Summary
concluding evidence was sufficient to sustain DWI conviction where officer who operated intoxilyzer testified he "had no independent recollection" of appellant but "was sure he observed [appellant] for fifteen minutes prior to asking him to blow into the intoxilyzer because that was standard procedure"
Summary of this case from Psyk v. StateOpinion
No. 09-06-463 CR
Submitted on September 19, 2007.
Opinion Delivered March 12, 2008. DO NOT PUBLISH.
On Appeal from the County Court at Law No. 4, Montgomery County, Texas, Trial Cause No. 05-207042.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
A jury convicted Robert John Stalknecht of the misdemeanor offense of driving while intoxicated and the trial court sentenced him to 180 days confinement in the county jail and a $500 fine with both the fine and jail-time probated. Stalknecht appeals. Stalknecht challenges the factual sufficiency of the evidence supporting the jury's verdict. A factual sufficiency review requires us to ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex.Crim.App. 2006). Officer Jack Valenzuela with the Montgomery County Sheriff's Office testified that while on duty on April 10, 2005, he observed a dark-colored Chevrolet Blazer "strike a curve [sic]" in Montgomery County. He got behind the vehicle to observe the driver's actions. According to Officer Valenzuela, the driver took several wide turns, failed to use a blinker on one turn, swerved into the oncoming lane of traffic, and several times almost went into a ditch. Officer Valenzuela turned on the emergency lights and the Blazer pulled over. Stalknecht exited the Blazer, nearly stumbled, and caught himself with the door of his vehicle. When Officer Valenzuela approached Stalknecht, Officer Valenzuela smelled a strong odor of alcohol on him. Stalknecht's speech was slurred. He told Officer Valenzuela that he was "shit up," that he had been to TGI Fridays restaurant, and was going home. Prior to administering the horizontal gaze nystagmus and vertical nystagmus tests, Officer Valenzuela asked Stalknecht to remove his glasses and then asked if he had any head injuries. Stalknecht "pointed to something on his head" but did not indicate it was a head injury. Officer Valenzuela noted six clues of intoxication for the HGN test, and also noted vertical nystagmus which indicates a high level of intoxication. During the HGN test, Stalknecht swayed back and forth and in a circular motion. Prior to taking the one-leg stand field sobriety test, Stalknecht told Officer Valenzuela that he was missing part of a toe. Stalknecht was unable to perform the one-leg stand test as well as the nine step walk-and-turn test. Other than stating he had part of a toe missing, Stalknecht did not indicate any other physical reason he could not perform the nine step walk-and-turn test. Officer Valenzuela admitted that he might not have given all the requisite instructions to Stalknecht when he administered the one-leg stand test to Stalknecht. A back-up officer, Deputy Paul Hahs, administered the walk-and-turn test due to a knee injury which prohibited Officer Valenzuela from demonstrating the test. Stalknecht told Officer Valenzuela that he had consumed five glasses of red wine that were eight ounces each. When asked what kind of vehicle he was driving, Stalknecht responded that he was driving a 1974 Blazer, but his vehicle was a 1994 Blazer. Stalknecht consented to a breath test and Officer Valenzuela took him into custody and to the jail. Trooper Travis Wroten with the Texas Highway Patrol testified that he administered the intoxilyzer test to Stalknecht. He testified that while he had no independent recollection of Stalknecht, he was sure he observed Stalknecht for fifteen minutes prior to asking him to blow into the intoxilyzer because that was standard procedure. Trooper Wroten explained that during that time, Stalknecht did not do anything that would have caused residual alcohol to be left in his mouth. The results from the intoxilyzer test indicated Stalknecht's alcohol concentration level was .173 at 3:24 a.m. and .170 at 3:27 a.m. Glenn Merkord, technical supervisor for the Texas Department of Public Safety Breath Alcohol Testing Program testified that on March 25, 2005 and April 28, 2005, the same intoxilyzer used on Stalknecht was checked and it performed properly. He stated he "would be fairly confident in saying with a reasonable degree of certainty" that Stalknecht's alcohol concentration level at the time he was stopped was at least the same as it was when he was