No. 05-07-01336-CR
Opinion Filed July 15, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court No. 3, Dallas County, Texas, Trial Court Cause No. MB05-20857C.
Before Justices FITZGERALD, RICHTER, and LANG-MIERS.
Opinion By Justice FITZGERALD.
A jury convicted appellant of driving while intoxicated with an open container. The trial court assessed punishment at 180 days' confinment in the county jail, probated for eighteen months, and a $900 fine. In a single issue, appellant contends the evidence is legally insufficient to support the conviction. We affirm.
Background
On July 31, 2005, DFW Airport police officer David Hergenrader observed a Ford F-250 truck following another vehicle too closely, then make an evasive lane change to avoid striking the other vehicle. Hergenrader stopped the truck. Appellant was driving and his wife was in the front passenger seat. Hergenrader testified he smelled a strong odor of an alcoholic beverage on appellant's breath, and noticed appellant had bloodshot and "glassy" eyes. When Hergenrader asked appellant if he had anything to drink, appellant said he had "a couple of beers." Hergenrader, who is certified to give standardized field sobriety tests, administered several tests to appellant, including the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand tests. Appellant exhibited six out of six clues on the HGN, five out of eight clues on the walk-and-turn, and one out of four clues on the one-leg stand. Hergenrader believed appellant had lost the normal use of his mental and physical faculties due to alcohol consumption. He arrested appellant. When Hergenrader searched appellant's vehicle, he found one open can of beer and an ice cooler with two unopened cans of beer in the cab of the truck, and over twenty open and empty beer cans in the bed of the truck. He did not know how long the cans had been in the truck bed. Hergenrader transported appellant to headquarters, where Hergenrader interviewed appellant. A videotape showing appellant performing the field sobriety tests and being interviewed at headquarters was played to the jury. Hergenrader testified that during the interview, appellant said he had drunk seven to eight beers. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place. See Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). "Intoxicated" means 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, or a combination of two or more of those substances or any other substance into the body. See Id. § 49.01(2). Among other things, evidence of intoxication may include: (1) slurred speech; (2) bloodshot eyes; (3) the odor of alcohol on the person or on the breath; (4) an unsteady balance; and (5) a staggered gait. See Cotton v. State, 686 S.W.2d 140, 142 n. 3 (Tex.Crim.App. 1985). The uncorroborated testimony of an arresting officer is sufficient to prove the element of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979); Watkins v. State, 741 S.W.2d 546, 549 (Tex.App.-Dallas 1987, pet. ref'd). Discussion
In his first point of error, appellant argues there was no evidence Hergenrader was qualified to correlate driving with field sobriety tests or that the tests were similar to operating a vehicle. Appellant asserts the trial court allowed Hergenrader to give an opinion on the ultimate issue of intoxication when no proper predicate was laid showing a correlation between the tests given and intoxication. The State responds that appellant failed to preserve his complaint regarding the proper predicate for expert testimony because he did not object to the admission of such testimony at trial, and the evidence is sufficient to support appellant's DWI conviction. Appellant did not complain about any of Hergenrader's testimony or the reliability of the field sobriety tests at trial, and has not preserved this complaint. See Tex. R. App. P. 33.1(a)(1). Moreover, in reviewing the sufficiency of the evidence, we consider all of the evidence, whether properly or improperly admitted. See Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004). There was evidence that appellant admitted consuming seven or eight beers, and that appellant had an open can of beer in the cab of the truck when he was pulled over. Hergenrader testified appellant had bloodshot eyes, and his breath smelled of an alcoholic beverage. Hergenrader, who is certified in administering field sobriety tests, determined appellant did not have the normal use of his mental and physical faculties due to alcohol consumption because appellant did not perform the field sobriety tests satisfactorily. See Watkins, 741 S.W.2d at 549. The videotape shows appellant had difficulty with some of the tests. Viewed under the proper standard, we conclude the evidence is legally sufficient to support appellant's conviction for driving while intoxicated. See Lane, 151 S.W.3d at 191-92; Cotton, 686 S.W.2d at 142. We resolve appellant's sole issue against him. We affirm the trial court's judgment.