COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-366-CR
MICHAEL SEAN LEWIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two points, Appellant Michael Sean Lewis appeals his conviction for
felony driving while intoxicated (DWI).2 We affirm.
1
… See T EX. R. A PP. P. 47.4.
2
… See T EX. P ENAL C ODE A NN. § 49.09(b)(2) (Vernon Supp. 2007) (stating
that DWI is a felony if the defendant has two previous DWI convictions).
II. Factual and Procedural History
In the early hours of March 2, 2005, Fort W orth Police Officer Deena
Evans stopped Lewis on Camp Bowie for speeding and for failing to wear a
seatbelt. Rather than pull over to the curb, Lewis stopped his car in a left-turn
lane. Officer Evans testified that when she asked Lewis for his driver’s license
and proof of insurance, she smelled alcohol coming from him and noticed his
bloodshot eyes and slurred speech. When Officer Evans asked Lewis from
where he had come, he said, “Katie Lynn’s,” a bar. When she asked him if he
had been drinking, he said, “I had some.” Officer Evans had Lewis exit his car
and as he did so, she noticed that his balance was swayed and unsteady. She
had Lewis perform numerous sobriety tests; after he failed several of them,
Officer Evans arrested him. At the police station, Lewis performed additional
sobriety tests and agreed to submit a breath sample for alcohol analysis.
A jury convicted Lewis of driving while intoxicated and felony repetition 3
and assessed punishment at seven years’ imprisonment and a $6,000 fine. The
trial court sentenced Lewis to eight years’ community supervision. This appeal
followed.
3
… At trial, both parties stipulated that Lewis had two prior DWI
convictions.
2
III. Factual Sufficiency
In his second point, Lewis claims that the evidence presented at trial was
factually insufficient to support his conviction.
A. Standard of Review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the fact-finder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
3
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the fact-
finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the fact-finder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9. An opinion addressing factual sufficiency must include a
discussion of the most important and relevant evidence that supports the
appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.
Crim. App. 2003).
B. Analysis
Lewis argues that the evidence presented at trial was factually insufficient
to support his conviction because the video recording of Officer Evans’s initial
encounter with Lewis on Camp Bowie did not show that he was intoxicated.
4
According to Lewis, Officer Evans’s claim at trial that Lewis had swayed and
weaved during their encounter was not supported by the video recording.
Lewis argues that this video recording, which was taken “within minutes of his
operation of a vehicle,” has greater evidentiary weight than the breath tests
that were taken over an hour later.
Lewis is correct that the video recording of Officer Evans’s initial
encounter with him does not unequivocally show that Lewis was intoxicated.
Equally important, however, is that the recording, with its poor lighting and
grainy, relatively small images of Officer Evans and Lewis, does not
unequivocally show that Lewis was not intoxicated.
Even more importantly, Lewis fails to address in any detail Officer Evans’s
trial testimony. Officer Evans testified that after she pulled Lewis over and
began speaking to him, she noticed the smell of alcohol coming from him, and
she also noticed that his eyes were bloodshot and watered and that his speech
was slurred. She subsequently asked Lewis to get out of the car and, as he did
so, he stumbled over a street median.4 After Lewis was out of his car and
Officer Evans began speaking with him, she noticed that his balance was
“swayed and unsteady” and that, as he walked to the rear of his vehicle, “his
4
… The video recording also shows this.
5
walk was swayed, staggered and unsteady” and “[h]is speech was slurred.”
She then administered three field-sobriety tests. First, she administered the
horizontal gaze nystagmus (HGN) test and found a total of six clues—three in
each eye.5 She then administered the walk-and-turn test and found that Lewis
exhibited three clues. Finally, she administered the one-leg stand and found
that Lewis exhibited one clue. She then arrested him for DWI.
Giving due deference to the jury’s determinations of Officer Evans’s
demeanor and credibility, we cannot say that the evidence of Lewis’s
intoxication when he was pulled over by Officer Evans is so weak that the
verdict is clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at
414–15, 417; Johnson, 23 S.W.3d at 11. Thus, we hold that the evidence is
factually sufficient to support Lewis’s conviction. We overrule Lewis’s second
point.
IV. “Per Se” Theory of Intoxication
In his first point, Lewis argues that the trial court erred when it submitted
to the jury the “per se” theory of intoxication. In its indictment, the State
alleged that Lewis had “operate[d] a motor vehicle in a public place while [he]
5
… When asked by the State how many clues indicate intoxication,
Officer Evans answered, “Six—well, four.”
6
was intoxicated by not having the normal use of his mental or physical faculties
by reason of the introduction of alcohol into his body or by having an alcohol
concentration of at least 0.08.” 6 After the State rested its case, Lewis moved
for a directed verdict on the portion of the indictment that alleged that Lewis
had a blood-alcohol concentration of 0.08. The trial court denied the motion.
