No. 05-02-00686-CR
Opinion Filed May 23, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F-00-72515-KI AFFIRM
Before Justices MOSELEY, O'NEILL, and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice O'Neill.
Appellant appeals his conviction for felony driving while intoxicated (DWI). After a jury found appellant guilty, the trial court assessed punishment at five years' confinement. In two points of error, appellant contends (1) the trial court erred in failing to define reasonable doubt in the jury charge at guilt-innocence, and (2) the evidence is factually insufficient to support his conviction. For the following reasons, we affirm the trial court's judgment.
Background
The grand jury indicted appellant for felony DWI. The manner of intoxication alleged was that appellant "did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, and any other substance into the defendant's body." At trial, Carlos Cifuentes testified that on July 1, 2000, he and appellant were involved in a traffic altercation on I-30. Cifuentes tried to get away from appellant's vehicle, but appellant began following Cifuentes and making obscene gestures at him. Appellant was not watching where he was going and eventually lost control of his vehicle, causing it to "flip." Officer Xavier Leal responded to the one-vehicle accident. Leal testified he saw several empty beer cans inside appellant's car and the car smelled of freshly spilled beer. Appellant's passenger (and wife) told the officer that both she and appellant had been drinking. Officer D.T. Marchetti also responded to the accident. According to Marchetti, appellant smelled of alcohol, had bloodshot eyes, and his speech was slurred. However, because of appellant's injuries, Marchetti did not conduct any field sobriety tests. Nevertheless, Marchetti testified that he believed the accident occurred because appellant had lost the normal use of his faculties due to the introduction of alcohol into his body. However, Marchetti conceded appellant's slurred speech and bloodshot eyes may have been caused by the injuries he suffered in the accident. The State introduced medical records from Baylor Hospital showing that one hour after the accident, appellant's blood-alcohol concentration (BAC) was 0.258. The State also presented evidence that a person with a BAC of 0.258 would have lost the normal use of his mental or physical faculties. Finally, the State presented evidence appellant had two prior DWI convictions. After hearing the evidence, the jury found appellant guilty of driving while intoxicated after having been twice convicted of DWI. In his first point of error, appellant contends the trial court erred by failing to define reasonable doubt in the jury charge at guilt-innocence. According to appellant, the trial court should have given the reasonable doubt definition set out in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991). Appellant acknowledges that the court of criminal appeals overruled Geesa in Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). In Paulson, the court of criminal appeals held a trial court should not define reasonable doubt for the jury. Id. at 573. Nevertheless, appellant asserts Paulson should not be applied "retroactively." Initially, we disagree with appellant's assertion Paulson was applied retroactively in this case. Specifically, appellant was tried after Paulson issued. The reasonable doubt instruction is procedural in nature. See Geesa, 820 S.W.2d at 163. Procedural rules generally control litigation from their effective date. See Wilson v. State, 473 S.W.2d 532, 535 (Tex.Crim.App. 1971). Therefore, Paulson applies to this case. Cook v. State, 99 S.W.3d 310, 315 (Tex.App.-Eastland 2003, no pet.). Furthermore, in Arroyo v. State, the court of criminal appeals applied Paulson to a case that was tried before Paulson issued, thus indicating it is to be applied retroactively. See Arroyo v. State, 32 S.W.3d 868, 868 (Tex.Crim.App. 2000) (per curiam).Therefore, we cannot conclude the trial court erred in failing to define reasonable doubt in its charge. We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is factually insufficient to show he lost the normal use of his mental or physical faculties by reason of the introduction of alcohol or some other drug into his body. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, our duty is to examine the jury's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury's findings so as to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We reverse only if: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. In this point of error, appellant contends the evidence is factually insufficient to show he was intoxicated as alleged in the indictment. The indictment alleged appellant was intoxicated in that he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body. See Tex. Pen. Code Ann. § 49.01(2)(A) (Vernon 2003). The State presented evidence appellant's BAC was 0.258 after the accident and that a person with that BAC would have lost the normal use of his mental or physical faculties. The State also presented evidence (1) that there were beer cans in appellant's car, (2) that appellant's erratic driving caused the one-vehicle accident, (3) that appellant's wife admitted appellant had been drinking, and (4) that appellant smelled of alcohol, had bloodshot eyes, and slurred speech after the accident. Appellant nevertheless asserts the evidence is factually insufficient to support the jury's finding that he was intoxicated. According to appellant, the "primary" evidence that shows he was not intoxicated was that he maintained "normal control" of his vehicle for some time as he followed Cifuentes before crashing the vehicle. He also relies on (1) the lack of evidence regarding when appellant had been drinking or how much, (2) the lack of evidence concerning his demeanor, and (3) evidence that his slurred speech and bloodshot eyes could have been caused by his injuries. We have reviewed all the evidence in a neutral light and cannot conclude (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 11. We overrule appellant's second point of error. We affirm the trial court's judgment.