COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00039-CR
BARCLAY EDWARD BERDAN II APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
TRIAL COURT NO. 1327699
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EN BANC MEMORANDUM OPINION 1
ON MOTIONS FOR REHEARING
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After reviewing appellant Barclay Edward Berdan II’s motion for rehearing
and motion for rehearing en banc, we deny the motions, withdraw our November
6, 2014 memorandum opinion and judgment, and substitute the following in their
place.
1
See Tex. R. App. P. 47.4.
I. BACKGROUND
Berdan went drinking with a friend in the West 7th Street area of Fort
Worth. While driving home, Berdan hit a light post in an intersection causing
the back of his truck to swing out, blocking a lane of traffic. Fort Worth Police
Officer Brian White saw the accident happen and approached the truck. White
testified that Berdan willingly stepped out of his car, and as Berdan got out, he
stumbled backward. Berdan had bloodshot eyes, and White could smell alcohol
on Berdan’s breath. Berdan admitted that he “had a couple of drinks” at a
nearby bar. After the initial observations of intoxication, White decided to
conduct a field-sobriety evaluation. 2 White twice asked Berdan to perform the
tests, but Berdan refused each time, without giving a reason. Believing that
Berdan had lost the normal use of his mental and physical faculties due to the
introduction of alcohol into his body, White arrested Berdan and took him to the
City of Fort Worth jail. 3 In the parking lot of the jail, White read Berdan the
required statutory warnings and asked Berdan to provide a breath sample. See
Tex. Transp. Code Ann. § 724.015 (West Supp. 2014). He refused. Berdan
would not sign the form indicating that he was refusing to provide a sample. A
2
There are three different tests that the Fort Worth Police Department
performs: the horizontal-gaze nystagmus, the walk and turn, and the one-leg
stand. [3 RR 77]
3
Before White took Berdan to the jail, MedStar EMS arrived to treat
Berdan. He had no injuries that would have prevented him from performing the
tests. The medical personnel noted, however, that Berdan smelled of alcohol
and that Berdan had admitted to drinking alcohol.
2
jury convicted Berdan of driving while intoxicated, and the trial court assessed
his punishment at ninety days’ confinement, probated for twenty-four months,
with a $600 fine. See Tex. Penal Code Ann. § 49.04 (West Supp. 2014).
II. SUFFICIENCY OF THE EVIDENCE
Berdan argues that the evidence was insufficient to show that he was intoxicated.
In our due-process review of the sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
Intoxication is statutorily defined as “not having the normal use of mental or physical
faculties by reason of the introduction of alcohol . . . or any other substance into the body.”
Tex. Penal Code Ann. § 49.01(2)(A) (West 2011). A person’s refusal of a request by an
officer to submit to the taking of a specimen of breath or blood, whether the refusal was
express or the result of an intentional failure to give the specimen, may be introduced into
evidence at the person’s trial and be considered as evidence of guilt. Tex. Transp. Code
Ann. § 724.061 (West 2011); Huffman v. State, No. 02-13-00175-CR, 2014 WL 3696132,
at *2 (Tex. App.—Fort Worth July 24, 2014, no pet.) (mem. op., not designated for
publication).
Berdan was driving erratically such that he drove his car into a light post. Berdan
was stumbling when he got out of the car and had bloodshot eyes. He admitted he had
been drinking. White testified that Berdan had lost the normal use of his physical and
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mental faculties due to alcohol consumption and that Berdan refused to provide a breath
sample. This evidence allowed the jury to draw the reasonable inference that Berdan was
intoxicated at the time he was driving; thus, the evidence was sufficient to support his
conviction for driving while intoxicated. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex.
Crim. App. 2010); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.]
2011, pet. ref’d); Coggins v. State, 160 S.W.3d 177, 180 (Tex. App.—Texarkana 2005, no
pet.). We overrule Berdan’s sole issue.
III. CONCLUSION
Having overruled Berdan’s issue, we affirm the trial court’s judgment. See Tex. R.
App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
EN BANC
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 22, 2015
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