No. 05-10-00807-CR
Opinion issued April 19, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Criminal Court of Appeals No. 2 Dallas County, Texas, Trial Court Cause No. MB09-33384-M.
Before Chief Justice WRIGHT and Justices 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 LAGARDE.
A jury found appellant Robert Lee Slocum, Jr. guilty of driving while intoxicated (DWI). The trial court assessed punishment at ninety days' confinement in the county jail, probated for fifteen months, and a $300 fine. In a single point of error, appellant contends the evidence is legally insufficient to support the jury's verdict. After reviewing the evidentiary record in this case, we affirm the trial court's judgment.
Background
The jury heard testimony from one witness for the State and two witnesses for the defense. Irving Police Sergeant Jason Rodgers testified that at about 10:45 p.m. on February 10, 2009, he stopped appellant's vehicle because he saw appellant make lane changes without signaling and drift close to the line between the lanes. Although Rodgers activated his emergency lights, appellant did not stop until Rodgers sounded his siren. When he talked with appellant, who was alone in the vehicle, Rodgers noticed appellant had bloodshot eyes, slurred speech, and an odor of alcoholic beverage on his breath. Appellant got out of the vehicle and swayed as he walked to the back of the vehicle. When Rodgers told appellant why he had stopped him, appellant said he was coming from a friend's house and was talking on his cellular phone as he changed lanes. Appellant denied consuming any alcoholic beverage that day. Rodgers administered field sobriety tests to appellant, including the horizontal gaze nystagmus (HGN), the walk-and-turn, and one-leg stand tests. During the HGN, appellant said he had vertigo and had a head injury from a prior car accident. Appellant exhibited six clues on the HGN, three clues on the walk-and-turn, and two clues on the one-leg stand. Rodgers testified that based upon appellant's poor performance on the field sobriety tests, he determined appellant had lost his mental and physical faculties due to the consumption of alcohol. Appellant refused to give a breath sample, and he did not offer to give a blood sample. A videotape showing appellant performing the field sobriety tests, and his subsequent arrest, was admitted into evidence and shown to the jury. Rodgers testified that during an inventory search of appellant's vehicle, he found an empty "Jack Daniels" bottle in the trunk. Rodgers said he did consider the bottle a "high value" evidence item, so he did not write it down on the vehicle inventory list. Yolanda Crenshaw and Brandon Guyden testified on appellant's behalf. Crenshaw testified she knew appellant because they were both members of the same motorcycle club. On February 10, 2009, she and appellant had lunch together sometime between 11:00 a.m. and 12:00 p.m., then they spent several hours at a salvage yard looking for truck parts. After finding the needed parts, Crenshaw drove appellant to his house. Guyden arrived at appellant's house while Crenshaw was there; appellant's brother was also at appellant's house. No one consumed any alcohol. Crenshaw left appellant's house at about 6:00 p.m. or 7:00 p.m. Later that evening, appellant called Crenshaw and asked if he could come to her house to pick up truck parts he had left in the back seat of her truck. When appellant arrived at Crenshaw's house, she did not see any signs that he had consumed alcohol. Crenshaw testified she had seen appellant drink alcohol before but had never known him to drink and drive. After being at Crenshaw's house for about forty-five minutes, appellant left. A short time later, appellant called Crenshaw and asked for directions because he was "disoriented." As they discussed the "long way" and the "short cut" on their cell phones, appellant said he was "getting pulled over." Crenshaw told the jury she had worked as a flight attendant for fourteen years, and that part of her duties as a flight attendant involved coming into contact with people who consumed alcohol. She said when appellant came to her house, it took him "two minutes" to pick up the truck parts. Appellant stayed for about forty-five minutes, and left her house at either 6:45 p.m. or 7:45 p.m. She could not recall which specific time. Crenshaw said appellant's house was about thirty minutes from her house. Crenshaw did not know what appellant was doing from the time he left her house until 10:45 p.m. when he was stopped by the officer. Brandon Guyden testified he has known appellant since 2007, they were good friends who go to church together, and they belong to the same motorcycle club. Guyden said appellant does not drink beer or "hard liquor," but appellant does drink wine. On the day of his arrest, appellant told Guyden he needed help to put a truck bed on his truck. Guyden arrived at appellant's house sometime around 5:00 p.m. Crenshaw was there. Appellant said he and Crenshaw had been out getting truck parts earlier that day. Guyden testified he was at appellant's house for a "couple of hours," and no one had anything to drink. Although appellant looked tired, there was no smell of alcohol on appellant. Guyden testified that because appellant is a truck driver with a commercial driver license, appellant was "pretty adamant" about not drinking and driving. Guyden had never seen appellant drink and drive, and described appellant as a "light drinker" who "mellowed out" when he drank wine. Guyden said he did not recall the exact time he left appellant's house. Guyden said he watched the videotape of appellant performing field sobriety tests, and he believed appellant acted normally. Guyden did not believe appellant talked "a little slow" on the videotape. During cross-examination, Guyden said he did not have any training or experience in recognizing a person who is intoxicated, and that someone who had such training or experience would better know if a person is intoxicated. Medical records from a head injury and concussion appellant sustained in a car accident in November 2007 were admitted into evidence and shown to the jury. Applicable Law
In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 (a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution). 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. Penal Code Ann. § 49.04(a) (West 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). Discussion
Appellant contends the evidence is insufficient because the only evidence that appellant was intoxicated came from one witness. Appellant asserts the "overwhelming evidence presented" by his two witnesses shows he did not drink any alcoholic beverage the day he was arrested for DWI, and that the jury should have "properly considered" his medical records indicating a previous head injury caused his symptoms of intoxication. The State responds that the evidence is sufficient to prove appellant did not have the normal use of his mental or physical faculties due to the introduction of alcohol into his body. Appellant does not dispute the fact that he was operating a motor vehicle in a public place. He challenges the sufficiency of the evidence to prove he was intoxicated at the time he drove a vehicle. The jury heard Rodgers's testimony that appellant had bloodshot eyes, slurred speech, had an odor of an alcoholic beverage on his breath, and did not perform the field sobriety tests satisfactorily. On the other hand, Crenshaw and Guyden told the jury they were with appellant earlier that evening and neither they nor appellant drank any alcohol. And, Guyden said appellant's behavior on the field sobriety test videotape looked normal. It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant operated a motor vehicle in a public place while intoxicated. Thus, the evidence is sufficient to sustain the jury's verdict and appellant's conviction. See Brooks, 323 S.W.3d at 895. We overrule appellant's sole point of error. We affirm the trial court's judgment.