No. 05-09-00927-CR
Opinion issued August 31, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 3 Collin County, Texas, Trial Court Cause No. 003-86164-04.
Before Chief Justice WRIGHT and Justices RICHTER and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice MALONEY.
The trial court convicted Keith Douglas Roane of driving while intoxicated (DWI), assessed a sentence of sixty days in the Collin County Jail and a $600 fine, suspended the jail sentence, and placed appellant on community supervision for one year. In two issues, appellant complains the evidence is legally and factually insufficient. We affirm the trial court's judgment.
BACKGROUND
A telephone call to 911 about a major accident sent a police officer to an alley where he found appellant standing outside a vehicle and a female inside the vehicle. After arriving at the scene, the officer arrested appellant for DWI. SUFFICIENCY OF THE EVIDENCE
Appellant argues that the State did not present legally or factually sufficient evidence to sustain the conviction. He contends that no evidence exists to show appellant operated the vehicle in a public place or he was "actually intoxicated at the time he drove the vehicle in a public place." The State responds that appellant's statements to the police officer were sufficient to show that appellant operated a motor vehicle in a public place while intoxicated. THE EVIDENCE
Darren Whitman, an Allen Police Officer, testified that he is certified as a peace officer, as an intoxilyzer operator, to perform standard field sobriety tests (SFST), as well as an instructor for SFST. At 3:30 a.m., he received a dispatch directing him to a major accident in a public alleyway in Allen, Texas. When Whitman arrived at the scene, he saw appellant standing outside a Ford Bronco and a female inside the vehicle. Appellant told Whitman that he and the female were four-wheeling in some fields in "a friend's Bronco" when the female was ejected from the Bronco. Because she was unable to drive, he drove back to the alley and telephoned 911. Whitman smelled alcohol and "observed" other signs of intoxication-poor balance, red, watery eyes, and slightly slurred speech. Whitman began the SFST-the horizontal gaze nystagmus test (HGN), the nine-step walk and turn, and the one-leg-stand test. Whitman stated appellant failed each test he took. The State introduced videotapes of appellant at the scene and at the police station. Appellant objected to the portion of the videotape where Whitman administered the breath test (PBT) and announced its results. The trial court admitted the videotape, announcing it would "disregard" that portion of the videotape. The videotape made at the scene depicted appellant performing the SFST, and the videotape made at the police station showed appellant receiving his admonishments and refusing a breathalyzer test. On cross-examination, appellant established that the girl was either in the passenger seat or the back seat. Whitman acknowledged he had no personal knowledge of appellant's driving or where and when he drove. Whitman conceded that all of his information came from appellant's statements and the 911 call. Whitman could not determine where appellant and the girl were "four-wheeling" because appellant, himself, did not know. Whitman affirmed that appellant admitted he had been at a party and he had been drinking. Whitman also admitted that he had no personal knowledge of appellant's normal speech. When questioned about whether the flashing lights at the scene compromised the HGN test, Whitman established that appellant's eyes did not look at the lights, only Whitman's finger. On redirect examination, the State had Whitman explain exactly how appellant reacted to each of the tests administered. Additionally, the State directed Whitman to the videotape where appellant stated that he was a paralegal for a DWI attorney. Although Whitman could not remember appellant's actual occupation, he was not a paralegal, and Whitman believed he clerked at a grocery store. When the trial court reminded the attorneys that the videotapes had not been played in their entirety, both the State and appellant requested that the trial court review the videotapes. The State recalled Whitman and questioned what the police dispatcher relayed to him. The dispatcher told Whitman that the "person on the phone [sic] said" he had lost control of the vehicle while driving and the accident had occurred somewhere else. After the trial court found appellant guilty, appellant and the State entered into an agreement on punishment. STANDARD OF REVIEW a. Legal Sufficiency
In evaluating the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and of their testimony's weight, and it is within the fact finder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). A claim of legal insufficiency is, in effect, an argument that the case should never have even been presented to the fact finder. Id. We do not reverse unless we conclude no rational fact finder could have found all of the essential elements of the offense beyond a reasonable doubt. See Villarreal v. State, 286 S.W.3d 321, 327-28 (Tex. Crim. App. 2009). b. Factual Sufficiency
In reviewing the factual sufficiency of evidence to support a verdict, we review all the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We determine the factual sufficiency of evidence by considering if the evidence although legally sufficient to support the verdict is (1) "too weak" to support the jury's verdict, or (2) "considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence." Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We cannot reverse for factual sufficiency when the greater weight and preponderance of the evidence actually favors conviction. See Watson, 204 S.W.3d at 417. Although we have a limited ability to second-guess the jury, we must defer to the jury's verdict and employ a "high level of skepticism" before reversing. Roberts, 220 S.W.3d at 524. Additionally, we must defer to the fact finder's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). 2. Applicable Law
