Gutierrez v. State

Full title: MARIO GUTIERREZ, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 21, 2006

No. 05-05-00533-CR (Tex. App. Mar. 21, 2006)

Opinion

No. 05-05-00533-CR

Opinion issued March 21, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the County Criminal Court of Appeals No. 2, Dallas County, Texas, Trial Court Cause No. MB04-32897-M. Affirmed.

Before Justices MORRIS, MOSELEY, and FITZGERALD.

OPINION

Opinion By Justice MORRIS.

After a jury trial, Mario Gutierrez challenges the factual sufficiency of the evidence to support his conviction for driving while intoxicated. Appellant further contends the trial court erred in submitting the theory of per se intoxication to the jury in the absence of retrograde extrapolation evidence. Concluding appellant's points of error are without merit, we affirm the trial court's judgment.

Factual Background

At about 2:50 a.m., an off-duty police officer was driving home when she noticed a small gray pickup truck driving erratically in front of her. She followed the truck for about fifteen or twenty minutes. During that time, the truck was unable to stay in a single line of traffic. It would go across the line a couple of feet into another lane of traffic, then come back, brake, and then speed up. She estimated the truck crossed over into another lane of traffic between ten to twelve times while she was following it. She also saw the truck make five or six U-turns. At one point, the truck braked as it approached a green light. The light changed to yellow, then red, and the truck sped up, but ultimately stopped before the intersection. She also witnessed the truck make a U-turn in front of another vehicle. The other vehicle had to brake forcefully to avoid colliding with the truck. At that point, the off-duty officer called 9-1-1. In response to a dispatch call, Grand Prairie Police Officer Loraine Sandifer started to follow the truck at about 3:00 a.m. She testified that she observed the truck repeatedly start to cross the white line, as if to change lanes, but then jerk back. After she witnessed the truck make a second U-turn, she activated her lights, and both vehicles turned off the roadway into a driveway of a nearby business. As Sandifer walked up to the truck, appellant made no attempt to roll down the window or open the door, even after Sandifer shined her flashlight into the truck. She asked appellant to open the door and when he did not respond, she reached down and opened the latch. Once the door was open, she smelled alcohol. Although Sandifer told appellant to sit in the truck, he got out. Sandifer noted appellant had a little difficulty getting out of the vehicle. Appellant seemed confused and dazed and said he was lost. Appellant admitted that he had been drinking and had consumed four beers. He was unable to give specific responses to Sandifer's questions about where he was coming from and where he was going. Sandifer, who had been trained in field sobriety testing, performed three standardized field sobriety tests on appellant. First, Sandifer administered the horizontal gaze nystagmus test. On the HGN test, appellant demonstrated four out of the six possible clues of intoxication. Next, Sandifer administered the walk-and-turn test. Appellant exhibited five clues of intoxication, including beginning the test too soon, losing his balance during the instructions, inability to walk heel to toe, turning incorrectly, and stepping off the line. Finally, Sandifer administered the one-leg-stand test. Appellant could pick up his foot off the ground for only a few a few seconds and was unable to complete the test, exhibiting two clues of intoxication. On cross-examination, Sandifer admitted that during her observation of appellant, he did not slur his speech or exhibit any abnormal oscillation or sway. She also acknowledged that being more that fifty pounds overweight might affect one's performance on the one leg stand test, but it would not invalidate the test results. Sandifer agreed that strobe lights could affect the results of HGN test. She testified, however, that she turned her strobe lights off before administering that test to appellant. Additionally, she conceded there might have been a slight incline on the ground where she asked appellant to perform the tests but that it did not affect the test results. She noted that although appellant told her about his knee surgery after he attempted the one-leg-stand test, this would not necessarily affect his performance on the tests. She also acknowledged it was windy at the time the tests were administered, but she did not think the wind was strong enough to affect appellant's performance on the tests. After the tests, Sandifer determined appellant was intoxicated, placed him under arrest, and transported him to the police station. At the station, appellant repeated the walk-and-turn test and the one-leg-stand test. Although he performed much better on the walk-and-turn test, he was still unable to complete the one-leg-stand test. When Sandifer asked appellant whether he was under the influence of alcohol he responded, "Of course." Appellant was asked to give a breath sample at the police station. A certified intoxilyzer operator observed appellant for fifteen minutes and performed internal checks on the machine before administering the breath test at 3:50 a.m. Although appellant was instructed to continue blowing until the operator told him to stop, appellant had a hard time following these instructions. The technical supervisor of the intoxilyzer machine on which appellant was tested testified about the scientific principles underlying the test and explained at length about the measures taken to ensure accurate results. Appellant's breath sample showed an alcohol concentration of .155. The technical supervisor indicated that at a level of .08 or higher, a person is too impaired to safely drive a motor vehicle. A videotape of Sandifer following appellant's truck, performing field sobriety tests, and interviewing and testing appellant at the police station was admitted into evidence. Gary Wimbish testified as a toxicolcogy expert for the defense. He indicated that based on his review of the videotape, the HGN test performed by Sandifer was invalid because she moved her finger back and forth too quickly and a strobe light was on in the background. He further testified that the results of the walk-and-turn test were similarly invalid because appellant was more that fifty pounds overweight and the area where it was administered was on an incline. He also indicated that the one-leg-stand should not have been used to determine appellant's intoxication because appellant was overweight. Wimbish noted that additional clues of intoxication include slurring of speech, swaying, or inappropriate oscillation. Appellant admitted into evidence medical records indicating that he had surgery on his left knee in May 2003.

