Opinion issued December 30, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00325-CR
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Rory Clifford ellis, Appellant
V.
THE State of Texas, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas*
Trial Court Case No. 08-05110
MEMORANDUM OPINION
A jury convicted appellant Rory Clifford Ellis of felony driving while intoxicated. See Tex. Penal Code Ann. §§ 49.04 (a), 49.09(b)(2) (Vernon 2003 & Supp. 2010). The jury assessed punishment at eight years’ imprisonment and a $5,000 fine. Ellis appeals, claiming the State presented insufficient evidence to support the jury’s verdict. We affirm.
Background
Ellis was arrested for driving while intoxicated after he struck complainant Janie Corley’s parked car in front of a service station. Prior to the accident, Ellis spent the morning with his mother who testified that they were together from 8:30 a.m. to approximately 10:00 a.m. She did not observe him consuming alcoholic beverages. She stated that she had previously seen Ellis intoxicated and that he did not appear to be intoxicated on that morning.
Brad Carr testified that Ellis came to his home around 10:00 a.m., and that he did not appear to be intoxicated. Carr did not see Ellis consume any alcoholic beverages. The two talked and listened to the radio for a couple of hours before Ellis offered to drive Carr to see his daughter. On the way, they stopped at a service station. Carr testified that he purchased two caffeinated alcoholic beverages for himself.
While inside the convenience store Ellis spoke to his uncle, Roy Reed, who was there buying milk. Reed testified that he had previously seen Ellis intoxicated and that he did not appear intoxicated when they spoke.
Meanwhile, Corley pulled her vehicle up to the gas pump. She observed numerous people driving into and out of the service station parking lot and entering and leaving the convenience store on the premises. While Corley was pumping gas, Ellis and Carr left the store. Ellis backed out of a parking space and struck Corley’s car at the pump. After the accident, Corley asked Ellis to show her proof of his insurance. Ellis offered his driver’s license and proceeded to look for his insurance documentation. When he did not immediately produce it, Corley grew worried and called her son, State Trooper T. Smith. Corley did not observe Ellis slurring his speech, stumbling, or leaning against his vehicle for balance. She testified that she spoke with Ellis at a distance of approximately 5 feet and did not notice the smell of alcohol on his breath. She further testified that she had previously observed intoxicated people and that Ellis did not appear to be intoxicated at the time of the accident.
Smith was on duty at the time he received his mother’s call, and he arrived approximately 10 to 15 minutes later. He conducted a crash investigation and interviewed both drivers. He smelled an alcoholic odor on Ellis’s breath and asked if he had consumed any alcohol. Ellis initially responded that he had not had anything to drink but then admitted that he had consumed some alcohol earlier that morning. Based on this statement and the odor of alcohol, Smith conducted a field sobriety test.
Smith is trained to recognize signs of intoxication and to conduct field sobriety tests. He administered the Horizontal Gaze Nystagmus test, which he testified is designed to measure involuntary eye movements caused by the consumption of alcohol, among other things. He further testified that officers administering this test are trained to look for 3 clues—lack of smooth pursuit, nystagmus present at maximum deviation, and onset of nystagmus prior to 45 degrees—which can be present in each eye, for a total of 6 clues. He recorded 4 out of 6 clues, specifically “a lack of smooth pursuit present in both eyes and . . . distinctive sustained nystagmus present at maximum deviation in both eyes.”
Smith then conducted two further field sobriety tests: the walk and turn and the one-legged stand. Ellis showed signs of intoxication during both tests. Smith testified that Ellis could not maintain his balance during the instructional phase of the walk-and-turn test; he started before being told to do so; several of his steps were not heel-to-toe or on the line; and he made an improper turn. During the one-legged stand Ellis used his arms for balance, had a circular sway while balancing, and put his foot down several times.
Based on the totality of clues gathered during the field sobriety tests, Smith concluded that Ellis was intoxicated and arrested him for driving while intoxicated. Smith offered Ellis an intoxilyzer breath test, which he refused. Ellis was convicted by a jury of felony driving while intoxicated. The jury assessed punishment at 8 years in prison and a $5,000 fine. Ellis filed a timely notice of appeal.
Analysis
A person is guilty of driving while intoxicated “if the person is intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a). Driving while intoxicated is a felony of the third degree if it is shown at trial that the defendant has previously been convicted “two times of any other offense relating to the operating of a motor vehicle while intoxicated . . . .” Id. § 49.09(b)(2). In three issues, Ellis contends that the evidence is insufficient to support a conviction for felony driving while intoxicated.
We review the sufficiency of evidence to support a criminal conviction to determine “whether, after viewing the evidence in the light most favorable to the prosecution, 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); Brooks v. State, 323 S.W.3d 893, 894–95 (plurality op.), 926 (Cochran, J., concurring) (Tex. Crim. App. 2010).
I. Public place
Ellis’s first and second issues specifically challenge the legal sufficiency of the evidence to support a single element of the offense of felony driving while intoxicated—that he committed the alleged offense “in a public place.” Based on that contention, he argues generally that the evidence was insufficient to support a guilty verdict and specifically that the trial court should have granted his motion for instructed verdict. We construe a challenge to a trial court’s denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003). We therefore apply the same analysis to both of these issues.
A public place is “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.” Tex. Penal Code Ann. § 1.07 (a)(40) (Vernon Supp. 2010). The list of places described in the statute is non-exclusive. See Loera v. State, 14 S.W.3d 464, 467 (Tex. App.—Dallas 2000, no pet.). The relevant inquiry is whether the public has any access to the area. Tex. Penal Code Ann. § 1.07(a)(40); see Loera, 12 S.W.3d at 467.
