No. 12-06-00017-CR
Opinion delivered September 6, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 3 of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and HOYLE, J.
JAMES T. WORTHEN, Chief Justice.
Appellant William Patrick Dudley was convicted of driving while intoxicated, a class — misdemeanor. In two issues, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction and the trial court's admission of certain extraneous offenses. We affirm.
BACKGROUND
On October 3, 2005, Appellant was charged by information for driving while intoxicated in Smith County, Texas. Appellant pleaded "not guilty" and elected to have a jury decide his guilt or innocence. At trial, the State first called April Puckett to testify. Puckett said that between midnight and 1:00 in the morning on June 25, 2005, she was driving westbound on Shiloh Road, turning onto Copeland Road, when she saw a white Ford work truck weaving and headed toward her. She swerved to avoid being hit, but was hit on the driver's side toward the rear of her vehicle. Puckett immediately turned around to follow the truck. Having lost sight of it, she stopped at an apartment complex and called the City of Tyler Police Department to report the hit and run. Miranda Day testified that she was driving on Copeland Road on June 25 when she saw "a white early '90s Ford work truck . . just driving crazy." She noticed that the truck had toolboxes on it. She said it was going excessively fast and suddenly it "[flew] up onto the curb and [was] actually driving on the curb." Day saw the truck swerve, hit a car, and then stop at a green light. When the truck proceeded, she followed it as it continued to speed and weave in and out of traffic. The truck pulled into a gasoline station at Shiloh Road and almost drove into the front of the building. Day watched as Appellant experienced difficulty getting his truck in "park." He then got out of the truck and "stumbled" into the store. Day saw him fall over a newspaper vending machine. Day called the police department and stayed on the phone with the dispatcher. Appellant stumbled back out of the store with a pack of cigarettes, got into the truck, and sat there smoking for a few minutes. Appellant then put on his seat belt and sped out of the gasoline station. Day saw that a police car had arrived and began following Appellant. She continued to follow Appellant, estimating that he was driving at least 70 miles per hour, still weaving and driving very erratically. After proceeding through an intersection at Highway 110, the police officer initiated his lights and Appellant "started running . . . he just took off." Appellant was driving toward an 18 wheeler truck that swerved to the side of the road in an effort to avoid a "head-on" collision. Seeing first a cloud of smoke and dust, Day then saw Appellant's truck careen off the road. She stopped at the scene of the accident. Appellant was wearing work-type clothes and was very disheveled. Day identified Appellant as the same person she saw driving the white Ford truck. The State then called Noe Balderas, an officer with the Tyler Police Department, to testify. Officer Balderas said that he and Officer Jason Bean were on patrol together when they heard a dispatch on the police radio. A concerned citizen had called and reported a hit and run and possible DWI suspect that was within several blocks of their location. As they approached a gasoline station on Shiloh Road, Officer Balderas saw a white Ford F150 truck run over the curb as it left the parking lot and then accelerate at a high rate of speed. Because that vehicle matched the description of the vehicle reported by the concerned citizen, they followed it, observing that it was weaving in and out of traffic. Officer Balderas said that as the truck reached a red light at Shiloh Road and Highway 110, it stopped. The police car was immediately behind the suspect. Officer Balderas explained that they did not initiate the police lights or siren in case the driver decided to run the red light and endanger himself and others. After the light turned green, the truck "took off at a high rate of speed." After driving through the intersection, they initiated the overhead lights and siren, but the truck continued to accelerate. It began to "fishtail" at the same time that an 18 wheeler truck was approaching from the opposite direction. The 18 wheeler driver tried to steer clear of Appellant by pulling over to the side of the road. At the last moment, Appellant's truck "fishtailed" in the opposite direction from the truck, narrowly escaping a "head-on" collision. However, Appellant hit the last set of back wheels on the 18 wheeler. Upon impact with the 18 wheeler, Appellant's truck spun across the road and stopped approximately forty yards away. As the officers approached the vehicle, Officer Balderas smelled gasoline that he surmised was coming from the gasoline cans