tested. Clay Woodgate testified that he met Stalknecht in the late 1970s or early 1980s when they worked together in the maritime industry. They became friends and subsequently Stalknecht became the godfather to Woodgate's daughter. Woodgate stated that earlier on the same evening of Stalknecht's arrest, he met with Stalknecht to offer him a full-time job as an operations manager with the company that employed Woodgate. At that time, Stalknecht was working as a subcontractor for the company. According to Woodgate, he and Stalknecht decided to eat at Macaroni Grill because an adjacent restaurant, TGI Fridays, was too crowded. They arrived at Macaroni Grill around 11:00 p.m. Woodgate stated he was "completely sober" and "might have had a glass of wine or a glass of beer." When asked how much Stalknecht had to drink that night, Woodgate responded, "At the most, he would have probably had at the max two drinks[-]that would be about normal for him." Later he testified Stalknecht had either one or two glasses of red wine. Woodgate described Stalknecht as "not a heavy drinker" and he had never seen him intoxicated before. Woodgate testified Stalknecht acted like himself that evening. They left the restaurant around 1:00 or 1:15 a.m. They walked out together, and Woodgate observed Stalknecht back his vehicle out and leave the parking lot. Woodgate stated there was nothing abnormal about Stalknecht's driving as he left the parking lot. Woodgate explained that he had seen Stalknecht limp badly at work due to a bad foot and that Stalknecht sometimes suffered from dizziness while on the job. On one occasion, Stalknecht was so exhausted and disoriented that he "could hardly walk the stairs to get up to the captain's area." On another instance, Woodgate witnessed Stalknecht having difficulty walking into the office and Stalknecht was "knocking into things." On that occasion, Woodgate took Stalknecht to an emergency clinic and a doctor prescribed Stalknecht medications, for which Woodgate paid $300. Woodgate said he was unable to provide the receipts for the prescriptions or for dinner at Macaroni Grill because his company was conducting their annual audit and the documents were at the company's CPA's office. Stalknecht testified they arrived at Macaroni Grill around 10:30 or 11:00 p.m. He stated he rarely drinks and that night, he consumed two and one-third glasses of wine. He felt dizzy and nauseous when he left the restaurant. He was feeling "consistently worse" before Officer Valenzuela pulled him over. He got out of the truck, was very dizzy, and almost fell down because he "nearly passed out." He told Officer Valenzuela that he was "messed up" but explained to the jury that what he meant by "messed up" was that he was disoriented. He did not tell the officer at any time that he was nauseated, dizzy, or disoriented. When asked why he told Officer Valenzuela he had five drinks when he only had less than three, Stalknecht said he was just estimating. Stalknecht explained that he had colon cancer and that in April 2005 he was still healing from a secondary infection from stomach surgery that had been performed in November. Months after the surgery, he still was taking large doses of antibiotics and still experiencing dizzy spells. He testified he also has an amputated toe and a diabetic foot ulcer. He stated he suffers from frequent allergic reactions since his hospitalization for the stomach surgery. At the time of trial, he was taking prescribed medication for diabetes and the foot ulcer, as well as over-the-counter Zantac because he has problems digesting food. The trial court admitted into evidence numerous medical records for Stalknecht. The records only relate to treatment Stalknecht received in October and November of 2004. The trial court admitted the videotape of the traffic stop into evidence and the jury viewed the tape during the trial. The jury heard the witnesses' testimony as to whether Stalknecht was intoxicated, and the jurors could determine the witnesses' credibility and the weight to be given their testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Viewed neutrally, the evidence establishing Stalknecht was intoxicated is neither so weak nor is the evidence that he was not intoxicated so overwhelming as to undermine our confidence that the jury rationally determined Stalknecht's guilt. We hold the evidence is factually sufficient to sustain Stalknecht's conviction for driving while intoxicated. We overrule Stalknecht's sole issue and affirm the judgment of the trial court. AFFIRMED.