Anthony Paschall v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-07-461-CR

ANTHONY PASCHALL APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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OPINION

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I. INTRODUCTION

Appellant Anthony Paschall appeals his conviction for felony driving while

intoxicated for which he was sentenced to twenty-five years’ imprisonment.

Paschall filed a brief alleging thirteen points of error and later filed documents

with this court in which he waived his fifth through eleventh points. In his

remaining six points, Paschall argues that the trial court erred by allowing the

admission of two exhibits, that the evidence introduced at trial was legally and
factually insufficient to prove that he had been convicted of the alleged

jurisdictional DWI enhancement paragraphs, and that the evidence was legally

and factually insufficient to support his conviction for driving while intoxicated.

We will affirm.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND

A. The State’s Witnesses

Karen Morgan testified that on June 14, 2007, she was driving

northbound on I-35E from Dallas to Denton and noticed an SUV moving slowly

near the exit for Corinth Parkway. As soon as Morgan passed the SUV, the

driver sped up, swerved, and almost hit the guardrail. Morgan noticed that

after this near miss, the driver of the SUV “slowed way down” and seemed to

drift into a different lane. Then, suddenly, the driver of the SUV sped up again

and drove in between the left and the right lanes, such that he was not in either

lane. The SUV appeared to come within four or five inches of Morgan’s

bumper, so she swerved a little bit because she thought it was going to hit her.

At that point, Morgan decided to call 9-1-1 because she thought the driver of

the SUV was going to cause an accident. Morgan stayed on the phone with

the 9-1-1 operator until she reached the Loop 288 exit, and during that time,

the SUV continued to drift back and then catch up. When Morgan exited at

Loop 288, she told the 9-1-1 operator that the SUV continued northbound, and

2
the operator told her that the police had been called. Morgan testified that she

did not see the driver drinking; however, she said that the driver’s continual

slowing down and speeding up made her think that he was tired or had been

drinking because the pattern was not like someone who was on a cell phone or

who was putting on makeup and made a sudden, quick swerve.

Officer Brian Coast with the City of Denton Police Department testified

that he was on his way to work on June 14, 2007, between 6:30 and 6:45

p.m. in his marked patrol car when he heard a fire department calling in about

a reckless driver that was headed in Officer Coast’s general direction. The

police dispatch immediately started to broadcast information about the reckless

driver. Three civilians had called to report the reckless driver, along with the

fire truck. The dispatch described the vehicle in question as an older model

dark-colored Ford Explorer with its headlights on and said that the vehicle was

heading northbound at State School Road. Officer Coast made a u-turn and

headed towards that area to intercept the vehicle.

Officer Coast spotted the vehicle—a dark Ford Explorer with its headlights

on—at the intersection of Teasley Lane; Officer Coast knew that it was the

vehicle in question because one of the callers had stayed on the phone with the

9-1-1 operator and continued to relay the location. Officer Coast was

southbound on Teasley Lane, so he moved into the right-turn lane in order to

3
get behind the vehicle. Officer Coast noted that the driver of the vehicle had

stopped in the intersection blocking two lanes of traffic. When the light turned

green, the vehicle passed Officer Coast, and Officer Coast moved in behind it.

Before Officer Coast could initiate a traffic stop, the driver of the vehicle pulled

into the parking lot at a 7-Eleven convenience store and parked.

Officer Coast pulled up behind the SUV and walked up to contact the

driver, who was the sole occupant in the vehicle. When Officer Coast walked

up, the driver was in the process of getting out of the vehicle. Officer Coast

saw that the driver was fumbling and struggling with the seat belt, which was

“hung up” on his arm. After the driver got out, Officer Coast noticed that the

driver’s shorts were unzipped. Officer Coast asked the driver for identification,

and the driver provided it, revealing that he was Anthony Paschall.

Officer Coast asked Paschall why his pants were undone, and he replied

that he was on his way from Dallas to Oklahoma and had an urgent need to

urinate. Officer Coast asked Paschall if he had consumed anything to drink or

if he had taken any medication, and Paschall said that he had not taken any

medications nor consumed anything to drink. Officer Coast did not smell

alcohol on Paschall.

