No. 05-05-01571-CR.
Opinion issued December 14, 2006. Do Not Publish.
On Appeal from the County Criminal Court No. 8, Dallas County, Texas, Trial Court Cause No. MB04-54916-J.
Before Justices WRIGHT BRIDGES, and MAZZANT.
Opinion by JUSTICE MAZZANT.
A jury convicted Dale Louis Schlachter of driving while intoxicated. The trial court assessed punishment at 180 days' confinement in the county jail, probated for twenty-four months, and a $1200 fine. In a single issue, appellant contends the evidence is factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
At 11:54 p.m. on June 3, 2004, Dallas police officer Bobby Watkins saw a white Cadillac speeding and weaving in traffic on North Central Expressway. When Watkins stopped the vehicle, appellant, who was in the driver's seat, was the lone occupant. Watkins testified appellant's breath smelled of alcoholic beverage and his eyes were bloodshot. Appellant told Watkins he drank three alcoholic drinks that evening, with the last one occurring around 11:00 p.m. Watkins administered field sobriety 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 four out of four clues on the one-leg stand. Watkins also asked appellant to recite the alphabet, count backwards, and perform a stationary balance test. Appellant did not perform the alphabet or counting backwards tests adequately, and had "heavy circular and front-to-back sway" on the stationary balance test. Watkins testified appellant did not say he had any physical handicaps or injuries that would affect his performance on the tests, nor did appellant indicate he did not understand Watkins's instructions. Appellant said he wore contact lenses, but was not wearing them that evening. Watkins testified he could see that appellant was not wearing contact lenses because he stood only one foot from appellant. Watkins testified appellant leaned against his vehicle throughout the traffic stop, and appellant's speech was slurred at times. When he asked appellant for a breath or blood sample, appellant refused. Watkins believed appellant had lost the normal use of his mental and physical faculties due to alcohol consumption. Watkins arrested appellant and transported him to jail. A videotape of appellant performing the field sobriety tests was played to the jury, but the audio portion was not functioning. Elaine Kepler testified that on June 3, 2004, she attended a "happy hour" with a group of people. Kepler arrived at the restaurant at about 6:00 p.m. Appellant was there before Kepler arrived. Kepler saw appellant have "a couple drinks" throughout the evening. Kepler testified she left the restaurant at about 9:45 p.m., and appellant was not intoxicated when she left. Kepler further testified she was not with appellant when he was stopped by the police and did not see appellant perform any of the field sobriety tests. Appellant denied he was intoxicated when Watkins pulled him over. Appellant testified he arrived at the restaurant at about 6:45 p.m., and Kepler and others were already there. Appellant ordered an alcoholic drink at that time. At about 8:00 p.m., appellant ate pasta and bread from the restaurant's buffet, then ordered another alcoholic drink. Sometime around 10:00 p.m., appellant consumed a beer. Appellant left the restaurant at about 11:00 p.m., talked to some friends in the parking lot a few minutes, then got in his car to drive home, which was only fifteen minutes away from the restaurant. Appellant drove normally and exited the freeway normally when he saw the patrol car's flashing lights. Appellant testified he did not have bloodshot eyes, did not slur his speech, was not speeding or weaving in the traffic, leaned against his vehicle only because he was waiting for Watkins to walk back from the patrol car, and he told Watkins he had back and knee problems. Appellant told Watkins he could not perform the walk-and-turn and one-leg stand tests due to his knee problems. Appellant further testified he is required to wear a single contact lens on his right eye and he was wearing that lens when Watkins pulled him over. Applicable Law
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, No. PD-469-05, 2006 WL 2956272, *7 (Tex.Crim.App. Oct. 18, 2006); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). 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 (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)(A). 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
Appellant argues the evidence is factually insufficient because (1) he operated his vehicle appropriately and committed only minor traffic offenses, (2) he performed the field sobriety tests adequately, (3) his balancing problems were due to back and knee problems and not intoxication, and (4) he was polite and not argumentative with the arresting officer. The State responds that the evidence is factually sufficient to support appellant's driving while intoxicated conviction. Watkins saw appellant speeding and failing to maintain a single lane. Watkins testified appellant's speech was slurred, his eyes were bloodshot, and his breath smelled of alcoholic beverage. Watkins, who is certified in administering field sobriety tests, determined that appellant had lost the normal use of his mental and physical faculties due to the consumption of alcohol. Appellant admitted he drank three alcoholic drinks that evening, but testified he was not speeding or weaving in traffic, did not have bloodshot eyes or slurred speech, and adequately performed the field sobriety tests, given his back and knee problems. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 9. We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Viewed under the proper standard, we conclude the evidence is factually sufficient to support the jury's finding that appellant was driving while intoxicated. See Watson, 2006 WL 2956272, *7; Watkins, 741 S.W.2d at 549. We resolve appellant's sole issue against him. We affirm the trial court's judgment.