Discussion

In his first point of error, appellant argues the evidence is factually insufficient to support the finding of guilt because the standardized field sobriety tests were not properly administered and there was no evidence appellant had a breath alcohol content in excess of .08 at the time he was operating a motor vehicle. When reviewing a factual sufficiency challenge on appeal, we view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We must determine whether a neutral review of all the evidence, both supporting and against the finding demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually sufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the findings beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. See id. at 484-85. The issue here is whether the evidence was factually sufficient to support the jury finding that appellant was intoxicated at the time he was driving. The jury was instructed that the law deems a person to be intoxicated while driving if: (1) he does not have the normal use of his mental or physical faculties by reason of introduction of alcohol into the body; or (2) he has an alcohol concentration of .08 or more. Thus, the jury could convict appellant if it believed beyond a reasonable doubt that appellant satisfied either of these theories. After reviewing the record, we conclude the evidence was factually sufficient to support a jury finding under either theory. The jury had before it the testimony of two witnesses detailing appellant's erratic driving patterns, the arresting officer's observations of appellant's behavior immediately after the stop, appellant's admission that he had consumed four beers, the results of three field sobriety tests, a breath test taken about fifty minutes after the stop that was almost twice the legal limit, and the videotape from the officer's patrol car. Although there was evidence the field sobriety tests were not properly performed, that appellant's erratic driving was the result of being lost, and that a knee injury affected his performance on the tests, the members of the jury were free to evaluate and weigh the conflicting evidence. See Zuniga, 144 S.W.3d at 482. Viewing the foregoing evidence in a neutral light, favoring neither party and giving due deference to the factfinder's determinations, we conclude there is factually sufficient evidence that appellant was driving while intoxicated. In reaching this conclusion, we necessarily reject appellant's argument that there was no evidence that his breath alcohol content was .08 or greater at the time he was operating a motor vehicle. Appellant's intoxilyzer result of .155 fifty minutes after he was stopped is some probative evidence that he had breath alcohol content of .08 or higher at the time he was driving. See Mechler v. State, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005) (intoxilyzer results of .165 an hour and a half after the appellant was arrested was probative evidence supporting both per se and impairment theories of intoxication); Stewart v. State, 129 S.W.3d 93, 97 (Tex.Crim.App. 2004) (intoxilyzer results of .16 and .154 about an hour and twenty minutes after the appellant was pulled over were probative evidence of intoxication under either theory of intoxication.). There was no evidence that appellant consumed alcohol after he was stopped. The breath test results along with the other evidence admitted at trial was evidence that appellant had an alcohol content of .08 or greater at the time he was driving. We overrule his first point of error. In his second point of error, appellant argues that the trial court erred in submitting the per se theory of intoxication to the jury because there was no evidence of retrograde extrapolation or the theory of alcohol absorption and elimination. Appellant cites no authority that requires such evidence before the per se theory may be submitted to the jury, and we have found none. In fact, at least one court has held that a per se instruction was properly submitted to the jury based solely on intoxilyzer results of .164 and .169 just over an hour after the accident. See Owen v. State, 905 S.W.2d 424, 439 (Tex.App.-Waco 1995, pet. ref'd). Absent retrograde extrapolation, the intoxilyzer test results taken fifty minutes after appellant was stopped were some evidence that appellant had a .08 or greater alcohol content while he was operating a motor vehicle. See Mechler, 153 S.W.3d at 440; Stewart 129 S.W.3d at 97. The trial court properly submitted the per se theory of intoxication to the jury. We overrule appellant's second point of error. We affirm the trial court's judgment.