No. 4-05-00214-CR
Delivered and Filed: March 22, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 8, Bexar County, Texas, Trial Court No. 884010, Honorable Karen Crouch, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
Opinion by: ALMA L. LÓPEZ, Chief Justice.
Alexander Johnson appeals his conviction for driving while intoxicated (DWI). Johnson asserts that the evidence is legally and factually insufficient to support the jury's verdict and that the trial court erred in overruling his objection to the lack of probable cause and reasonable suspicion for the traffic stop and the admission of evidence resulting from the stop. We affirm the trial court's judgment.
Background
In the early morning of April 24, 2004, Johnson was driving home from an annual local festival held in downtown San Antonio when he was pulled over by San Antonio Police Officer Scott Foulke. Foulke testified that he heard a loud noise coming from Johnson's van, and upon closer inspection realized that the left front wheel of Johnson's van was rubbing against the bumper. Concerned that Johnson's tire would blow out and cause an accident, Foulke decided to pull Johnson over. When Johnson exited his vehicle, Foulke noticed a strong odor of alcohol on Johnson's breath. When asked if he had been drinking, Johnson admitted to having a few beers at the festival. Inside Johnson's vehicle, Foulke found twelve plastic cups bearing the festival's emblem, along with a "fresh" beer bottle. Johnson's female passenger, who was later arrested for public intoxication, admitted to drinking six or seven beers. Foulke asked Johnson how he had damaged his vehicle and where he was coming from, but his responses did not "add up" to Foulke. Foulke then administered several field sobriety tests to Johnson. Although initially reluctant to do a "walking test or anything where he was going to have to stand on one leg," Johnson did not indicate that he had any health problems that would prevent him from performing the tests. On the horizontal gaze nystagmus test (HGN), Johnson exhibited six clues. At trial, Foulke testified that the National Highway Traffic Safety Administration requires four clues to indicate intoxication. On the alphabet recitation test, which is not a standard field sobriety test, the subject is asked to recite the alphabet from A to Z. Johnson, according to Foulke's testimony, correctly recited letters A through V, followed by "Y, W, F, and Z." Foulke next administered the Romberg balancing test, another alternative test. Standing with his feet together and hands to his side, Johnson was asked to tilt his head back, close his eyes, and estimate the passage of 30 seconds. Johnson estimated 26 seconds, and Foulke noticed a slight circular swaying of his body. On the walk and turn test, Johnson failed to walk heel to toe as instructed. Foulke observed three clues on this test, which requires two to indicate intoxication. Finally, on the finger count test, Johnson completed two and one-half repetitions, until he realized that he was counting improperly and stopped. After determining that Johnson had failed the tests, Foulke concluded that Johnson was under the influence of alcohol and arrested him for DWI. The stop was recorded by an onboard camera in Foulke's patrol car; however, due to a microphone failure, the sound outside of the car was not recorded. At the police station, Johnson refused to produce a sample for an intoxilyzer breath test. Sufficiency of the Evidence
In his first and second issues, Johnson complains that the evidence is legally and factually insufficient to sustain his conviction for DWI. In reviewing the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict in order 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); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). Under this standard, the trier of fact has the responsibility of resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. When conducting a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). In reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways the evidence may be factually insufficient. First, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, when there is evidence both supporting and contradicting the verdict, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. "This standard acknowledges that evidence of guilt can `preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Id. at 485. When performing a factual sufficiency review, we give deference to the jury's determinations, including determinations involving the credibility and demeanor of the witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We may not substitute our judgment for that of the jury's. Zuniga, 144 S.W.3d at 482. A person commits the offense of driving while intoxicated if that person is intoxicated while operating a motor vehicle in a public place. See Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). Under the Penal Code, "intoxication" means "not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body." Id. § 49.01(2)(A). Johnson concedes that he was operating a motor vehicle in a public place, but argues that the State did not prove beyond a reasonable doubt that he was actually intoxicated. The evidence at trial showed that Foulke pulled Johnson over because the noise produced by the rubbing of his front tire against the bumper was loud enough to be heard in his patrol car with the windows up, and he was concerned that the tire would eventually blow out. Johnson was initially unable to produce his driver's license, and instead presented a credit card. Johnson's response to where he had been coming from was illogical because it did not match his current geographic location. Foulke smelled alcohol on Johnson's breath, who admitted to drinking a few beers, and found twelve festival cups and a "fresh" beer bottle in Johnson's vehicle. Based on Johnson's performance on the field sobriety tests, Foulke formed the opinion that Johnson's mental and physical faculties were impaired due to the introduction of alcohol into his system. Foulke testified that even intoxicated persons can be polite, and they do not have to be staggering, falling down, or throwing up to have lost the normal use of their physical or mental faculties. Viewing the evidence in a light most favorable to the verdict, we conclude that it is legally sufficient to sustain Johnson's conviction for DWI. In his factual sufficiency challenge, Johnson asserts that the evidence contrary to the jury's verdict was so strong that the beyond-a-reasonable doubt standard could not have been met. Specifically, Johnson points to evidence that: (1) he did not commit a traffic offense and drove consistently with traffic; (2) the rainy weather was not conducive to performing field sobriety tests; (3) his performance on the walk and turn test was described by Foulke as "normal;" (4) Foulke stated that there are over 200 types of nystagmus, many of which are not induced by alcohol; (5) his performance on the alphabet recitation test may have been affected by nervousness; (6) his performance on the balancing test was described by Foulke as "pretty good;" (7) his speech was described as "fair," not slurred; and (8) he was cooperative with the arresting officer, who described him as "perfect in every mannerism." After viewing all of the evidence, we find that the contrary evidence does not so overwhelmingly outweigh the evidence supporting guilt as to render the conviction clearly wrong and manifestly unjust. Because we conclude that the evidence is both legally and factually sufficient to support the jury's verdict, Johnson's issues are overruled. Objection To Admission of Evidence
In his third issue, Johnson complains that the trial court erred in overruling his objection to the probable cause and reasonable suspicion for the traffic stop and allowing evidence gathered after the stop to be presented to the jury. A trial court's determination on the admissibility of evidence is reviewed for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). The State's sole witness, Officer Foulke, testified to the stop of Johnson's vehicle, his observations of and interaction with Johnson, including the administration of field sobriety tests and Johnson's refusal to take an intoxilyzer test, all without objection from defense counsel. Johnson did not object until the State offered into evidence the video of the stop. The State contends that because Johnson did not make a timely objection to the introduction of the video, he failed to preserve the error. We agree. Under the Texas Rules of Appellate Procedure, a party complaining on appeal must show that a timely objection was made to the trial court. Tex.R.App.P. 33.1 (a)(1). An objection should be made as soon as the ground for objection becomes apparent. See Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997). Furthermore, an error in the admission of evidence is cured where the same evidence comes in elsewhere without objection. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). Here, Johnson failed to preserve error by failing to object to Foulke's testimony regarding the events that occurred after the initial traffic stop. Accordingly, we conclude that the trial court did not abuse its discretion in admitting evidence of the traffic stop. Issue three is overruled. Conclusion
The judgment of the trial court is affirmed.