In The
Court of Appeals
For The
First District of Texas
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NO. 01-01-00982-CR
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SAID AIL HASSAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 870113
MEMORANDUM OPINIONA jury found appellant guilty of the felony offense of driving while intoxicated, and the trial court assessed punishment at six years’ confinement. In two points of error, appellant argues that (1) the trial court erred in overruling his objection to testimony that he alleges is irrelevant, and (2) the evidence was factually insufficient to support his conviction. We affirm.
Admission of Evidence
In his first point of error, appellant argues that the trial court erred in overruling his objection to testimony that he alleges is irrelevant. The admission and exclusion of evidence is committed to the trial court’s sound discretion and will not be reversed absent an abuse of discretion. Goff v. State, 931 S.W.2d 537, 553 (Tex. Crim. App. 1996). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles, or in other words, when the act was arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. All relevant evidence is admissible unless excluded by the Constitution, by statute, by the Texas Rules of Evidence, or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 402.
Appellant argues that the trial court erred in overruling his objection to the relevancy of a probation officer’s testimony concerning the general practices of the judge who presided over appellant’s 1998 DWI conviction. In resolving this issue we now consider the relevant facts. On direct examination, appellant was asked to explain the contradiction between the fact that he was twice convicted of DWI in 1994, and the fact that his religion prohibits the consumption of alcohol. Appellant explained that the convictions happened a long time ago, he had made a mistake, Allah forgives sins, and “[w]e have to stop and not do it again.” On cross-examination, the State impeached appellant by asking him if he had received probation after pleading guilty to a DWI in 1998. On redirect examination, appellant testified that, although he pled guilty to DWI in 1998, he was innocent of that charge and did not know what he was signing when he signed the plea papers. On recross-examination, appellant testified that he did not read the admonishments, he did not know what he was signing, and “nobody explained [the paperwork] to me.” The State then called Susan Orendac, a probation officer who was assigned to the court in which appellant pled guilty to the 1998 DWI charge. The probation officer testified that, in her experience, the judge who presided over appellant’s case explained to every defendant the charge and the plea agreement Appellant objected on relevancy grounds and the trial court overruled the objection. Appellant now contests the trial court’s ruling on that objection.
A defendant who testifies at trial places his credibility at issue. Hammett v. State, 713 S.W.2d 102, 105 (Tex. Crim. App. 1986). The Court of Criminal Appeals has held that when an accused testifies gratuitously as to some matter that is irrelevant or collateral to the proceeding, he may be impeached by a showing that he has lied or is in error as to that matter. Id. Such evidence is admissible in order to determine the credibility of the witness and the weight to be given to his testimony, and to rebut his testimony. Pina v. State, 38 S.W.3d 730 (Tex. App.—Texarkana 2001, pet. ref’d.).
The evidence was relevant to appellant’s credibility because it contradicted his testimony that no one explained the plea to him and shed doubt on the veracity of his contention that he did not know what he was signing and did not understand the proceedings.
We overrule appellant’s first point of error.
Factual Sufficiency
In his second point of error, appellant contends that the evidence is factually insufficient to prove that he was driving while intoxicated. In reviewing the factual sufficiency of the evidence, we examine all the evidence neutrally, and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We will reverse the fact-finder’s determination only if a manifest injustice has occurred. Id. In conducting our analysis, we must also avoid substituting our judgment for that of the fact-finder. Id.
Appellant contends that the evidence is factually insufficient to prove that he was intoxicated while he was driving. In support of this contention, appellant argues that being a bad driver does not necessarily prove that he was intoxicated. Moreover, he testified that he never told the officers that he was drunk. Finally, appellant contends that the arresting officer’s testimony that it was highly possible that appellant did not know that he was being pursued by a police officer militates against finding that he was intoxicated.
Notwithstanding appellant’s arguments, there is factually sufficient evidence in the record to support the jury’s finding beyond a reasonable doubt that appellant was intoxicated. The arresting officer testified that he saw appellant violate several traffic laws including: failure to stop at red lights, failure to drive within a single lane (straddling both lanes of traffic), failure to stop once he hit a vehicle (reckless driving), unsafe lane changes (swerving), and improper stopping (stopping at green lights). Another officer testified that when he conducted a Horizontal Gaze Nystagmus test on appellant, appellant exhibited six out of six possible clues for intoxication. The officer further testified that these results indicated that appellant had consumed a high level of alcohol. A third officer testified that appellant’s speech was slurred and several other officers testified that appellant smelled like alcohol. Three officers also testified that they heard appellant admit that he was drunk.
After reviewing the evidence in a neutral light, we find that the evidence in support of the conviction is not so weak or greatly outweighed by contrary proof as to render the conviction clearly wrong and manifestly unjust.
We overrule appellant’s second point of error.Conclusion
We affirm the judgment of the trial court.
Adele Hedges
Justice
Panel consists of Justices Hedges, Jennings, and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).