Opinion
NO. 01-15-00303-CR
03-29-2016
CALVIN JOE MCCOLLUM A/K/A GARY LAVERN WYMORE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court Galveston County, Texas
Trial Court Case No. 14CR1334
MEMORANDUM OPINION
A jury convicted appellant, Calvin Joe McCollum, a/k/a Gary Lavern Wymore, of the third-degree felony offense of driving while intoxicated—third offense. After appellant pleaded true to the allegations in two enhancement paragraphs, the trial court assessed his punishment at thirty years' confinement. In his sole issue on appeal, appellant contends that the State failed to present sufficient evidence that he was intoxicated.
See TEX. PENAL CODE ANN. § 49.04(a) (Vernon Supp. 2015) (stating elements of driving while intoxicated); id. § 49.09(b) (Vernon Supp. 2015) (stating that driving while intoxicated is third-degree felony if person has previously been convicted on two occasions of offense relating to operating motor vehicle while intoxicated).
We affirm.
Background
On April 2, 2014, Hitchcock Police Department Officer C. Santiago and the officer supervising his training, Sergeant T. White, were on patrol around 6:30 in the evening when they received a dispatch concerning a reckless driver. The dispatcher notified the officers that there was a gray van with out-of-state license plates and a tire attached to the top that was driving erratically and heading northbound on F.M. 2004 toward Highway 6. Shortly thereafter, the officers saw the van heading towards them, and Officer Santiago turned around and followed the van. Officer Santiago witnessed the driver, later identified as appellant, fail to maintain a single lane and fail to signal a lane change. Officer Santiago then turned on his emergency lights, and appellant pulled over after the intersection of F.M. 2004 and Highway 6.
Officer Santiago testified that this incident occurred during his first month as a police officer. Although he had made several traffic stops by this point in time, this was his first DWI investigation.
Immediately after pulling over, appellant stepped out of the van before the officers instructed him to do so. Appellant appeared to reach for his waistband, and both officers advised appellant to keep his hands visible. Because appellant was almost standing in a lane of traffic, the officers also instructed him to move toward the rear of his vehicle. While appellant walked toward them, Officer Santiago observed that appellant "was quite uneasy on his feet and seemed to be taking very long strides." Officer Santiago also testified that appellant was "swaying side to side a bit" and that he "noticed a very strong odor of alcohol[ic] beverage admitting from [appellant's] breath and person." Additionally, appellant's speech was slurred, he "spoke as if he had a thick tongue," and his eyes were bloodshot and glassy. A section on the front of appellant's pants, near his groin and thighs, was "damp or moist," although the officers never ascertained what had caused this wetness. Appellant handed the officers an expired Kentucky driver's license with the name of Gary Wymore, which the officers later determined was not appellant's true name.
Sergeant White conducted appellant's standardized field sobriety tests. Prior to conducting the tests, Sergeant White asked if appellant had any medical issues, and appellant did not indicate that he had any such concerns. Sergeant White did not perform the horizontal gaze nystagmus test because there was a mild mist falling at the time, and he did not want the mist to interfere with his observations. Appellant completed the walk-and-turn test, and he demonstrated four clues of intoxication on that test. Appellant started to perform the one-leg-stand test, but he then told Sergeant White that he had a "bad back" and could not complete the test. Sergeant White came to the conclusion that appellant was intoxicated.
Officer Santiago testified that at the end of these tests, the officers gave appellant the opportunity to provide a breath specimen using their portable breath test machine, which is primarily used as an "investigative tool" and is not as accurate as the Intoxilyzer machine located at the police station. Appellant agreed to give a breath specimen, but he "would not wrap his lips completely around the portable Breathalyzer and [he took] very shallow breaths as if to evade or actually blow into the machine." Officer Santiago testified that appellant acted like he was blowing into the machine, "but he never did." Throughout this encounter, appellant was very unsteady on his feet and slurring his speech, and he kept trying to explain to Officer Santiago that he was en route to his friend's house in Freeport and that he needed to see her because she had had a stroke. Appellant was never able to identify this friend or her address, he told the officers that EMS had not been called for his friend, and Officer Santiago testified that appellant was traveling in the opposite direction from Freeport. Sergeant White testified that appellant kept repeating himself and that he "really [was] not making any sense." The encounter was recorded on the police car's video camera.
The officers placed appellant under arrest for suspicion of driving while intoxicated ("DWI") and conducted an inventory search of his vehicle. Officer Santiago observed that appellant's vehicle was extremely dirty, with car parts, clothes, and trash strewn all over the floor. Officer Santiago smelled the "extremely strong odor" of an alcoholic beverage coming from the center console of the vehicle and behind the driver's seat, and Santiago testified that it smelled as if appellant "had just recently spilt a beer on the floor." Officer Santiago found "an empty plastic cup that had the smell of alcoholic beverage in it" and that had a small amount of liquid in it. The officers conveyed appellant to the police station. Appellant declined to provide a blood sample or a breath sample via the Intoxilyzer at the police station.