in the bed of Appellant's truck. He saw that Appellant's head was hanging out of the window and that he was unconscious. Emergency medical personnel arrived within minutes, and Appellant regained consciousness. He was taken by ambulance to the hospital. Officer Balderas said that Appellant had bloodshot eyes, his speech was slurred, and he had a strong smell of alcohol. In the emergency room, Appellant was combative, belligerent, and argumentative, and he had to be restrained at one time because he was about to hit a nurse. He refused to give a breath or blood sample. Because Appellant was being treated for possible injuries, they did not arrest him at the time. Instead, they submitted a report and issued an arrest warrant at a later date. Officer Jason Bean also testified. His account of the chase was essentially the same as Officer Balderas's account. Officer Bean said that as he approached Appellant's wrecked vehicle, he saw numerous beer cans strewn across the roadway and inside Appellant's truck. He smelled gasoline as he approached the truck, but when he opened the door to the truck, the odor of beer was so strong that it overwhelmed the gasoline smell. Officer Bean noticed that Appellant was either passed out or unconscious from the wreck or his intoxication. He said that he was unable to awake Appellant initially upon approaching. After the fire department arrived, Officer Bean saw Appellant open his eyes. They appeared "bloodshot, watery, and glassy, consistent with someone who's intoxicated." At the hospital emergency room, Appellant displayed key indicators of an intoxicated person — slurred speech, belligerent demeanor, slow reactions, and even drooling at the mouth. At the conclusion of the guilt/innocence phase, the jury found Appellant guilty as charged. Because Appellant had elected for the court to assess punishment, the trial court released the jury. The trial court then sentenced Appellant to 180 days of confinement and assessed a $2,000.00 fine. This appeal followed. EXTRANEOUS OFFENSES
In his first issue, Appellant asserts that the trial court erred in allowing witnesses to testify to extraneous offenses. Specifically, he contends that Puckett's and Officer Bean's testimonies concerning the hit and run involving Puckett should have been struck because there was no positive connection between Appellant's truck and the truck that hit her vehicle. Likewise, Appellant contends that testimony concerning the wreck with the 18 wheeler truck was inadmissible evidence of an extraneous offense. We need not address whether the trial court erroneously allowed evidence of extraneous offenses because in order to present an issue for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). Appellant did not object to any of the testimony of which he now complains nor did he request a limiting instruction. Further, Appellant did not object to the charge of the court that omitted language instructing the jury that they could not consider extraneous bad acts unless they believed beyond a reasonable doubt that he committed the acts. See Ex parte Varelas , 45 S.W.3d 627, 631 (Tex.Crim.App. 2001) (if requested, a jury should be instructed that they are not to consider extraneous act evidence unless they believe beyond a reasonable doubt that the defendant committed that act). Consequently, we conclude that Appellant failed to preserve this issue for appellate review. See TEX. R. APP. P. 33.1(a)(1); see also Manoy v. State , 7 S.W.3d 771, 779 (Tex.App.-Tyler 1999, no pet.) (failure to make a timely objection waives any error on appeal). Accordingly, we overrule Appellant's first issue. SUFFICIENCY OF THE EVIDENCE
In his second issue, Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. Specifically, he contends that the evidence was insufficient to prove that he was intoxicated. Standard of Review — Legal Sufficiency Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Escobedo v. State , 6 S.W.3d 1, 6 (Tex.App.-San Antonio 1999, pet. ref'd) (citing Jackson v. Virginia , 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979)). In reviewing a legal sufficiency challenge, the appellate court examines the evidence in the light most favorable to the judgment to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State , 871 S.W.2d 183, 186 (Tex.Crim.App. 1993) (citing Jackson , 443 U.S. at 319, 99 S. Ct. at 2789). The conviction will be sustained "unless it is found to be irrational or unsupported by more than a `mere modicum' of the evidence." Moreno v. State , 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). The jury is the exclusive judge of (1) the facts, (2) the credibility of the witnesses, and (3) the weight to be given to the testimony of each witness. Barnes v. State , 876 S.W.2d 316, 321 (Tex.Crim.App. 1994); Penagraph v. State , 623 S.W.2d 341, 343 (Tex.Crim.App. 1981). