Opinion
No. 4-04-00799-CR
Delivered and Filed: November 23, 2005. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-8928, Honorable Pat Priest, Judge Presiding. Affirmed.
Sitting by assignment
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Andres Perez appeals his conviction for the felony offense of driving while intoxicated. In one issue, Perez argues that the evidence is factually insufficient to support his conviction. Finding no error, we affirm the trial court's judgment.
Standard of Review
In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and unjust, or the contrary evidence is so strong that the "beyond a reasonable doubt" standard of proof could not have been met. Russeau v. State, 171 S.W.3d 871, 878 (Tex.Crim.App. 2005); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A clearly wrong and unjust verdict occurs when the jury's finding "shocks the conscience" or "clearly demonstrates bias." Russeau, 171 S.W.3d at 878 (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997)).Discussion
The only testimony at trial came from Officer Joe Clayton McKinney, Jr., the arresting police officer. Officer McKinney testified that, on August 15, 2003, at a little after 8:00 p.m., while driving what he termed an "aggressive driving vehicle," similar to a normal police car but gray instead of white, he noticed a GMC pickup truck speeding. The driver of the pickup truck was Perez. Using a radar gun, Officer McKinney determined that Perez was traveling fifteen miles over the speed limit. Officer McKinney also observed Perez, in light to medium traffic, change lanes suddenly in one continuous motion across two lanes of travel without using a turn signal. When Officer McKinney activated his emergency lights, Perez pulled over to the shoulder in a rapid movement and applied his brakes, almost hitting the retaining wall as he came to a stop on the shoulder. According to Officer McKinney, it was a very unsafe maneuver. As soon as Perez stopped, he jumped out of his car and ran back to where Officer McKinney was in "a very provocative motion." Because Perez was standing in the traffic lane, Officer McKinney told him to get out of the traffic lane. Perez did not seem to realize that he was standing in the traffic lane, so Officer McKinney indicated to Perez a second time that he was in the traffic lane and needed to move out of the traffic lane. In Officer McKinney's experience, people get out of their vehicles and approach his vehicle either because they have expired inspection or registration stickers or they have something in their vehicle that they do not wish an officer to see. At that point, Officer McKinney guided Perez to a safer spot and went to check the stickers on his vehicle. Officer McKinney then observed, sitting on the passenger's side of the vehicle, an open container of beer with condensation on it. Officer McKinney went back to talk to Perez, asking Perez if he had been drinking. Perez responded he had had three to four beers, possibly six. Perez's eyes were bloodshot, and he had a distinct strong odor of alcohol on his breath. Although Officer McKinney did not ask Perez if he had any allergies, Perez never indicated that he suffered from allergies either. Perez's speech was distinctly slurred, but not as bad as Officer McKinney has heard from other intoxicated drivers. According to Officer McKinney, Perez was leaning on his vehicle and having trouble maintaining his balance. Officer McKinney did not conduct field sobriety tests because they were in an unsafe area. Throughout his contact with Perez, although Perez was not falling over to the degree Officer McKinney has seen with other intoxicated drivers, Officer McKinney did observe an uncertain staggering kind of motion. Officer McKinney placed Perez in handcuffs and in the back of the patrol vehicle. He impounded and inventoried the vehicle. The beer he found inside the vehicle was cold and open. Officer McKinney then drove Perez to the police station. While they rode in Officer McKinney's vehicle, Perez made several rambling statements, but the one that stood out to Officer McKinney the most was, "Yeah, I know I'm wrong. I just can't seem to get it right." After parking at the police station, they stepped out of the car, and Officer McKinney noticed that, as they stepped down onto a very slight incline, Perez rocked back, was uncertain on his feet, and took a moment to regain his composure or his balance. Although Perez had his hands handcuffed behind his back, the handcuffs did not contribute to the way he walked. Perez and Officer McKinney had to walk between some police cars, and Officer McKinney had to guide Perez through because Perez was staggering and uncertain as he turned and followed Officer McKinney through. When they got into the police station, Officer McKinney read to Perez the DIC 24 Form, which informs the person detained about the consequences of providing or not providing a breath specimen. During that time, Perez "was being politely non-compliant." After Perez refused to allow the taking of a breath specimen, Officer McKinney took him to a DWI video room where a videotape was made thirty-seven minutes after the traffic stop. According to Officer McKinney, Perez's speech is not as slurred on the videotape as it was earlier. The videotape was admitted into evidence. In response to questioning regarding whether he had formed an opinion as to whether or not Perez had lost the normal use of his mental and/or physical faculties, Officer McKinney testified that in his opinion, Perez "was intoxicated." And, he believed the intoxication was caused by alcohol:Q. And why do you believe alcohol?