Sergeant White testified that if a check of an individual's criminal history reveals multiple past convictions for driving while intoxicated, the officers are required to take the person to the hospital for a mandatory blood draw. If an individual provides a false name to officers, the officers would be unable to look up the individual's true criminal history. --------
The jury found appellant guilty of the offense of DWI—third or more. After appellant pleaded true to the allegations in two enhancement paragraphs—one for felony DWI and one for felony tampering with evidence—the trial court assessed his punishment at thirty years' confinement. This appeal followed.
Sufficiency of the Evidence
In his sole issue, appellant contends that the State failed to present sufficient evidence that he was intoxicated.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only standard to use when determining sufficiency of evidence). The jurors are the exclusive judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge of credibility, may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd) (stating jury can choose to disbelieve witness even when witness's testimony is uncontradicted).
We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the jury's credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination."). Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Driving While Intoxicated
To establish that appellant committed the offense of DWI, the State had to prove that appellant operated a motor vehicle in a public place while intoxicated and that he had twice been previously convicted of DWI. See TEX. PENAL CODE ANN. § 49.04(a) (Vernon Supp. 2015) (stating elements of driving while intoxicated); id. § 49.09(b) (Vernon Supp. 2015) (enhancing DWI offense to third-degree felony if defendant has twice been previously convicted of offense relating to operation of motor vehicle while intoxicated). The Penal Code defines "intoxicated" as "not having 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 two or more of those substances, or any other substance into the body" or "having an alcohol concentration of 0.08 or more." Id. § 49.01(2) (Vernon 2011).
The Court of Criminal Appeals has identified several characteristics that constitute evidence of a defendant's intoxication, including slurred speech, bloodshot or glassy eyes, unsteady balance, a "staggering gait," and the odor of alcohol on the defendant's person or his breath. See Cotton v. State, 686 S.W.2d 140, 142-43 & 142 n.3 (Tex. Crim. App. 1985); Zill v. State, 355 S.W.3d 778, 785 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) ("Other evidence that would logically raise an inference that the defendant was intoxicated at the time of driving . . . includes, inter alia, erratic driving, post-driving behavior such as stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, bloodshot eyes, any admissions by the defendant concerning what, when, and how much he had been drinking—in short, any and all of the usual indicia of intoxication."). A police officer's testimony regarding the defendant's behavior and the officer's opinion that the defendant was intoxicated provides sufficient support to uphold a jury verdict. Zill, 355 S.W.3d at 785-86; see also Brister v. State, 414 S.W.3d 336, 341 (Tex. App.—Beaumont 2013) ("When based upon facts an experienced officer observes and then describes to the jury, an officer's opinion concerning a person's intoxication provides sufficient evidence of intoxication."), aff'd, 449 S.W.3d 490 (Tex. Crim. App. 2014); Singleton v. State, 91 S.W.3d 342, 351 (Tex. App.—Texarkana 2002, no pet.) (holding that trial court did not err in allowing arresting officer to offer his lay opinion that defendant was intoxicated); Henderson, 29 S.W.3d at 622 ("The testimony of a police officer that an individual is intoxicated is probative evidence of intoxication.").
A defendant's poor performance on standardized field sobriety tests is also evidence of intoxication. Zill, 355 S.W.3d at 786; see also Kirsch, 306 S.W.3d at 745 (stating that "inability to perform field sobriety tests or follow directions" is indicative of intoxication); Finley v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991, pet. ref'd) ("Texas courts consistently uphold DWI convictions based upon the opinion testimony of police officers who observed the defendant's unsatisfactory performance in field sobriety tests."). The jury may also consider as evidence of intoxication the defendant's refusal to submit a blood or breath specimen. Zill, 355 S.W.3d at 786; see TEX. TRANSP. CODE ANN. § 724.061 (Vernon 2011) ("A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial."); see also Bartlett, 270 S.W.3d at 153 ("Evidence of the appellant's refusal to submit to a breath test is relevant for precisely the reason that the trial court identified in the contested jury instruction, namely, that it tends to show a consciousness of guilt on his part."); Russell v. State, 290 S.W.3d 387, 397 (Tex. App.—Beaumont 2009, no pet.) ("In addition, the jury in this case could have inferred from Russell's refusal to take a breath test that Russell believed he was intoxicated."). Furthermore, providing false identification to officers also indicates a consciousness of guilt. See Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992) ("[T]he fact that appellant presented false identification to Officer Carlson when he was pulled over indicates a 'consciousness of guilt' and an awareness that he needed to conceal his identity from law enforcement officials.").