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury's domain. Losada v. State , 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State , 763 S.W.2d 587, 588-89 (Tex.App.-Corpus Christi 1988, pet. ref'd). A successful legal sufficiency challenge results in the rendition of an acquittal by the reviewing court. See Tibbs v. Florida , 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982). Applicable Law and Discussion A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04 (Vernon 2003). "Intoxicated" is defined as (A) 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, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more. TEX. PEN. CODE ANN. § 49.01(2)(A), (B) (Vernon 2003). Day testified that Appellant hit a vehicle with his truck and kept driving. She saw Appellant almost run his vehicle into a store, stagger inside the store, and fall over a newspaper stand. She also saw Appellant leave the parking lot, drive over a curb, weave in and out of traffic, and hit an 18 wheeler before wrecking. Day believed Appellant to be intoxicated. "It is elementary in Texas that one need not be an expert in order to express an opinion upon whether a person he observes is intoxicated." Vaughn v. State , 493 S.W.2d 524, 525 (Tex.Crim.App. 1972). Officers Balderas and Bean observed Appellant's reckless driving and ensuing wreck with the 18 wheeler. They both smelled a strong odor of alcohol on Appellant and observed slurred speech, glassy eyes, and belligerent behavior. Numerous beer cans were found in Appellant's vehicle. The officers believed Appellant to be intoxicated. Lay opinion testimony by police officers that a person is intoxicated is probative evidence that a person was intoxicated. See Henderson v. State , 29 S.W.3d 616, 622 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Viewing all of the evidence in the light most favorable to the jury's verdict, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol. Therefore, we hold that the evidence was legally sufficient to support the jury's verdict. Standard of Review — Factual Sufficiency Turning to Appellant's contention that the evidence is not factually sufficient to support the jury's verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State , 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State , 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). Although we are authorized to disagree with the jury's determination, even if probative evidence exists that supports the verdict, see Clewis , 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Santellan , 939 S.W.2d at 164. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See Van Zandt v. State , 932 S.W.2d 88, 96 (Tex.App.-El Paso 1996, pet. ref'd). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State , 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). A verdict will be set aside "only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." Ortiz v. State , 93 S.W.3d 79, 87 (Tex.Crim.App. 2002); see Sims v. State , 99 S.W.3d 600, 601 (Tex.Crim.App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury's finding "shocks the conscience" or "clearly demonstrates bias." Zuniga , 144 S.W.3d at 481. As the court of criminal appeals explained in Zuniga , "There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt?" See d. at 484. Discussion In addition to the evidence already discussed, the record reflects that some facts do not affirmatively show that Appellant no longer had the normal use of his mental or physical faculties by reason of the introduction of alcohol. The record shows that Appellant was involved in an accident that could have caused some of the behavior and characteristics he exhibited at the scene of the wreck and the hospital. Additionally, because of his injuries, it was not possible to perform the standardized field sobriety tests on Appellant at the scene of the wreck. Further, because Appellant refused a breath or blood test, no scientific evidence was obtained to show that he was intoxicated. We have reviewed the record in its entirety. In our evaluation, we should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See Santellan , 939 S.W.2d at 164; see also Page v. State , 7 S.W.3d 202, 209 (Tex.App.-Fort Worth 1999, pet. ref'd) (stating that because there was no scientific evidence in the DWI case against the appellant, it was entirely a question of credibility for the fact finder). Further, where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See Van Zandt , 932 S.W.2d at 96. The jury accepted the State's version of the facts and found against Appellant. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury's finding, has not revealed to us any evidence causing us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant's conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury's verdict. We overrule Appellant's second issue. DISPOSITION
Having overruled both of Appellant's issues, we affirm the judgment of the trial court.