No. 05-03-00572-CR.
Opinion issued April 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court, No. 4, Dallas County, Texas, Trial Court Cause No. MB02-14272-E. Affirmed.
Before Justices JAMES, WRIGHT, and BRIDGES.
Opinion By Justice JAMES.
Scott William Taylor appeals his conviction for driving while intoxicated. After the jury found appellant guilty, the trial court sentenced appellant to 150 days confinement, suspended imposition of the sentence, placed appellant on community supervision for two years, and imposed a $1000 fine. On appeal appellant contends (1) the evidence is factually insufficient to support his conviction; and (2) "[t]he standard of review for factual sufficiency challenges is incorrect." We affirm the trial court's judgment.
FACTUAL BACKGROUND
On the night of June 15, 2002, appellant was at a State Guard party. Ryan McLearen testified he was at the party from 9 p.m. to 11 p.m. During that time, he saw appellant take two swigs from a bottle of Jack Daniels. McLearen also saw appellant drinking from shot glasses, and appellant always had a beer in his hand Appellant was stumbling and staggering, his speech was slurred, and he persisted in hugging a woman at the party despite her telling him to stop. The host of the party took appellant's keys from him and hid them; however, appellant either found the keys or had a spare key because he got into his vehicle and drove away. McLearen followed appellant in his own vehicle, and McLearen telephoned the police. As they drove down a residential street, McLearen saw appellant swerving from left to right. McLearen saw appellant almost hit a couple of parked cars, a light pole, and a mail box. After appellant turned onto a main thoroughfare, McLearen flagged down a passing Addison police car, and the officer stopped appellant. At 11:20 p.m., Addison Police Officer Keith Wilson received a report from the dispatcher that a citizen had called in a complaint about a drunk driver in a brown Oldsmobile with a particular license plate. Wilson saw a brown Oldsmobile and, after verifying the license plate, initiated a traffic stop of the Oldsmobile driven by appellant. While following appellant, Wilson did not see him drive erratically or commit any traffic violations. Appellant pulled into a restaurant parking lot and stopped safely. Wilson testified that when he spoke to appellant as he sat in the car, Wilson saw that appellant's eyes were red and watery, his speech was slurred, and the smell of alcoholic beverages emanated from the car. Wilson told appellant he was stopped for suspicion of driving while intoxicated. Wilson told appellant he could smell the odor of an alcoholic beverage coming out of appellant's car, and he asked appellant how much he had to drink that day. Appellant told Wilson he had consumed only a six-pack since 3:00 p.m. Wilson asked appellant to get out of the car to perform field sobriety tests. Wilson testified that appellant got out of the car, making sure he kept his balance by holding on to the sides of the car. Appellant told Wilson he had a bad left knee and ankle, and Wilson told him to try the tests anyway and assured appellant he would take appellant's bad knee and ankle into consideration. Wilson testified that on the horizontal-gaze-nystagmus test, appellant indicated all six clues; on the walk-and-turn test, appellant could not stay in the starting position while the test was explained, he twice missed walking heel to toe, and he had to raise his arms to keep his balance; and on the one-legged-stand test, appellant raised his arms to keep his balance and "he dropped his foot before 30 seconds worth." Wilson testified he was of the opinion appellant had lost the normal use of his physical and mental faculties due to intoxication caused by the ingestion of alcoholic beverages. Wilson arrested appellant for driving while intoxicated and took him to the city jail. Appellant was videotaped at the jail standing for fifteen minutes, having the breath test warnings read to him, and refusing to take a breath test. During this time, appellant was able to stand still for more than fifteen minutes with only minimal swaying. FACTUAL SUFFICIENCY
In his first issue, appellant asserts the evidence is factually insufficient to support his conviction. In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "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) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Appellant argues the evidence shows he had not lost the use of his mental and physical faculties and that McLearen exaggerated the manner of appellant's driving. Appellant asserts the videotape from the police car shows appellant's driving was straight and appropriate, and the videotape from the jail showed appellant was able to stand straight. Wilson testified that when he approached appellant, he already had his driver's license and proof of insurance in his hand to give to Wilson, and Wilson agreed this showed appellant had full use of his mental faculties. Wilson agreed that a person viewing "the video" had the right to reach a different opinion about appellant's intoxication. Appellant asserts McLearen was not believable because it was impossible for anyone to go from appellant's state of high intoxication as described by McLearen to the state in which he appears on the videotapes a few minutes later. Appellant argues, "The jury effectively transmogrified probable cause to make the arrest into proof beyond a reasonable doubt to convict. Viewing the evidence in a neutral light, the evidence screams reasonable doubt. Viewing the evidence in a neutral light, no rational juror could have concluded the State proved its case beyond a reasonable doubt." We disagree. The evidence "screams" reasonable doubt only if we disregard the contrary testimony of McLearen and Wilson. As noted above, we consider all the evidence in assessing the factual sufficiency of the evidence. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003); Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 129. McLearen testified that while appellant was at the party, he was drinking whiskey and beer, his speech was slurred, and he was staggering and stumbling. McLearen testified that while driving, appellant nearly hit two cars, a light pole, and a mailbox on a residential street before he turned onto the main thoroughfare. Wilson testified that appellant's driving on the main thoroughfare was lawful, but his condition, as shown by his slurred speech and performance on the field sobriety tests, showed he was intoxicated. Appellant argues Wilson's and McLearen's testimony is not believable because he could not have recovered from the described level of intoxication so quickly as to be able to stand straight and still in the video at the jail. However, the record contains no evidence of the impossibility of this feat, so his argument is not supported by the record. After reviewing all the evidence in a neutral light, we conclude the proof of appellant's guilt "is [not] so obviously weak as to undermine confidence in the jury's determination, [n]or [is] the proof of guilt, although adequate if taken alone, . . . greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11. We resolve appellant's first issue against him. In his second issue, appellant asserts the standard of review for factual sufficiency as defined by the court of criminal appeals in such cases as Clewis, Johnson, and Zuliani is "incorrect." Appellant notes that the criminal factual sufficiency standard is a modification of the civil preponderance-of-the-evidence factual sufficiency standard. See Johnson, 23 S.W.3d at 11 ("We hold, therefore, that our opinion in Clewis is to be read as adopting the complete civil factual sufficiency formulation."). However, appellant asserts that since Clewis and Johnson, the Texas Supreme Court has adopted a materially different factual sufficiency standard of review for the clear-and-convincing-evidence burden of proof. See In re C.H., 89 S.W.3d 17, 25, 26 (Tex. 2002). Appellant requests that we formulate a standard of review more akin to In re C.H. than Clewis. Appellant also argues Clewis and Johnson are incorrect in requiring an appellate court to defer to the jury when faced with credibility determinations and contradictory evidence. Appellant argues, "Courts of appeals should sit as thirteenth jurors. . . . A majority of an appellate panel should have the ability to hang a jury verdict." We do not have the authority to apply a standard of review contrary to those mandated by the court of criminal appeals. Duckworth v. State, 89 S.W.3d 747, 753 (Tex. App.-Dallas 2002, no pet.) ("We may not apply a different analysis to a court of criminal appeals' pronouncement lest we overstep our power as an intermediate appellate court."). We resolve appellant's second issue against him.