In State v. Nailor, 949 S.W.2d 357 (Tex. App.—San Antonio 1997, no pet.), the court concluded that a hotel parking lot that was open to the public 24 hours a day constituted a public place. See Nailor, 949 S.W.2d at 359. The court reached this conclusion because the hotel solicited the public to use the parking lot and there was evidence that individuals and business people regularly parked in the garage. See id. Likewise, in Kapuscinski v. State, 878 S.W.2d 248 (Tex. App.—San Antonio 1994, writ ref’d), the court held that the parking lot of two nightclubs was a public place, based upon testimony that the parking lot was provided for guests of the nightclub, which was open to the public, and that a large crowd had gathered at the entrance to the club. See Kapuscinski, 878 S.W.2d at 250.
Ellis correctly notes that neither Corley nor Smith specifically testified that the parking lot was a public place. But the evidence showed that Ellis was arrested at a gas station located at the intersection of two public roads. Corley testified that when she pulled into the service station, “there were several people pumping gas, people going in and out of the convenience store . . . .” Both Carr and Reed testified that they purchased items at the convenience store located on the premises. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have determined beyond a reasonable doubt that that the parking lot of a service station, to which the public had unfettered access, was a public place within the meaning of the statute. See Kapuscinski, 878 S.W.2d. at 250 (mall parking lot); Thibaut v. State, 782 S.W.2d 307, 308–09 (Tex. App.—Eastland 1989, no writ) (condominium parking lot); Kindle v. State, No. 05-01-01818-CR, 2003 WL 22707234, at *2 (Tex. App.—Dallas Nov. 18, 2003, no pet.) (mem. op., not designated for publication) (hotel parking lot). We hold that the evidence in not legally insufficient to show that the alleged offense occurred in a public place, and we overrule Ellis’s first and second issues.
II. Credibility of witnesses
Ellis’s third issue contends that the jury improperly weighed the credibility of Smith’s testimony that Ellis was intoxicated as compared to contradictory testimony by Corley and other witnesses presented by the defense. On this basis, he challenges the factual sufficiency of the evidence.
We apply the Jackson v. Virginia standard of review to this argument on appeal, and determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 894–95 (plurality op.), 926 (Cochran, J., concurring). The jury is the exclusive judge of the facts. Tex. Crim. Proc. Code Ann. arts. 36.13, 38.04 (Vernon 2007 & 1979); Brooks, 323 S.W.3d at 899. Accordingly, “[a]ppellate courts should afford almost complete deference to a jury’s decision when that decision is based upon an evaluation of credibility.” Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). “The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on the cold record.” Id.
Ellis argues that the testimony of the State’s witnesses was inconsistent and that the weight of all of the evidence presented at trial supports the conclusion that he was not intoxicated. He also argues that the jurors did not properly account for Smith’s alleged bias when they weighed the credibility of his testimony.
There was evidence to suggest that Ellis was not intoxicated. Corley testified that she did not smell alcohol on Ellis’s breath and that he did not appear intoxicated. Carr and Reed both testified that they had previously seen Ellis intoxicated and that at the time of his arrest he was not slurring his speech and did not appear intoxicated. In contrast, however, Smith testified that he smelled alcohol on Ellis’s breath and observed several other indicators of possible intoxication, including blood-shot eyes. Smith’s testimony that Ellis admitted consuming alcohol earlier that morning was uncontroverted.
The field sobriety tests also indicated intoxication. Four out of six possible clues were present when Smith administered the horizontal gaze nystagmus test. During the walk and turn, Ellis started the task before being told to do so, could not maintain his balance during the instruction phase, stepped off the line several times, did not step heel-to-toe several times, and made an improper turn. Ellis also used his arms for balance, swayed in a circular motion, and put his foot down several times during the one-legged stand.
While Corley, Carr, and Reed testified that Ellis did not appear intoxicated, the video corroborates Smith’s testimony, and in any event, Ellis failed the field sobriety test. Furthermore, Smith was also cross-examined on the subject of his alleged bias. He confirmed that Corley was his mother, and he testified that at the time of the arrest he was aware of the potential appearance of bias. He stated that he attempted to have another trooper dispatched to the scene, but that there was only one other trooper on duty that day, and she was already dispatched to another accident. With respect to the administration of the field sobriety tests, he testified that the tests are standardized and that he followed regular procedures.
Ellis’s factual-sufficiency challenge is entirely based on the credibility of the witnesses and the weight given to their testimony—issues upon which this court must defer to the factfinder. See Lancon, 253 S.W.3d at 705. Notwithstanding any potential bias, Smith’s testimony would be sufficient to sustain Ellis’s conviction because the jury is free to believe or disbelieve the testimony of any witness in whole or in part. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979); McKinny v. State, 76 S.W.3d 463, 468–69 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Considering all of the evidence in the light most favorable to the verdict, we conclude that the jury could have found beyond a reasonable doubt that Ellis committed all of the essential elements of driving while intoxicated. See Soutner v. State, 36 S.W.3d 716, 721–722 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (holding that evidence of intoxication was legally sufficient where defendant failed field sobriety test and arresting officer testified that he smelled alcohol on defendant’s breath). We therefore hold that the evidence is factually sufficient to sustain the jury’s guilty verdict.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).
* The Texas Supreme Court transferred this appeal from the Court of Appeals for the Ninth District of Texas. Misc. Docket No. 09-9049 (Tex. Apr. 13, 2009); see Tex. Gov’t Code Ann. § 73.001 (Vernon 2005) (authorizing transfer of cases). We are unaware of any conflict between the precedent of the Court of Appeals for the Ninth District and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.