In its charge to the jury, the trial court defined “intoxicated” as “(A) not
having the normal use of one’s mental or physical faculties by reason of the
introduction of alcohol into the body; OR (B) having an alcohol concentration
of 0.08 or more.” The charge authorized the jury to find Lewis guilty if it
found, among other things, that Lewis had been operating a motor vehicle while
he “was intoxicated by not having the normal use of his mental or physical
faculties by reason of the introduction of alcohol into his body or by having an
alcohol concentration of at least 0.08.” Lewis objected to the jury instruction
6
… The indictment also included a second paragraph alleging that Lewis
had
operate[d] a motor vehicle in a public place while [he] was
intoxicated by not having the normal use of his mental or physical
faculties by reason of the introduction of alcohol, or by having an
alcohol concentration of at least 0.08, a controlled substance, a
drug, a dangerous drug, or a combination of two or more of these
substances into his body.
The State subsequently abandoned this paragraph.
7
on the “per se” theory because the State had failed to present sufficient
evidence, i.e., evidence of Lewis’s blood-alcohol content at the time that he
operated his vehicle, to support the “per se” theory. The trial court overruled
his objection.7
A. Standard of Review
7
… The State argues that because Lewis’s claim of jury-charge error is
based on his motion for a directed verdict, “this court should limit its review to
the denial of said motion.” But the following exchange between Lewis’s
attorney and the trial court makes clear that Lewis specifically objected to the
jury charge—it was the trial court that linked Lewis’s jury-charge objection to
his motion for a directed verdict:
[Trial Court]: . . . I understand the Defense objects to the two
phrases in the charge which define the .08 theory and apply in the
application paragraph.
Based on the Court’s failure to grant the directed verdict,
other than the objection to those two parts of the charge, do you
have any other objections to the charge?
[Lewis’s Attorney]: No. Other than those, we don’t.
[Trial Court]: All right. Any requested charges that were not
granted? I did put the Fifth Amendment in there for you already.
[Lewis’s Attorney]: No.
[Trial Court]: Then the objection to the .08 language is still
overruled.
8
Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we
must determine whether error occurred. If so, we must then evaluate whether
sufficient harm resulted from the error to require reversal. Id. at 731–32. Error
in the charge, if timely objected to in the trial court, requires reversal if the error
was “calculated to injure the rights of [the] defendant,” which means no more
than that there must be some harm to the accused from the error. T EX. C ODE
C RIM. P ROC. A NN. art. 36.19 (Vernon 2006); see also Abdnor, 871 S.W.2d at
731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g). In other words, a properly preserved error will require reversal as
long as the error is not harmless. Almanza, 686 S.W.2d at 171. In making this
determination, “the actual degree of harm must be assayed in light of the entire
jury charge, the state of the evidence, including the contested issues and
weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id.; see also Ovalle
v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).
B. Analysis
Lewis argues that the trial court erred when it submitted to the jury the
“per se” theory of intoxication.
Texas law defines ”intoxicated” as
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not having the normal use of mental or physical faculties by reason
of the introduction of alcohol, a controlled substance, a drug, a
dangerous drug, a combination of two or more of those
substances, or any other substance into the body; or . . . having an
alcohol concentration of 0.08 or more.
T EX. P ENAL C ODE A NN. § 49.01(2) (Vernon 2003). The first definition is known
as the “impairment” theory of intoxication; the second is known as the “per se”
theory of intoxication. Bagheri v. State, 119 S.W.3d 755, 756 n.1 (Tex. Crim.
App. 2003). These two theories of intoxication do not involve separate
violations of the law. Id. at 762. They set forth “alternate means by which the
State may prove intoxication, rather than alternate means of committing the
offense.” Id. When a trial court submits alternate means of committing an
offense, the evidence is sufficient to support a general verdict of “guilty” if it
is sufficient to prove any one of the alleged means. Id.; Reardon v. State, 695
S.W.2d 331, 334 (Tex. App.—Houston [1st Dist.] 1985, no pet.).
Given the testimony of Officer Evans, the evidence submitted at trial was
both legally and factually sufficient to prove the first definition of “intoxicated,”
which was also submitted to the jury. That is, the evidence was sufficient to
establish that Lewis did “not hav[e] the normal use of mental or physical
faculties by reason of the introduction of alcohol.” See T EX. P ENAL C ODE A NN.
10
§ 49.01(2)(A). Thus, the evidence was sufficient to support the jury’s general
verdict of “guilty.”
It is true that in its arguments to the jury, the State pointed out that the
jurors did not need to be unanimous in deciding in which manner Lewis was
intoxicated, i.e., not having normal use of mental faculties, not having normal
use of physical faculties or blood-alcohol content of at least 0.08. But it is also
true that in these same arguments, the State emphasized Officer Evans’s
testimony regarding her encounter with Lewis at least as much as it emphasized
the evidence concerning Lewis’s blood-alcohol content. Thus, assuming,
without deciding, that the trial court erred by including the “per se” theory of
intoxication in the jury charge, we conclude that any charge error was
harmless. See Almanza, 686 S.W.2d at 171; Ovalle, 13 S.W.3d at 786. We
overrule Lewis’s first point.
V. Conclusion
Having overruled both of Lewis’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL F: MCCOY, HOLMAN, and GARDNER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
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DELIVERED: June 12, 2008
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Michael Sean Lewis v. State
Combined Opinion