Opinion
No. SA-04-CR-228-RF.
June 3, 2005
ORDER DENYING APPEAL AND AFFIRMING A DECISION OF UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is Appellant's Notice of Appeal of a conviction and sentence imposed by United States Magistrate Judge Primomo, entered on March 8, 2004. The Magistrate Judge convicted the Defendant of driving while intoxicated. Defendant filed her brief in support of Appeal from a decision of the United States Magistrate Judge, on March 23, 2005 (Docket No. 5). Appellee filed a brief in response to Defense Appeal from the decision of the United State Magistrate Judge on April 25, 2005. After due consideration of the arguments made in both briefs, the Court is of the opinion that the Magistrate Judge's decision should be AFFIRMED and the Appeal be DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours on August 2, 2003, Appellant drove up to the Walters Street gate on Fort Sam Houston, with a drunken soldier asleep in her back seat. She approached Sergeant Cowart, the guard on duty, to ask where the drunken solider belonged. At that time, Sergeant Cowart smelled alcohol, but could not discern if the odor came from the soldier or Appellant. However, Sergeant Cowart testified that he believed Appellant was impaired and could not operate her vehicle.
Shortly thereafter, Sergeant Conaway arrived and immediately began recording the events. Sergeant Conaway first attended to the soldier and then focused his attention on Appellant. He approached Appellant and received his first indication of possible impairment by smelling an alcoholic odor from her breath. Sergeant Conaway, a certified administrator of field sobriety tests, decided to test Appellant for intoxication. Appellant explained to Sergeant Conaway that she had an extreme headache and that she had taken medication for the pain.
Sergeant Conaway administered the horizontal gaze nystagmus (HGN) test. Sergeant Conaway testified that Appellant failed the HGN test because she did not follow instructions and her eyes lacked smooth pursuit. Next, Sergeant Conaway administered the walk and turn test, in which he asked Appellant to walk an imaginary straight line by keeping one foot in front of the other. Sergeant Conaway testified that Appellant also failed the walk and turn test because she was unable to keep balance, missed steps, and did not turn as directed. Lastly, Sergeant Conaway administered the one-leg-stand test even though Appellant stated that she could not perform that test. She attempted to follow the directions of the test and once again failed. Appellant also laughed loudly throughout the administration of the tests. Based on all these factors, Sergeant Conaway concluded that Appellant was impaired because of alcohol and/or drugs. He then brought her to the Military Police Station, where futile attempts were made to administer a breath test because the Appellant was unable to blow hard enough to register a valid sample.
On November 6, 2003, a Criminal Information was filed against Appellant for driving while intoxicated. On January 7, 2004, Appellant appeared before Judge Primomo and was released on an unsecured bond. On April 1, 2004, a Superseding Information was filed against Appellant, with one count for driving while intoxicated and a second count for possession of alcohol in a motor vehicle.
18 U.S.C. § 13 (involving § 49.04 of the Texas Penal Code).
On March 8, 2004, a bench trial was held, where Judge Primomo found Appellant guilty beyond a reasonable doubt of driving while intoxicated and acquitted Appellant of the possession of alcohol in a motor vehicle charge. Judge Primomo arrived at his decision by viewing the totality of the circumstances and weighing the credibility of the Appellant and Sergeant Conaway.
STANDARD OF REVIEW
This Court reviews de novo claims of insufficient evidence. Our standard of review in evaluating the sufficiency of the evidence supporting a conviction after a bench trial is whether the finding of guilt is supported by substantial evidence. To uphold a conviction, there must be substantial evidence that the Government proved each element of the offense beyond a reasonable doubt. The evidence will be viewed in the light most favorable to the judgment to determine whether a reasonable trier of fact could have found the evidence proved guilt beyond a reasonable doubt. The standard of review is the same for both direct and circumstantial evidence, but when relying on circumstantial evidence, every link on the chain of inferences must be clearly established.
United States v. Mathes, 151 F.3d 251, 252 (5th Cir. 1998).
United States v. Galvan, 693 F.2d 417, 419 (5th Cir. 1982).
United States v. Reeves, 782 F.2d 1323, 1326 (5th Cir. 1986).
Galvan, 693 F.2d at 419; United States v. Jackson, 700 F.2d 181, 185 (5th Cir. 1983).