Here, Officer Santiago and Sergeant White both testified that, while on patrol, they received a dispatch concerning a reckless driver. Both officers observed the vehicle, driven by appellant, and concluded that appellant, who failed to signal a lane change and to maintain a single lane, was driving erratically. Appellant got out of his vehicle immediately after pulling over, which both officers testified was unusual, and approached the officers. Appellant appeared "uneasy" on his feet, he took very large strides, and he was swaying from side to side. Both officers testified that they could smell the "very strong" odor of an alcoholic beverage on appellant's "breath and person." When he spoke, appellant's speech was slurred, and he spoke "as if he had a thick tongue." Appellant's eyes were bloodshot and glassy, and he had a damp spot on the front of his pants near his groin. See Kirsch, 306 S.W.3d at 745 (listing common indicators of intoxication); Cotton, 686 S.W.2d at 142-43, 142 n.3 (same).
Additionally, although appellant told the officers that he was going to Freeport to see a friend who had just had a stroke, he also told the officers that EMS had not been called for his friend, he could not tell the officers his friend's name or where she lived, and both officers testified that appellant was traveling in the opposite direction from Freeport. Sergeant White testified that appellant kept repeating himself and that he was not really "making any sense." Appellant presented the officers with an expired, out-of-state driver's license with a different name, which Sergeant White testified is commonly done by individuals to avoid a mandatory blood draw upon officers' checking the individual's criminal history and discovering prior DWI convictions. See Felder, 848 S.W.2d at 98 (stating that presentation of false identification to officer indicates consciousness of guilt). Appellant demonstrated four clues of intoxication on the walk-and-turn sobriety test, and he claimed that a "bad back" prevented him from completing the one-leg-stand test, although he did not mention his back troubles until he started performing the test, despite Sergeant White's asking him if he had any medical concerns before starting the field sobriety tests.
Furthermore, appellant agreed to provide a breath specimen using the officers' portable breath test machine, but he took "very shallow breaths" and never actually blew into the machine. Appellant refused to provide either a blood specimen or a breath specimen at the police station. See TEX. TRANSP. CODE ANN. § 724.061; Zill, 355 S.W.3d at 786 (stating that jury can consider defendant's refusal to submit blood or breath specimen as evidence of intoxication). During the inventory search of appellant's vehicle, the officers again noticed a strong smell of an alcoholic beverage near the center console and behind the driver's seat, and Officer Santiago testified that there was a mostly-empty plastic cup in the center console that still had a small amount of liquid in it and that it smelled as if appellant "had just recently spilt a beer on the floor" of his van.
On appeal, appellant focuses on the fact that neither officer had significant experience in administering field sobriety tests or conducting DWI investigations. But appellant's poor performance on the walk-and-turn test was only one factor that the officers considered in concluding that appellant was intoxicated. When asked what he considered in determining that appellant was intoxicated, Sergeant White testified:
The fact that there [were] four clues in the walk and turn. The walk and turn, he couldn't complete the one leg stand test after I demonstrated it. And the fact that his subject did not add up—or his story didn't add up to where he was going. He couldn't provide a name or an exact location of where that subject might be and whether we could provide medical attention to someone that needs it. And he kept repeating himself. The fact that [he had] slurred speech. He spoke with a thick tongue. The odor of alcohol was present and [he] swayed while walking.All of these facts constitute recognized evidence of intoxication. See, e.g., Kirsch, 306 S.W.3d at 745; Cotton, 686 S.W.2d at 142-43 & 142 n.3; Zill, 355 S.W.3d at 785-86.
Appellant also argues that any swaying or an uneven gait on his part are also consistent with his statement to Sergeant White that he had a "bad back," and he further argues that, because neither officer was familiar with his speech, they could not say that his speech on this occasion was any different from normal. As appellant acknowledges, however, the jury viewed the video recording of the officers' encounter with appellant, and the jury was entitled to believe the officers' testimony that appellant's behavior during the traffic stop was the result of intoxication, not a prior medical condition. See Zill, 355 S.W.3d at 787 ("Although appellant's behavior during the traffic stop may have been consistent with a head injury, her behavior also constitutes recognized evidence of intoxication. The jury was fully entitled to believe Trooper Petrillo's testimony that appellant was intoxicated and disbelieve appellant's alternative explanation that her prior head injuries caused her behavior."); Russell, 290 S.W.3d at 396-98 (finding evidence sufficient to support jury's conviction for DWI, despite defendant's contention that his behavior was result of diabetic episode).
Viewing the evidence in the light most favorable to the verdict, we hold that the evidence was sufficient for a rational fact finder to have found beyond a reasonable doubt that appellant was intoxicated at the time he was stopped by the officers.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Chief Justice Radack and Justices Keyes and Higley. Do not publish. TEX. R. APP. P. 47.2(b).