No. 14-05-01244-CR.
Affirmed and Memorandum Opinion filed March 8, 2007. DO NOT PUBLISH.
On Appeal from the 268th District Court Fort Bend County, Texas. Trial Court Cause No. 40,546.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
LESLIE B. YATES, Justice.
Appellant Lamont Marcelous Gilbert was convicted by a jury of felony driving while intoxicated (ADWI") and sentenced to two years' confinement. In one issue, appellant complains the evidence is factually insufficient to support a guilty verdict. We affirm.
I. Factual and Procedural Background
On June 27, 2004 at 4:22 a.m., Deputy James Ressler of the Fort Bend County Sheriff's Office observed a truck parked near the entrance of a bank in Fort Bend County, Texas. After exiting his patrol car and approaching the truck, Deputy Ressler noticed the driver, appellant, resting his head on the steering wheel. Appellant looked at Ressler and drove away. According to Deputy Ressler, appellant drove through the bank's parking lot and into a fast-food restaurant's parking lot located next door. Ressler followed. He stated that appellant did not demonstrate any signs of intoxication while driving. After parking at the restaurant, appellant exited his vehicle and began walking toward the restaurant. Deputy Ressler observed appellant Aswagger from front to back and side to side." He believed appellant was Aintoxicated or possibly had some type of medical condition." When Deputy Ressler approached appellant, he immediately smelled a distinct odor of alcohol on appellant's breath and person. In response to questions by Ressler, appellant indicated that he did not know where he was and, despite two requests by Deputy Ressler, was unable to produce a driver's license. Finally, after a third request, appellant handed Ressler a card indicating he was on probation for a prior DWI. Deputy Ressler noticed that, during their colloquy, appellant slurred his speech and had bloodshot eyes. The deputy testified that, at this point, he Ahad reason to believe [appellant] was possibly intoxicated." Ressler then told appellant to stand behind his truck as he checked appellant's driver's license status on the computer in his patrol car. Appellant, however, attempted to walk to the driver's side of the truck, and Deputy Ressler redirected him and again told him to stand behind the truck. Deputy Ressler then saw appellant walk to the rear passenger side of the truck and reach into his pocket. Ressler testified he soon heard Asomething glass hit the concrete where [appellant] was standing." Deputy Ressler immediately went to investigate and found a small bottle of vodka, still intact, on the ground near appellant; he could not remember whether the bottle was empty. Deputy Ressler did not attempt to administer field sobriety tests because of appellant's demonstrated inability to follow directions. Instead, he placed appellant in the back of his patrol car because he Ahad reason to believe . . . he was intoxicated," and, because appellant had reached into his pocket, he did not feel safe leaving appellant standing behind the truck. Deputy Ressler then, in an attempt to Acut [appellant] a break," asked appellant for a phone number of someone to call to come pick him up. However, the person Ressler contacted responded that she was not able to come. Deputy Ressler testified that appellant then became Aagitated" and began yelling. En route to the jail, appellant yelled and kicked the divider in the back of the patrol car. Upon arriving at the jail, appellant was placed into a DWI investigation room, which was equipped with a video and audio recorder. In the investigation room, Deputy Ressler testified that appellant would not follow instructions, was belligerent, yelled, kicked the wall of the room, and spit on the floor. The State admitted a video recording of appellant in the room, and Deputy Ressler testified that appellant's actions in the room reflected his actions at the scene. Because of appellant's aggressive behavior, Deputy Ressler never administered field sobriety tests, and appellant refused to submit to a breath test. Deputy Ressler testified that, given appellant's lack of knowledge of his whereabouts, his generally unresponsive answers, his inability to produce identification after two requests, his inability to follow instructions, and his belligerent demeanor, he believed appellant had lost the normal use of his mental faculties due to alcohol intoxication. He further testified that because appellant rested his head on his steering wheel, staggered, and emitted a strong odor of alcohol, he thought appellant had similarly lost the normal use of his physical faculties due to alcohol intoxication. Appellant testified to a different version of the events. He denied parking in the bank's parking lot or driving from the bank's lot to the lot in the restaurant. He testified that he had come from a wedding and became lost. Because it was dark outside, appellant claimed he parked in the restaurant's parking lot and slept in the cab of his truck, intending to find his way back when it became lighter outside. Appellant stated he was awakened by Deputy Ressler tapping on his window. Appellant maintained that his truck was equipped with an interlock device, which required him to pass a breath test before the vehicle would start; thus, to speak to Deputy Ressler, appellant testified he successfully blew into the device to turn the key so he could roll down his window. Deputy Ressler, on the other hand, testified he never saw anything Aconsistent with" an interlock device on appellant's vehicle. Appellant denied drinking alcohol the day in question and denied being intoxicated. Appellant reasoned that he could not have driven drunk at any point because his vehicle would not have started after a failed breath test. When asked why he refused Deputy Ressler's request for a breath test, appellant explained that Ressler had already seen appellant successfully pass a breath test when he started his car to roll the window down. Though appellant admitted being Afurious" at the scene, he attributed his belligerent behavior to his frustration over Deputy Ressler's request for a breath test and his inability to contact family or get help and averred that Anothing got bad until I showed him my probation card." Appellant now challenges his conviction, claiming there was factually insufficient evidence of intoxication to support the jury's verdict. II. Standard of Review