A. Because of the strong smell of alcoholic beverages on his breath, point of contact, and also through his subsequent actions after contact.
Q. Officer, what were some of the actions that you observed that you believe go to his mental faculties?
A. Standing in the traffic lane, not aware of how to get out of the traffic lane, even after being told twice to do so; his driving behaviors before I initially contacted him personally, face to face; then, also, bloodshot eyes and the smell of alcohol on his breath.
Q. What — what physical faculties did you observe that caused you concern?
A. I observed his hesitance in complying with my instructions at the immediate point of traffic stop, his running out of the vehicle, his stumbling at 401 South Frio.
Q. While on scene, did you also observe him using his truck for support?
A. Yes, sir, I did. He leaned against the back right corner of his truck.
Q. On scene — I believe you previously testified, but on scene what did you observe as it relates to his speech?
A. That he was hesitant in speaking, uncertain about what he was trying to say. Also that he was — he did slur his speech.Perez was charged with driving while intoxicated under section 49.01(2)(A) of the Texas Penal Code, which defines intoxication as "not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body." He pled true to his prior DWI convictions. After a trial, he was found guilty and sentenced to six years imprisonment. According to Perez, his conviction was manifestly unjust for the following reasons: the evidence used to show his guilt was also consistent with his innocence; no field sobriety tests were performed; Officer McKinney never testified specifically that Perez had lost the normal use of his mental or physical faculties, and McKinney's testimony was discredited because Perez's appearance on the video drastically differed from Officer McKinney's description of Perez's demeanor at the time of the stop. After reviewing the evidence in this case, however, we cannot say the evidence was factually insufficient to support the verdict. Officer McKinney testified that he observed the following: (1) Perez's unsafe driving behavior; (2) Perez's inability to understand he was standing in the traffic lane after being told he was standing in the traffic lane; (3) a cold open container of beer with condensation on it in the vehicle; (4) Perez's admission that he had between three and six beers; (5) a strong smell of alcohol on his breath; (6) slurred speech; (7) hesitancy in speaking; and (8) unbalanced, staggering and uncertain movements. After reviewing this evidence in a neutral light, the jury could have found beyond a reasonable doubt that Perez was intoxicated. With regard to Officer McKinney's failure to perform field sobriety tests, Officer McKinney was not required to do such. Instead, he was able to testify about his observations of Perez's actions and his opinion that Perez was intoxicated. And, a review of Officer McKinney's testimony shows that, although Officer McKinney did not use the words in the statute that Perez had lost the normal use of his mental and/or physical faculties, he nevertheless testified that Perez was intoxicated and that alcohol was the cause of his intoxication. Further, he testified to those matters, as set forth above, that he observed affected Perez's mental and physical faculties. This testimony is sufficient. As to the videotape, we cannot say that the evidence contained in the videotape is "so strong that the `beyond a reasonable doubt' standard of proof could not have been met." See Russeau, 171 S.W.3d at 878; see also Perkins v. State, 19 S.W.3d 854, 857-58 (Tex.App.-Waco 2000, pet. ref'd). Considering all of the evidence in a neutral light, the jury was rationally justified in finding Perez's guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484. We affirm the trial court's judgment.