Officer Coast decided to initiate a DWI investigation because he had

noticed that Paschal’s speech was slurred and that he was swaying and

4
appeared to seek out something to hold onto to steady himself while they were

talking. At trial, Officer Coast explained the three field sobriety tests to the jury

and stated that the horizontal gaze nystagmus (HGN) test is important in a DWI

investigation because HGN is caused only by alcohol, depressants, inhalants,

PCP, or a brain stem injury. During the HGN test, Officer Coast noticed that

Paschall’s pupils were “very constricted” and that Paschall exhibited four clues

on the test, which was enough to indicate intoxication by an inhalant, a

depressant, or PCP.

Officer Coast then began to give Paschall the instructions for the walk-

and-turn test. Paschall, however, interrupted him and advised that he would

be unable to take the test because he had undergone surgery on his left foot.

Officer Coast omitted the walk-and-turn test and asked Paschall to perform the

one-leg stand after he had answered affirmatively when asked if he could stand

on one leg. After Paschall failed the test, he said that he had undergone

operations on both feet.

Officer Coast then asked Paschall what his highest level of education

was, and Paschall responded that he had earned an associate’s degree. Officer

Coast asked Paschall to recite the alphabet from D to Q, and Paschall said, “E,

F, G, H, Q.” Officer Coast asked Paschall to say the alphabet from beginning

5
to end, and Paschall said, “A, B, C, D, E, F, G, H, Q, Z.” Paschall responded

correctly when asked how many letters are in the alphabet.

Officer Coast moved on to the counting test and asked Paschall to count

backwards from fifty-six to twenty-seven. Paschall started counting forward,

so Officer Coast interrupted him and allowed him to start over. Paschall said

the number fifty twice and then asked Officer Coast to repeat the instructions

again. Paschall eventually started with fifty and counted backward slowly to

forty-two and stopped.

At that point, Paschall asked, “Where are we going with this?” Officer

Coast said that he was trying to determine Paschall’s level of intoxication, and

Paschall told Officer Coast to search his car. Officer Coast again asked Paschall

whether he had drunk anything, and Paschall responded this time that he had

consumed “one or two” that morning around 7 or 8 a.m. The search of the car

did not reveal any drugs or alcohol.

Officer Coast concluded that Paschall did not have the normal use of his

mental or physical faculties and that the cause for that was something other

than alcohol. Officer Coast arrested Paschall and took him to the Denton

County Jail. Officer Coast did not offer Paschall a breath test because that

tests only for alcohol. When Officer Coast offered Paschall a blood test, he

6
chose to have his license suspended for six months rather than consent to the

test.

On cross-examination, Officer Coast admitted that his observation of

Paschall’s driving before he pulled into the 7-Eleven did not match what had

been described on the radio; Paschall had pulled into a parking space

appropriately, exited his vehicle without stumbling or falling, and did not smell

like alcohol. Officer Coast admitted that, prior to the start of the HGN test, the

sun was in Paschall’s eyes, but Officer Coast asked Paschall to move to a

shaded area in order to properly perform the HGN test. Officer Coast testified

that the walk-and-turn test is not a good indicator for people who are fifty or

sixty, those who are more than fifty pounds overweight, and those who have

physical disabilities or injuries.

Officer Coast testified that Paschall did not sway while he was standing

in the Intoxilyzer room at the jail; however, he noted that Paschall had propped

himself up against the wall, braced himself against the wall with his hand, and

put his feet shoulder-width apart, which provided a stable platform. Officer

Coast said that he performed the vertical nystagmus test, in addition to the

HGN test, on Paschall and that he did not see any vertical nystagmus, which,

if present, can indicate drug use or extremely high doses of alcohol.

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 Jeremy Hunter, a detention officer with the Denton Police Department,

testified that he booked Paschall into the jail on June 14, 2007, and that

Paschall provided an emergency contact number. When Hunter completed the

medical screening on Paschall, Paschall said that he took Celexa, Trazodone,

and Thorazine 1 and gave his birth date as January 13, 1956.