In conducting a factual sufficiency review of the jury's determination, we do not view the evidence Ain the light most favorable to the prosecution." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Rather, we look at all evidence in a neutral light and will reverse a conviction only if (1) the evidence of guilt is so weak that the jury's verdict seems clearly wrong and manifestly unjust or, (2) considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex.Crim.App. 2006). However, it is not enough that we may harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. Id. at 417. We cannot conclude that a conviction is Aclearly wrong" or Amanifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Id. Nor can we declare that a conflict in the evidence justifies a new trial simply because we may disagree with the jury's resolution of that conflict. Id. Rather, before ordering a new trial, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict. Id. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to the evidence and any witness's testimony. Cain, 958 S.W.2d at 407. In conducting our review, we must also discuss the evidence appellant claims is the most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). III. Analysis
Appellant contends the State's evidence of intoxication is too weak to support a guilty verdict. Specifically, appellant makes the following contentions in attempting to undermine the jury's verdict: (1) Deputy Ressler had an inadequate opportunity to form a rationally-based opinion that appellant was intoxicated, as evidenced by his testimony that appellant was Apossibly" intoxicated, (2) Ressler did not observe any signs of intoxication when he saw appellant driving the truck, (3) the State never definitively disproved appellant's testimony that his car had an ignition interlock device, and (4) the vodka bottle that appellant allegedly threw away was never introduced into evidence. The jury could convict appellant of DWI if it found 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). A person is considered Aintoxicated" if he or she (1) does not have 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 those substances, or any other substance into the body or (2) has an alcohol concentration in his breath, blood, or urine of 0.08 or more. See id. '' 49.01(1), (2)(A)B(B) (Vernon 2003); Cotton v. State, 686 S.W.2d 140, 142B43 n. 3 (Tex.Crim.App. 1985) (enumerating various types of intoxication evidence, including odor of alcohol on person or breath, unsteady balance, and staggered gait). We find appellant's contentions unpersuasive. First, appellant reads Deputy Ressler's statement that he believed appellant was Apossibly intoxicated" in a vacuum, disregarding the remainder of Ressler's testimony regarding his observations and opinions. Deputy Ressler's statement describes his impression after initially seeing appellant stagger and detecting the odor of alcohol on his person. However, Deputy Ressler also testified that, based on the entirety of appellant's behavior, including his inability to follow instructions and belligerency, he believed appellant had lost the normal use of his mental and physical faculties due to alcohol intoxication. Second, Deputy Ressler's failure to observe signs of intoxication while appellant drove his vehicle is unavailing given that Ressler observed signs of intoxication directly after he witnessed appellant drive his vehicle. See, e.g., Rodriguez v. State, 31 S.W.3d 359, 361 (Tex.App.CSan Antonio 2000, pet. ref'd) (holding that investigating officer's testimony that he thought appellant was intoxicated, which was based entirely on conduct after appellant exited vehicle, rather than how appellant drove vehicle, was factually sufficient to support DWI conviction). Third, appellant's contention that the State failed to Adefinitively disprove" that his vehicle contained an interlock device lacks merit. Neither party offered any physical evidence tending to prove or disprove the presence of an interlock device in appellant's car. Therefore, determination of this issue depended solely on the credibility of the competing witnesses, appellant and Deputy Ressler. The jury chose to believe the latter, and we will not disturb this finding. See Cain, 958 S.W.2d at 407. Fourth, though the State did not admit the vodka bottle itself at trial, Ressler testified about the vodka bottle in detail, and, moreover, the State admitted a wrecker slip created during an inventory search of the vehicle that listed the vodka bottle as an item retrieved. In addition to the evidence appellant underscores, we have reviewed the remaining evidence in the record. Viewing the evidence in a neutral light, we do not find the evidence of intoxication so weak as to render the verdict clearly wrong and manifestly unjust or that the jury's verdict contradicts the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 417. Given the lack of scientific evidence, the element of intoxication rested largely on a credibility determination of the witnesses, namely appellant and Deputy Ressler. The jury had the discretion to determine issues of credibility, and we afford great deference to its findings. See Cain, 958 S.W.2d at 407; Page v. State, 7 S.W.3d 202, 209 (Tex.App.CFort Worth 1999, pet. ref'd) (holding in DWI case that, where neither party presented scientific evidence, and case depended solely on question of credibility, court would not determine whether appellant's or arresting officer's version of events proved more credible). Moreover, in addition to Ressler's testimony, the videotape showing appellant's belligerent behavior, the wrecker slip showing the vodka bottle retrieved from the scene, and appellant's refusal to submit to a breath test supports the jury's finding of intoxication. See Griffith v. State, 55 S.W.3d 598, 601 (Tex.Crim.App. 2001) (holding that refusal to submit to blood-alcohol test constitutes evidence of intoxication). Accordingly, we overrule appellant's sole issue and affirm the trial court's judgment.