" Trina. Trina told Pearce that she worked at the nightclub, O'Reilly's Billards and Bar. Appellant and Trina were put in separate squad cars for transport to jail. They tried to communicate with each other. Appellant was angry, shouting, and generally obnoxious. Appellant contends he had his head outside the car window talking to Trina when Bennight rolled the window up on his head, injuring appellant. Bennight admitted rolling the window up to cut down on the noise, but said he pulled appellant's head out of the window before doing so. Appellant "thrashed about the seat and knocked the MVT bracket or the keyboard out of the bracket over it." Appellant was seen by a nurse, who concluded he was not injured. When Bennight, the "DWI specialist," arrived at the scene, appellant was already out of his vehicle. Appellant was uncooperative and belligerent. Bennight explained everything to appellant and made sure they were in a safe place to conduct the field sobriety tests. The overhead lights on all of the squad cars were turned off. The squad cars were blocking two lanes of traffic, so the tests were conducted on the roadway. Bennight first conducted the HGN test. During that test, he observed six clues of intoxication. Appellant was belligerent and refused any more tests. Having formed the opinion that appellant had lost the normal use of his mental and physical faculties, Bennight arrested appellant. A videotape showing appellant's behavior in the intoxilyzer room was admitted into evidence. According to the officers, the behavior appellant exhibited on the tape was essentially the same as his behavior at the scene. After the State rested its case in chief, appellant moved for a directed verdict, which the trial court denied. Thereafter, appellant called Trini Dickerson to the stand. She testified that she had been married to appellant for seven years. On February 19, 2004, she was working at O'Reilly's Billards and Bar at Forest Lane and Greenville. Trina was a bartender, but that evening she was waiting tables, not tending bar. Trina testified she never drinks when she works and could lose her job or go to jail if she did. At about 12:30 a.m., appellant arrived to pick her up. Trina got off at 2:15 a.m. Appellant was in the bar about an hour and forty-five minutes. The bartender stops serving at 2:00 a.m. Trina did not personally serve appellant any drinks, but she saw the bartender serve appellant when he first arrived. The bartender knew appellant was her husband. Appellant was served a twelve-ounce Bud Light beer and "an ounce and a quarter shot" of a cocktail drink. Appellant drank the cocktail first, then the beer. After that, he was only served Dr. Pepper. Appellant stopped drinking at 1:00 a.m. As far as Trina knew, appellant had worked all day before he came to pick her up. She was absolutely positive that all appellant had to drink after 1:00 a.m. was Dr. Pepper. Trina had not been smoking marijuana, and she had no idea why she was arrested for public intoxication. Trina recalled the window incident. Appellant was talking loudly so he could be heard, not in an "aggravated" manner. Appellant's head was outside the window when it was rolled up. She asked the other officers at the scene if they had seen that. They said no. She would not have gotten into the car with appellant if he had been intoxicated. The incident happened on a Wednesday. From 1:00 a.m. on, she was "all over the place" cleaning up. Trina was taken to "detox" that morning and stayed from about 3:30 a.m. until about 8:30 or 9:00 a.m. She described appellant's behavior at the scene as "confused" not angry, agitated, or obnoxious. Trina testified appellant was just tired from a fourteen-hour day. Appellant was "absolutely polite" to the officers and cooperated fully with them. Appellant rested, and both sides closed. After arguments were presented, the trial court found appellant guilty.Standards of Review and Applicable Law
The standards of review for legal and factual sufficiency of the evidence are well-established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.), cert. denied, 126 S. Ct. 481 (2005). When deciding whether the evidence is factually sufficient, we must examine all the evidence without the prism of the light most favorable to the verdict and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). The ultimate question in a factual sufficiency review is whether, considering all the evidence in a neutral light, a fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency review); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (factual sufficiency review). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9. As fact-finder, the trial judge was authorized to convict appellant of DWI if she found beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). The specific substance that caused intoxication is not an element of the offense. See Gray v. State, 152 S.W.3d 125, 132 (Tex.Crim.App. 2004). The DWI statute focuses on the acts of the defendant while intoxicated rather than the act of becoming intoxicated itself. See id.Analysis
Appellant challenges the legal and factual sufficiency only of the evidence to sustain his conviction for DWI under a combination of intoxicants, alcohol and marijuana. Appellant contends "[t]he information charged that Appellant had driven while intoxicated on a combination of alcohol and marihuana." He argues that although there was evidence of the presence of marijuana seeds and stems in his vehicle, there was no evidence that he had used marijuana or had driven while under its influence. Thus, appellant asserts, the evidence is insufficient to prove he was intoxicated as charged. The State responds that the evidence is both legally and factually sufficient to support the conviction. We agree with the State. The information alleged appellant didthen and there unlawfully operate a motor vehicle in a public place, while intoxicated, in that the defendant did not have the normal use of his mental and 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, namely: MARIJUANA, and any other substance into defendant's body . . .Appellant reads the information too narrowly in contending it alleged, and the State was obligated to prove, intoxication only by a combination of alcohol and marijuana. The information charged appellant with having lost the normal use of his mental and physical faculties by reason of the introduction into his body of any one of the following substances alone: alcohol, a controlled substance, a drug, or a dangerous drug. It also charged appellant with intoxication by introduction into his body a combination of marijuana and one or more of the alleged substances, or any other substance. It is well-established law that the State may plead in the conjunctive and prove in the disjunctive. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). The evidence heard by the trial court shows Harmon saw appellant leave the parking lot of a bar at 2:30 a.m. and drive at an excessive rate of speed on a public street in Dallas County without his headlights on. When Harmon stopped appellant, Harmon noticed the vehicle smelled of alcohol and marijuana. Appellant was uncooperative, angry, argumentative, and loud. Both Harmon and Bennight saw marijuana seeds and stems on the floorboard of appellant's vehicle. Appellant admitted to having been drinking on the night in question. Trina testified appellant drank a one and one-quarter ounce cocktail shot followed by a twelve-ounce beer. Bennight administered the HGN field sobriety test to appellant and detected six clues. Appellant refused to take further tests. Appellant's eyes were blood-shot and his speech was slurred. The trial judge viewed the videotape of appellant in the intoxilyzer room. According to Bennight, appellant's behavior at the scene was similar to that on the tape. Trina testified that neither she nor appellant had smoked marijuana, she had nothing to drink, and appellant only had two drinks on that night. As the fact-finder, the trial court was the exclusive judge of the credibility of the witnesses and was free to believe some, all, or none of the evidence presented. See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Applying the standards set out above, we conclude the evidence is both legally and factually sufficient to prove beyond a reasonable doubt that appellant was intoxicated, and while so intoxicated, drove a motor vehicle on a public street in Dallas County, Texas, on February 19, 2004. We overrule appellant's two issues. We affirm the trial court's judgment.