Opinion
No. 09-03-391 CR
Submitted on April 27, 2006.
Opinion Delivered July 26, 2006. DO NOT PUBLISH.
On Appeal from the County Court at Law No. 2, Jefferson County, Texas, Trial Cause No. 209398. Affirmed.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
A jury convicted Michael Albert Perrissi of misdemeanor driving while intoxicated. The trial court assessed punishment at ninety days in jail, fined Perrissi $300, suspended the imposition of the sentence, and placed him on probation for one year. In this appeal, Perrissi challenges the sufficiency of the evidence to support the conviction, and also asserts the prosecutor made an improper jury argument. We affirm the judgment of the trial court.
The Evidence
Deputy Gary Spencer testified he observed a vehicle pass him "on the outside lane, and when it passed [he] noticed that it was drifting from its travel lane over the painted line divider into the other traffic lane." He followed the vehicle three or four blocks. The vehicle stopped in the parking lot of a club. The deputy pulled up behind it and activated the overhead lights. Perrissi stepped out of his vehicle. Spencer asked for Perrissi's driver's license. The deputy testified Perrissi began to "kind of fumble through his wallet" and handed the deputy a couple of credit cards. Spencer described Perrissi as follows:[H]e had a sway. He was swaying back and forth, seemed very unsteady, his balance was unsteady. While talking to him I detected an odor of alcohol on his breath. I also noted that his . . . words were kind of slurred together and what I would call thick-tongued.Spencer conducted field sobriety tests. On the "walk-and-turn test," Perrissi's "footing was unsure. He missed a step. He would step off, stumble a little bit. . . ." "[H]is balance was very poor." Spencer testified Perrissi was unable to satisfactorily complete the test. During the "one-leg counting stand" test, the deputy "observed that [Perrissi's] balance was unsteady, his coordination seemed to be impaired, he was having trouble completing the test." Deputy Spencer attempted to perform a "nystagmus gaze test" but Perrissi was unable to complete the test because he could not follow Spencer's instructions. The deputy testified that during the nystagmus gaze test, the person must keep his head straight and not move it from side-to-side. However, as described by Spencer, Perrissi "continued to move his head from side to side, which made it hard for [Spencer] to perform the test accurately." Further, Perrissi "would also look down at the ground, which made it hard to perform the test." Based on Perrissi's driving performance, the field sobriety tests, Deputy Spencer's training and experience, and his belief that Perrissi was intoxicated, the deputy arrested Perrissi and took him to jail. Perrissi testified he had been to Austin with his son and returned the boy to his mother in Beaumont at 6:00 p.m. Perrissi testified he never drinks when he is with his son. Perrissi said he then went to visit a friend for a few hours but did not drink; he next stopped at the Waffle House and then went to the club. Perrissi denied giving the officer credit cards instead of a driver's license and testified he had no trouble walking or standing. As for the alcohol smell, he testified he "hadn't had anything to drink." Except for the ABC test, Perrissi testified he did not perform any sobriety tests. He indicated he refused to take the breath test because he does not believe in the machines. Finally, he explained he always sways, because he cannot stand "just perfectly still." Perrissi denied he was driving while intoxicated.
The Sufficiency Issue
In his first issue, Perrissi argues the evidence was legally and factually insufficient to prove he was intoxicated. A person is intoxicated when he does not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into the body. Tex. Pen. Code Ann. § 49.01(2)(A) (Vernon 2003). A person commits the offense of driving while intoxicated "if the person is intoxicated while operating a motor vehicle in a public place." Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). In a legal sufficiency review, an appellate court considers 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). In a factual sufficiency issue, the reviewing court considers all the evidence in a neutral light and sets the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof could not have been met. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App. 2004)). Viewing all the evidence in the light most favorable to the verdict, there was evidence Perrissi was intoxicated. Deputy Spencer testified Perrissi was drifting in and out of the lane, had slurred speech, was unsteady on his feet, was swaying back and forth, smelled of alcohol, demonstrated poor balance, had impaired coordination, could not complete the nystagmus gaze test, and failed the walk-and-turn test. Viewing all the evidence in a neutral light, there is also ample evidence from which a fact finder could conclude rationally beyond a reasonable doubt that Perrissi was guilty. The jury heard Spencer's and Perrissi's accounts of the night's events. We give deference to the jury's determinations, including determinations involving the credibility and demeanor of the witnesses; we may not substitute our judgment for that of the jury's. Zuniga, 144 S.W.3d at 481-82. The evidence of intoxication was neither so obviously weak that the verdict is clearly wrong and manifestly unjust, nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. Issue one is overruled. In issue two, Perrissi maintains the prosecutor went outside the bounds of proper jury argument during his closing statement. Generally, proper jury argument may cover (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). The prosecutor made the following statement to which defense counsel objected:[Prosecutor]: Let's go back to what the officer testified to. He told you he pulled [Perrissi] over, got him out, he was swaying.
[Defense Counsel]: Your Honor, object to that improper statement testimony. Mr. Perrissi parked, not that the officer pulled him over. . . .From trial counsel's objection, we understand the complaint to be that the prosecutor's remark is an incorrect summation of Spencer's testimony or an argument outside the record. Summation of the evidence and reasonable deductions from the evidence are proper areas of jury argument. Wesbrook, 29 S.W.3d at 115. The prosecutor correctly summarized the evidence when he said Deputy Spencer indicated appellant was swaying. Spencer expressly testified to that. However, the officer also testified he followed the vehicle for three or four blocks; Perrissi pulled into a parking lot, and Spencer followed him there. The deputy activated his emergency lights. Perrissi exited the vehicle. Even though the prosecutor's statement — that the officer said he pulled appellant over and got appellant out of the vehicle — may have been an incorrect interpretation of what occurred, the jury heard the deputy's testimony and was free to come to its own conclusion regarding the correctness of the prosecutor's statement. Counsel is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996) (citing Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988)). To constitute reversible error, jury argument must be extreme or manifestly improper or inject new, harmful facts into the case. Jackson v. State, 17 S.W.3d 664, 673-74 (Tex.Crim.App. 2000) (citing Gaddis, 753 S.W.2d at 398). Even if the trial court erred in overruling appellant's objection to the prosecutor's statement, we find no harm. The alleged error relating to jury argument is non-constitutional and must be disregarded unless it affected appellant's substantial rights. See Tex. R. App. 44.2(b). The prosecutor's summation or inference of the evidence did not inject new, harmful facts. His statement was brief and not repeated and was an interpretation of facts to which Deputy Spencer previously testified. We are persuaded the jury had ample evidence before it to support the conviction, and the prosecutor's remark did not have a substantial and injurious effect or influence on the jury's finding of guilt. See Tex.R.App.P. 44.2. Issue two is overruled. We sustain the conviction for misdemeanor driving while intoxicated.