No. 05-05-00731-CR
Opinion issued June 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 2, Dallas County, Texas, Trial Court Cause No. MA04-14393-B. Affirmed.
Before Chief Justice THOMAS and Justices O'NEILL and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice MALONEY.
The trial court convicted Gregory Finster of driving while intoxicated (DWI) and assessed a sentence of 180 days in the Dallas County Jail and an $800 fine. The trial court suspended the jail sentence and placed appellant on community supervision for twenty-four months. In one issue, appellant complains the evidence is legally insufficient because the State presented no evidence on the elapsed time between appellant's driving and his first contact with the police. We affirm the trial court's judgment.
BACKGROUND
Appellant and another vehicle collided as appellant exited a parking lot. A police officer was dispatched to investigate the collision. After arriving at the scene, the officer arrested appellant for DWI. SUFFICIENCY OF THE EVIDENCE
Appellant argues that the State did not present legally sufficient evidence to show the elapsed time between the time appellant was driving and the time the officer arrived at the scene. Specifically, he argues that no evidence exists on when appellant was driving his vehicle. The State responds that even though it is unknown how much time elapsed between appellant's driving and the officer's responding, the evidence is sufficient to show that appellant was intoxicated when driving his vehicle. THE EVIDENCE
Billy Clay, an Addison Police Officer, is the only witness who testified in this cause. At 10:30 p.m. on the date in question, he was dispatched to an accident involving three vehicles, two moving and one stationary. When Clay arrived, he found a Lexus facing southeast on the grassy portion of the sidewalk. A silver Volkswagon had struck a parked vehicle and was further in the parking lot, across the grassy portion of the sidewalk. In response to Clay's questioning, appellant admitted he owned the black Lexus. Appellant claimed as he pulled out of the parking lot, another vehicle struck his vehicle. Clay observed that if events had occurred as appellant described, the Lexus would have been damaged on its left side. Instead, it was damaged on its right side. Appellant had glassy eyes, slurred speech, and smelled of alcohol. He explained that he had two beers over the last two hours and had eaten. In response to Clay's administering a field sobriety test, appellant professed a problem-a current DWI probation-and asked Clay to "cut him a break." After the tests, Clay determined that appellant was too impaired to drive. Clay admitted he did not know when the accident occurred in relation to when he arrived on the scene. The trial court admitted the videotape of appellant made at the police station. The videotape depicted appellant receiving his admonishments and his refusal to submit to a Breathalyzer test. SUFFICIENCY OF THE EVIDENCE 1. Standard of Review
In evaluating the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The factfinder is the exclusive judge of the witnesses' credibility and of their testimony's weight, and it is within the factfinder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). A claim of legal insufficiency is, in effect, an argument that the case should never have even been presented. Id. 2. Applicable Law
A person commits a DWI if he operates a motor vehicle while intoxicated in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). Extrajudicial confessions alone will not support a conviction. Rocha v. State, 16 S.W.3d 1, 4 (Tex.Crim.App. 2000). But the corroborating evidence need not prove the offense, it must merely make the "commission of the offense more probable than it would be without the evidence." Cardenas v. State, 30 S.W.3d 384, 390 (Tex.Crim.App. 2000). We no longer look at what theories are not proven. See Geesa v. State, 820 S.W.2d 154, 160-61 (Tex.Crim.App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). We do not reverse unless the conviction is irrational or unsupported by more that a mere modicum of evidence. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). The critical issue is whether proof exists that will allow a factfinder to conclude that "at the time of the driving in question, whenever that might be, the defendant was intoxicated. . . ." Zavala v. State, 89 S.W.3d 134, 139 (Tex.App.-Corpus Christi 2002, no pet.). A defendant's refusal to take a breath test is admissible at trial, and the jury may infer guilt from that refusal. See Tex. Transp. Code Ann. § 724.061 (Vernon 1999); Gaddis v. State, 753 S.W.2d 396, 399-400 (Tex.Crim.App. 1988). 4. Application of Law to the Facts
Appellant limits his appeal to contending the State produced no evidence to show how long before the field tests appellant actually drove his vehicle. He does not challenge that he was intoxicated, only that the State produced no evidence to show the time between his driving out of the parking lot and when police arrived at the accident scene. We agree that no one testified to when the accident occurred and when Clay arrived at the scene. Appellant relies on McCafferty v. State, 748 S.W.2d 489 (Tex.App.-Houston [1st Dist.] 1988, no pet.); Coleman v. State, 704 S.W.2d 511 (Tex.App.-Houston [1st Dist.] 1986, pet. ref'd); and Sinast v. State, 688 S.W.2d 631 (Tex.App.-Corpus Christi), pet. ref'd, 698 S.W.2d 153 (Tex.Crim.App. 1985), to show that the State must establish some nexus between the time the evidence shows appellant intoxicated and when he drove the vehicle. He acknowledges the Geesa court abolished the "reasonable hypothesis" analytical construct in analyzing sufficiency claims, but contends we should use these cases to guide our decision. Rather than breathe new life into a rejected standard, we prefer to assess the evidence that is before us. Clay searched appellant's vehicle and found no "contraband." This indicates that nothing existed as evidence of alcohol consumption in the vehicle. This could lead a reasonable factfinder to conclude that appellant had nothing to drink between the time he drove out of the parking lot and Clay arrived at the scene. When Clay arrived at the scene, people were "still crowded around the" involved vehicles. This could lead a reasonable factfinder to conclude any extra crowd collected around an accident had remained for some reason. Appellant was standing next to his vehicle's driver's door, had the vehicle's keys in his pocket, and admitted having "two beers" within the last two hours. Additionally, he told Clay, he was pulling out of the parking lot when the accident occurred. From this, a reasonable factfinder could conclude that appellant had driven the vehicle at the time of the accident. Additionally, appellant refused to submit to the intoxilyzer test when taken into the intoxilyzer room at the police station. The above evidence shows that within two hours appellant had consumed alcohol, driven his vehicle, and been in an accident-an accident in which appellant's version did not comport with the damage to his vehicle. Viewing the evidence in the light most favorable to the verdict, we conclude any reasonable factfinder could have found the essential elements of the offense beyond a reasonable doubt. We resolve appellant's issue against him. We affirm the trial court's judgment.