No. 04-06-00853-CR
Delivered and Filed: September 12, 2007. DO NOT PUBLISH.
Appeal from the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-7978, Honorable Bert C. Richardson, Judge Presiding. AFFIRMED
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
SANDEE BRYAN MARION, Justice.
A jury found defendant, Abel Gonzales, guilty of felony driving while intoxicated and the trial court assessed punishment at eight years' confinement. In two issues on appeal, defendant asserts the evidence is legally and factually insufficient to support his conviction of driving while intoxicated. We affirm.
BACKGROUND
On January 19, 2005, at approximately 11:45 p.m., Officer Monty McCann of the San Antonio Police Department was working the DWI Step Program when he noticed a vehicle weaving within its lane on Highway 90. Officer McCann checked his mounted radar unit, which indicated defendant was driving seventy-two miles per hour in a sixty-five mile per hour speed zone. Officer McCann then observed the vehicle cross over approximately halfway into the next lane where it stayed for about three or four car lengths before drifting back into the original center lane. As a result of his observations, Officer McCann initiated the traffic stop. After Officer McCann activated his emergency overhead lights, the vehicle moved to the right lane, approaching the opening of an exit off of the highway, and then abruptly moved back into the traffic lane and came to a stop on the shoulder about several hundred yards down the highway. Once Officer McCann approached the vehicle, he observed that the defendant appeared to be confused while he fumbled through his wallet, going back and forth through the papers in his wallet, and eventually producing his driver's license. Officer McCann noticed the defendant had slurred speech and was slow to answer his questions. Officer McCann asked the defendant where he was coming from and the defendant responded that he was a plumber and he was coming from work. Officer McCann asked the defendant if he had had anything to drink and the defendant responded that he had one beer about an hour earlier. Officer McCann then asked the defendant to step out of the vehicle so that he could conduct a series of field sobriety tests. As the defendant exited the vehicle, the officer immediately noticed a moderate to strong smell of alcohol on the defendant's breath. Officer McCann and the defendant walked to the shoulder of the highway in front of the defendant's vehicle, and the officer observed that defendant was able to walk normally. Officer McCann first conducted the horizontal gaze nystagmus ("HGN") field sobriety test, on which defendant displayed the presence of all six of the possible clues of intoxication. Next, Officer McCann conducted the Romberg Balance test, during which the defendant was asked to stand with his feet together, hands to the side, head back, and eyes closed, while he had to estimate when he believed thirty seconds of time had passed. The officer observed the defendant swaying in a circular fashion about two inches from center, and defendant estimated thirty seconds of time had passed when only eleven seconds had elapsed. The defendant was asked if he had any physical ailments that would affect his ability to perform the one-leg-stand test, and the defendant responded he had arthritis but that he would try to do the test. Officer McCann then conducted the one-leg-stand test, during which defendant was instructed to count until told to stop. During the test, defendant raised his arms much higher than allowed, he put his foot down and then started again, and he put his foot down a second time and then refused to continue with the test. Officer McCann concluded the defendant exhibited two of the four possible clues of intoxication. The final test Officer McCann conducted was the walk-and-turn test. Officer McCann observed the defendant was unable to keep his balance when he was standing in the beginning position while being instructed, and he kept trying to start before the instructions were finished. In addition, defendant did not walk heel-to-toe the entire time as instructed, he turned incorrectly, he used his arms to balance by raising them more than he was allowed, and he stepped off of the line three different times during that test. The officer concluded that the defendant exhibited seven out of the eight possible clues of intoxication. At trial, Officer McCann testified he had thirteen years of experience with the San Antonio Police Department and was certified to conduct field sobriety tests four and a half years ago. As a result of his observations, Officer McCann concluded the defendant was intoxicated and there was enough probable cause to arrest him. Defendant was arrested and taken to the magistrate's office where he was placed in a video monitored "ASAP room." Once in the ASAP room, appellant was read his rights from a DIC-24 statutory warning, after which defendant refused to submit to the breath test. Officer McCann testified that based on his training and experience as a police officer, he concluded the defendant had lost the normal use of his mental and physical faculties. At trial, defendant stipulated to two prior convictions for driving while intoxicated. Upon hearing the evidence, a jury convicted defendant of the felony offense of driving while intoxicated and the trial court assessed punishment at eight years' confinement. LEGAL AND FACTUAL SUFFICIENCY
Defendant argues in two issues that the evidence is legally and factually insufficient to support his conviction. We review the legal sufficiency of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). We review the factual sufficiency of the evidence by considering all the evidence in a neutral light and only reversing when: (1) the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). "A reversal for factual insufficiency cannot occur when `the greater weight and preponderance of the evidence actually favors conviction.'" Id. (quoting Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006)). A person commits the offense of driving while intoxicated if the person is: (1) operating a motor vehicle, (2) while intoxicated, (3) in a public place. Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). In this case, defendant was charged with intoxication for not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body. Id. § 49.01(2). Defendant contends the evidence is legally and factually insufficient to support a finding that he was intoxicated by pointing to a number of factors. First, defendant argues the vehicle he was driving was over twenty years old and does not drive as well as a newer vehicle, which defendant asserts accounts for his weaving across traffic lanes. The jury heard testimony from Officer McCann that it was possible that the age of the vehicle could have contributed to the defendant's driving. However, in addition to that testimony, the officer also testified that defendant not only weaved within his lane, he also unlawfully crossed into another lane. Defendant further argues there are rational explanations, apart from intoxication, that explain why he performed poorly on the field sobriety tests. Defendant attributes his poor performance in part to his arthritis. Finally, defendant argues that the video tape that was taken while he was in the ASAP room, approximately an hour after defendant was stopped, indicates he was not intoxicated. Officer McCann testified that at the scene defendant's speech was more slurred and the sway in his balance was more pronounced at the scene than it was on the videotape taken while defendant was in the ASAP room. Officer McCann attributed the difference in defendant's behavior to the passage of time between the stop and video tape. Furthermore, the State concedes that the defendant may have appeared less intoxicated on the tape, but asserts it was due to the passage of time between the stop and the video tape. The jury as trier of fact is the sole judge of the credibility of the witnesses and the weight to be given the testimony. See Cain v. State, 958 S.W.2d 404, 407-409 (Tex.Crim.App. 1997). It may accept or reject all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). Officer McCann testified that based on his experience as a police officer, the defendant's driving, his speed, how he responded to the questions, the moderate to strong smell of alcohol coming from him, and his performance on the field sobriety tests, led him to the conclusion that the defendant had lost the use of his mental and physical faculties. Officer McCann's testimony is sufficient to show intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979) (holding that an officer's opinion testimony that a defendant was intoxicated is sufficient to establish intoxication); Henderson v. State, 29 S.W.3d 616, 622 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Viewing the evidence in the light most favorable to the verdict, we hold the jury could have found beyond a reasonable doubt that defendant was intoxicated. See Jackson, 443 U.S. at 319; Guevara, 152 S.W.3d at 49. Also, we find the evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust or that the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. See Roberts, 220 S.W.3d at 524. CONCLUSION
Accordingly, we overrule defendant's issues on appeal and affirm the trial court's judgment.