No. 05-02-00630-CR.
Opinion Filed April 11, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 380th District Court, Collin County, Texas, Trial Court Cause No. 380-81650-01. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG.
Opinion By Justice FITZGERALD
Kenny Ray Hogue appeals his conviction for felony driving while intoxicated (DWI), enhanced by a prior felony conviction. After the jury found appellant guilty, the trial court found the enhancement allegation true and sentenced appellant to ten years' imprisonment. Appellant brings nine points of error contending the State failed to prove venue in Collin County and that the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On September 21, 2001, at about 10:00 a.m., Robert Gusman was driving his pickup truck and was stopped at a stoplight. He looked in his rearview mirror and saw a white car driving toward him swerving within the lane. A moment later, the white car hit Gusman's truck. Gusman radioed his dispatcher about the incident and got out of his truck. Appellant got out of the white car and apologized to Gusman. Appellant's eyes were red, his speech was slurred, his walking was wobbly and "bumblely," he was swaying, and he smelled of alcohol. Gusman told appellant he needed to see his driver's license and insurance to report the accident to his company. Appellant told Gusman he did not have anything with him. Gusman said he needed to call the police so he would have a report for his company, and he returned to his truck to talk to his dispatcher about summoning the police. Appellant returned to his car and drove away. Gusman followed appellant. Appellant stopped after about two and a half miles, and Gusman stopped behind him. Appellant told Gusman, "look, I don't have anything. . . . And if you want, why don't you follow me to my house and I can give you some dinero." Gusman refused appellant's offer and insisted they wait for the police. A few minutes later, the police arrived. Wiley Police Corporal Larocca looked in appellant's car and saw about five empty beer bottles in the backseat and a half-full beer bottle in the cup holder in the front seat. The half-full beer bottle was cold to the touch and had "dew" on it. Larocca testified he "observed red, glossy eyes, slurred speech as he [appellant] was talking. I was — also, got a sniff of strong odor of alcoholic beverage coming from him." Larocca asked appellant if he had been drinking, and appellant said "he had two beers and he was working on his third." Larocca administered field sobriety tests, which appellant failed, and Larocca told appellant he was under arrest for DWI. Appellant then said, "bullshit, you can't prove I was behind the wheel," and he told Larocca the appropriate charge was public intoxication and not DWI. Larocca testified that in his opinion, appellant was intoxicated by alcohol. Appellant was arrested and taken to the police station. Sergeant Chris Howell testified appellant performed and failed sobriety tests in the intoxilyzer room. Appellant also admitted to Howell he was driving "that vehicle" and that he was in an accident. Investigator Michael Kunz testified he took appellant's fingerprints, and appellant's fingerprints match those in exhibits 6 and 7. Exhibit 6 contains a May 20, 1999 judgment of conviction of appellant for DWI, and exhibit 7 contains a February 26, 1988 judgment of conviction of appellant for DWI. VENUE
In his first point of error, appellant contends the State failed to prove venue was proper in Collin County. It is the defendant's burden to object to improper venue in the trial court. If the defendant does not object to venue, we presume venue was proper. Black v. State, 645 S.W.2d 789, 792 (Tex.Crim. App. 1983); Clark v. State, 558 S.W.2d 887, 891 (Tex.Crim. App. 1977); Grant v. State 33 S.W.3d 875, 878 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Appellant did not object to venue; accordingly, we presume venue was proper in Collin County. We overrule appellant's first point of error. SUFFICIENCY OF THE EVIDENCE
In his second through ninth points of error, appellant contends the evidence is legally and factually sufficient to support his conviction. When reviewing the legal sufficiency of the evidence, this Court must examine 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim. App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim. App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim. App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim. App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "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 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) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. See Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997). The reviewing court is not free to reweigh the evidence and set aside a guilty verdict merely because the reviewing judges feel that a different result is more reasonable. See Clewis, 922 S.W.2d at 135. Rather, the purpose of this analysis is to allow an appellate court, in the exercise of its fact jurisdiction, to prevent a manifestly unjust result. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. In his second and third points of error, appellant contends the evidence is legally and factually insufficient to show appellant was operating a motor vehicle because Howell and Larocca did not see appellant operating a motor vehicle. The record shows Gusman saw appellant operating a motor vehicle while intoxicated, and appellant admitted to Howell he was driving "that vehicle." We conclude the evidence is legally and factually sufficient to show appellant was operating a motor vehicle. We overrule appellant's second and third points of error. In his fourth and fifth points of error, appellant contends the evidence is legally and factually insufficient to show appellant was intoxicated while he was operating a motor vehicle. Gusman testified appellant was intoxicated moments after the accident and that appellant drove away from the accident scene a few minutes later. Larocca arrived on the scene five minutes later, and he testified appellant was intoxicated. Appellant told Larocca he had consumed two beers and was "working on his third." The half-consumed beer in the front seat of the car was still cool to the touch. We conclude the evidence is both legally and factually sufficient to show appellant was intoxicated while he was operating a motor vehicle. We overrule appellant's fourth and fifth points of error. In his sixth and seventh points of error, appellant contends the evidence is legally and factually insufficient to show he lacked the normal use of physical and mental faculties because he was intoxicated. The evidence shows appellant could not successfully complete the sobriety tests, his eyes were bloodshot, his speech was slurred, he smelled of alcohol, and he told the officers he had drunk two beers and was "working on his third." Appellant's inability to perform the field sobriety tests showed his physical faculties were impaired, and his inability to follow instructions and recite the alphabet showed his mental faculties were impaired. We conclude the evidence is legally and factually sufficient to show appellant's physical and mental faculties were impaired by alcohol. We overrule appellant's sixth and seventh points of error. In his eighth and ninth points of error, appellant contends the evidence is legally and factually insufficient to show he had two prior DWI convictions. Appellant does not explain in his brief why the evidence is insufficient. We hold these points of error are waived for insufficient briefing. See Tex. R. App. P. 38.1(h); Holberg v. State, 38 S.W.3d 137, 141 (Tex.Crim. App. 2000); Gallegos v. State, 76 S.W.3d 224, 228 (Tex.App.-Dallas 2002, pet. ref'd). We overrule appellant's eighth and ninth points of error. We affirm the trial court's judgment.