ANALYSIS
Appellant challenges her conviction on the ground that the Government did not prove beyond a reasonable doubt that she was operating a motor vehicle in a public place while intoxicated. Appellant admits to operating a motor vehicle in public, but challenges the sufficiency of the evidence as to her intoxication. Intoxication can be proved in two ways: by showing (1) that the Appellant's blood alcohol level exceeded .08, or (2) that Appellant did not have the normal use of her mental or physical faculties by reason of alcohol consumption. Although Appellant's blood alcohol level cannot be determined, there is evidence sufficient to prove beyond a reasonable doubt that Appellant lacked the normal use of her mental and physical faculties by reason of alcohol.I. SUFFICIENCY OF EVIDENCE
When viewed in the light most favorable to the judgment, there is sufficient evidence to prove beyond a reasonable doubt that Appellant had lost normal use of her mental and physical faculties. Upon Appellant's arrival at the Walters Street gate, two officers, Sergeant Cowart and Sergeant Conaway, both testified to the odor of alcohol emanating from Appellant, and both felt that she was unable to operate a motor vehicle. Sergeant Conaway proceeded to administer field sobriety tests, consisting of the HGN test, walk and turn test, and one leg stand test, none of which Appellant was able to pass. Sergeant Conaway also testified to Appellant's behavior of laughing loudly throughout the testing. Odor of alcohol and inability to pass field sobriety tests have been considered by Courts to be sufficient evidence to prove beyond a reasonable doubt that an individual is intoxicated.
Ford v. State 129 S.W.3d 541, 551 (Tex.App. 2003).
Intoxilyzer or breath tests are preferable to circumstantial evidence and reasonable inferences, but if blood alcohol levels are unavailable from certified officers such as Sergeant Conaway, inferences may be used to determine whether Appellant was without normal use of her faculties due to alcohol consumption. Viewed in totality, failure on field sobriety tests, odor of alcohol, and odd behavior constitutes sufficient evidence that proves beyond a reasonable doubt that Appellant lacked normal use of her faculties from alcohol consumption.
Scherlie v. State 689 S.W.2d 294, 296 (Tex.App. 1985).
Orrick v. State 36 S.W.3d 622, 624 (Tex.App. 2000).
II. CREDIBILITY
A certified officer's testimony and credibility is not easily disregarded by the Courts. Appellant asserts that Sergeant Conaway's administration of field sobriety tests is invalid. First, Appellant contests Sergeant Conaway experience because he was certified only nine days before administering the sobriety tests to Appellant. Second, Appellant challenges validity because she was asked to walk an imaginary line during the walk and turn portion of the test. Appellant's assertions fail on both counts.
Once an officer is certified, any field sobriety test administered is considered reliable and valid. Texas courts have ruled it unnecessary to have express testimony identifying the authority by which a law enforcement officer is "certified" to conduct such examinations. Sergeant Conaway gave express testimony identifying his authority, and although he was certified for a short period of time, his administration of field sobriety tests is valid.
Epperson v. State, 578 S.W.2d 398, 399 (Tex.Crim.App. 1979).
Appellant attempts to undermine Sergeant Conaway's credibility by showing a discrepancy in his report and his sworn testimony. Sergeant Conaway listed in his report of field sobriety tests that Appellant had smooth pursuit in both eyes, but he later testified that she lacked such pursuit. Although inconsistent, Sergeant Conaway's credibility will not be undermined by a small mistake. An officer's sworn testimony has been relied upon by Texas courts as sufficient to sustain conviction in similar Driving Under the Influence cases.
Wagner v. State, 720 S.W.2d 827, 830 (Tex.App. 1986).
In addition, Appellant asserts error in the administration of the walk and turn portion of field sobriety tests because Sergeant Conaway required her to walk an imaginary straight line instead of an actual line as guidance. There is no law asserting the need for a neutral base line during sobriety testing. Even if such a line were necessary, such an error on Sergeant Conaway's part would be harmless.
Appellant also uses a study of Dr. Spurgeon Cole to contend that the walk and turn test may give false conclusions. The evidence of intoxication found by field sobriety tests is cumulative. According to Sergeant Conaway's testimony, Appellant failed all portions of the sobriety tests, so even if the walk and turn portion were to be disregarded, the totality of the evidence is sufficient to convict Appellant.
McRae v. Texas, 152 S.W.3d 739, 745 (Tex.App. 2004).
Appellant argues that she failed field sobriety tests because she was suffering from an extreme headache and not because she was intoxicated. Although headaches may disorient a person and make it more difficult to perform on sobriety tests, Appellant performed so poorly that evidence supports the conclusion that she was intoxicated. Also, Appellant's behaviors of laughing during sobriety testing, drinking, and going to a karaoke bar are inconsistent with behaviors displayed by people suffering from extreme or migraine headaches. Based on the evidence provided, there is sufficient evidence to uphold the Magistrate Judge's determinations of credibility on the part of Sergeant Conaway and lack of credibility on the part of Appellant.
CONCLUSION
The Court finds that the Magistrate Judge was correct in convicting Appellant for violation of Title 18 U.S.C § 13 (Involving § 49.04 of the Texas Penal Code). There is sufficient evidence to show that the Government proved beyond a reasonable doubt that Appellant was intoxicated while driving a motor vehicle in a public place. Sergeant Conaway's testimony regarding Appellant's failure during field sobriety tests and her overall behavior is sufficient to uphold the conviction.
Accordingly, Appellant's Appeal (Docket No. 5) is DENIED and conviction is AFFIRMED.
It is ORDERED that the United States Magistrate's Decision be AFFIRMED.
It is so ORDERED.