Opinion
No. 05-04-00153-CR
Opinion Filed August 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court Number 4, Dallas County, Texas, Trial Court Cause No. MB02-31941-E. Affirmed.
Before Justices FITZGERALD, RICHTER, and LANG.
OPINION
Sid McDonald appeals his conviction for driving while intoxicated (DWI). Appellant argues that a proper predicate was not established to show that the testifying officer was qualified to give an opinion regarding his intoxication. We affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the night of April 22, 2002, employees of Cheddar's Restaurant reported an intoxicated man, who refused their offer to call a taxicab for him, in the process of leaving the restaurant. Officer Bardwell of the Grand Prairie Police Department received the dispatch and drove to Cheddar's. When Officer Bardwell arrived at Cheddar's he contacted the manager of the restaurant, who gave him a description of the car, including the license plate number and color, and its general direction. While providing the description, the manager of the restaurant saw the car as it was moving through the parking lot and pointed it out to the officer. Officer Bardwell drove to the location of the car. He observed that the car had the same license plate number that was given to him by the manager of Cheddar's. Officer Bardwell also observed the car backing up or trying to back into a parking spot. Officer Bardwell approached appellant and observed that appellant exhibited the standard signs of intoxication including glassy eyes, slurred speech, and the odor of alcohol. Officer Bardwell asked appellant to exit his car, and when appellant complied, he was unsteady, staggered, and swayed. Officer Bardwell administered an array of field sobriety tests, which were videotaped by an in-car video. He administered field sobriety tests standardized by the National Highway Transportation Safety Administration which included the horizontal gaze nystagmus test (HGN); the one-leg stand; and the walk-and-turn test. Also, he administered additional sobriety tests: the recitation of the alphabet; the touch-the-nose test; and the lean-the-head-back-and-close-the-eyes test. During the field sobriety tests, appellant told the officer that he was headed home and that he had left Cheddar's after having six beers. Based on his observations during the field sobriety tests, Officer Bardwell formed the opinion that appellant was intoxicated. Appellant was arrested and transported to the jail where he was booked in and taken to the DWI-room. Once in the DWI-room, appellant was read his Miranda rights and the DWI statutory warning. Afterward, the field sobriety tests were re-administered. Officer Bardwell asked appellant to take a breath or intoxilyzer test, but he refused. The events in the DWI-room were also videotaped. Appellant was charged by information with DWI. Officer Bardwell was the only witness to testify at the trial. At the conclusion of the trial, the jury found the appellant guilty of DWI. Appellant was sentenced to be confined for 365 days and was fined $1,000. The trial court probated appellant's confinement and ordered that he be placed under community supervision for 24 months. Appellant appeals his conviction for DWI.II. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
In his sole issue on appeal, appellant claims that a proper predicate was not established to show that the testifying officer was qualified to give an opinion regarding his intoxication. This argument presents two possible and separate appellate issues: (1) the sufficiency of the evidence; and (2) evidentiary error. See Moff v. State, 131 S.W.3d 485, 490 (Tex.Crim.App. 2004). Because appellant did not object at trial, the State argues that the issue is waived. However, we cannot ignore the separate issue of sufficiency of the evidence. See id. Accordingly, we will review appellant's sole issue on appeal as a claim that the evidence is insufficient to support the verdict. See id.A. Standards of Review
Differences exist between a factual sufficiency and legal sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Further, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id.1. Legal Sufficiency of the Evidence
The legal sufficiency of the evidence will be viewed 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. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). Cf. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency of the evidence will be viewed in the light most favorable to the prosecution). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42, 109 S.Ct. 285, 291, 102 L.Ed.2d 265 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).2. Factual Sufficiency of the Evidence
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim. App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation since the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim. App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 2004 WL 840786, at *4. See Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim. App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based upon the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 2004 WL 840786, at *7. Cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.B. Applicable Law
A person commits the offense of DWI if he is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04 (Vernon 2003). Intoxicated means "not having normal use of mental or physical faculties by reason of the introduction of alcohol . . ." Id. § 49.01(2)(A). The uncorroborated testimony of an arresting officer is sufficient to prove the element of intoxication. Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.-Dallas 1991, pet. ref'd) (citing Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979) and Watkins v. State, 741 S.W.2d 546, 549 (Tex. App.-Dallas 1987, pet. ref'd)). Evidence of intoxication may include, inter alia: (1) slurred speech; (2) bloodshot eyes; (3) the odor of alcohol on the person; (4) unsteady balance; (5) a staggered gait; and (6) the odor of alcohol on the breath. Cotton v. State, 686 S.W.2d 140, 149 n. 3 (Tex.Crim.App. 1985). Texas Rule of Evidence 702 addresses the admissibility of expert testimony and states:If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.Tex. R. Evid. 702. The HGN is sufficiently reliable pursuant to Texas Rule of Evidence 702. Emerson v. State, 880 S.W.2d 759, 768 (Tex.Crim.App. 1994). Also, the technique employed in the HGN test is reliable pursuant to Rule 702. Id. For testimony concerning a defendant's performance on the HGN test to be admissible, it must be shown that the witness testifying is qualified as an expert concerning its administration and technique. Id. at 769. A witness is qualified as an expert concerning the administration and technique of the HGN test if he has received practitioner certification by the State of Texas. Id.