A person commits a DWI if he operates a motor vehicle while intoxicated in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). Extrajudicial confessions alone will not support a conviction. See Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000). The corroborating evidence need not prove the offense, it must merely make the "`commission of the offense more probable than it would be without the evidence.'" Cardenas v. State, 30 S.W.3d 384, 390 (Tex. Crim. App. 2000) (quoting Chambers v. State, 866 S.W.2d 9, 15-16 (Tex. Crim. App. 1993)). We no longer look at what theories are not proven. See Geesa v. State, 820 S.W.2d 154, 160-61 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). The critical issue is whether proof exists that will allow a fact finder to conclude that "at the time of the driving in question, whenever that might be, the defendant was intoxicated. . . ." Zavala v. State, 89 S.W.3d 134, 139 (Tex. App.-Corpus Christi 2002, no pet.). A defendant's refusal to take a breath test is admissible at trial, and the fact finder may infer guilt from that refusal. See Tex. Transp. Code Ann. § 724.061 (Vernon 1999); Gaddis v. State, 753 S.W.2d 396, 399-400 (Tex. Crim. App. 1988). 4. Application of Law to the Facts
Appellant limits his appeal on legal sufficiency to contending the State produced no independent evidence of how recently appellant drove the vehicle or how much time elapsed between his driving the vehicle and the police arrival. He contends that the evidence is factually insufficient to show appellant was intoxicated, he operated a vehicle in a public place, or that he was intoxicated at the time he operated a vehicle in a public place. We agree that no one testified to how much time elapsed between when appellant was drinking, the accident occurred, and when the police officer arrived at the scene. Appellant relies on Scillitani v. State, 297 S.W.3d 498 (Tex. App.-Houston [14th Dist.] 2009), vacated and remanded, No. PD-0069-10, 2010 WL 2606485 (Tex. Crim. App. June 30, 2010)), and First District cases cited therein to argue that the State must establish some nexus between the time appellant drank alcohol and when he drove the Bronco. The Houston court determined that Scillitani's admission was legally sufficient to show he was driving, but not enough to establish the temporal link between his driving and his intoxication. Id. at 501. The Texas Court of Criminal Appeals vacated the Fourteenth Court of Appeals's judgment and remanded Scillitani for reconsideration in light of Kuciemba v. State, 310 S.W.3d 460 (Tex. Crim. App. 2010). In Kuciemba, the court of criminal appeals retained the requirement of showing a temporal link between the defendant's intoxication and driving to convict for DWI, but held that circumstantial evidence can establish this link and "[b]eing intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor's intoxication caused the accident." Id. at 462. The State presented evidence from which the fact finder could conclude appellant was intoxicated when Whitman arrived at the scene. That Whitman found no evidence of alcohol consumption in the vehicle could lead a reasonable fact finder to conclude that appellant had nothing to drink between the time he left the party, went four-wheeling in the fields, and Whitman arrived at the scene. Appellant was standing next to the driver's door of the Bronco, had the vehicle's keys in his pocket, admitted he had been drinking at a party, and he had called 911. According to appellant, the passenger's injury prohibited her from driving. From this, a reasonable fact finder could conclude that appellant had driven the vehicle. Additionally, appellant refused to submit to the intoxilyzer test when taken into the intoxilyzer room at the police station. Viewing the evidence in the light most favorable to the verdict, we conclude any reasonable fact finder could have found the essential elements of the offense beyond a reasonable doubt. We overrule appellant's point of error number one. In support of appellant's contention that the evidence is factually insufficient to support the judgment, he directs us to State's exhibits one, two, three, and four. We agree that State's exhibit one, Statutory Warnings, and State's exhibit two, appellant's driver's license, are no evidence of intoxication. State's exhibits three and four were admitted and viewed by the fact finder. Appellant maintains because Whitman did not see appellant driving, the evidence is factually insufficient to support the judgment. It is uncontested that Whitman never saw appellant driving. However, when Whitman arrived at the scene, appellant and his companion were the only ones there. Appellant had the keys to the Bronco in his hand and, by his own admission, his companion was incapable of driving and the videotape supports that the passenger was lying in the back seat. The circumstantial evidence supports that appellant drove there. Next, appellant relies on State's exhibit three, videotape of appellant at the scene, and State's exhibit four, videotape of appellant in the intoxilyzer room, to contend appellant's good performance on the SFST tests shows he did not appear intoxicated. The trial court viewed these tapes and, as the fact finder, determined how Whitman administered, and appellant performed, the SFST tests. Appellant contends that Whitman's telling appellant "good job" and "about to release" him show Whitman had doubts about his intoxication. Appellant ignores that Whitman testified he said those things to get appellant to cooperate and to take the PBT. Appellant also points to Whitman's testimony that appellant's companion was driving when ejected from the Bronco. That appellant may have told Whitman that his companion was driving when she was injured does not contradict Whitman's testimony regarding appellant's admitting he drove the Bronco to the alley. Appellant also contends the evidence is factually insufficient to show he drove on a public street. Appellant admitted he drove to the alley. The evidence showed that to reach the alley a vehicle had to drive on public roads and the alley itself was open to the public. Appellant, himself, told Whitman his companion was injured and could not drive. The combination of these facts and our review of the record as a whole shows that the evidence is factually sufficient to support the judgment. We overrule appellant's point of error number two. We affirm the trial court's judgment.