Melissa Giguere testified that she works in the computer support division

at the sheriff’s office. She said that the majority of the inmates in the Denton

County Jail are housed in pods—open rooms without walls that have bunk beds

lining the sides of the rooms. The pods contain telephones for use by the

inmates. She oversees the recording of the phone calls placed by the inmates

on the pod phones. She explained that each inmate is assigned a PIN to use

when making phone calls and that a recording tells the inmate that the phone

call will be recorded.

1
… Sam Tipton, a pharmacist, testified that Thorazine is an antipsychotic
agent and is an example of a central nervous system depressant. Tipton said
that Trazadone is also a central nervous system depressant. If a person was
intoxicated by one of these two substances, they would exhibit slurred speech,
their balance would be affected, their gait would not be normal when they
walked, their pupils could be constricted, and it would be dangerous for them
to drive. On cross-examination, Tipton testified that he would need to know
the dosage and the frequency of the dosage, the time of the last dose, and
whether food had been consumed in order to gauge whether the person was
intoxicated by these drugs.

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 She searched the system for all phone calls made using Paschall’s PIN

and transferred them to a CD. She noted that the phone calls at issue were

made to a number similar to Paschall’s emergency contact number.

The jury heard the recording of a phone call made using Paschall’s PIN.

During the phone call, Paschall said “they” were trying to use a charge of DWI

to enhance and turn the current DWI into a felony.2 Paschall said that “they”

have to find three DWIs where the pictures and fingerprints match up and that

“they” never fingerprinted or photographed him on the two DWIs he committed

in Brownsville.

Before the State rested its case in chief, the trial court took judicial

notice, upon the State’s request, that Brownsville is the county seat of

Cameron County, Texas. The trial court also admitted, over defense’s

objection, State’s Exhibit 5 and State’s Exhibit 6, which contained judgments

for two prior DWI convictions for Anthony Dean Paschall.

B. Paschall’s Witness

Paschall called Captain Douglas Sanders to testify. Sanders, the Denton

County Correctional Facility Health Director who oversees the access and

2
… Although the State in its brief indicates that Paschall identified his
attorney as Daniel Peugh, the record before us—State’s Exhibit 3 from 01:22-
01:57—does not indicate that the part of the recording containing that
information was played for the jury.

9
delivery of mental and medical healthcare for adults and juveniles, testified that

Paschall was treated for problems with a disk in his back while he was in the

Denton County Jail. Sanders testified that Paschall’s medical records revealed

that he has a degenerative back disease and a congenital disk fusion and that

his course of care included anti-inflammatories and muscle relaxants. Sanders

testified that Paschall’s back problems could affect his balance and

coordination. Sanders said that the mental health authorities had listed Paschall

as bipolar.

On cross-examination, Sanders testified that the medical records showed

that Paschall had undergone a left Achilles reconstruction in 1996 but did not

reference an injury to the right foot. Sanders testified that during the year that

Paschall had been in jail, he had not exhibited any problem “getting around.”

Sanders said that the medical records demonstrated that Paschall was an

alcoholic and was addicted to or an abuser of prescription drugs. The records

contained notations that Paschall could not have any more refills on drugs

because he was overtaking them and constantly trying to get more prescription

drugs. The records revealed that Paschall was taking Klonopin, a drug in the

benzodiazepine family that has a synergistic effect with alcohol. On redirect,

Sanders testified that the medical records regarding the benzodiazepine drugs

10
dated back to 2005 and 2006 and that the prescribing doctors took steps to

change his medications to get him off those drugs.

C. Outcome of Trial

After hearing the above testimony, the jury found Paschall guilty of the

felony offense of driving while intoxicated as alleged in the indictment and

assessed his punishment at twenty-five years’ confinement. The trial court

accepted the jury’s verdict and sentenced Paschall in accordance with the jury’s

recommendation. This appeal followed.

III. S TANDARDS OF R EVIEW

In his first four points, Paschall challenges both the admission of the

exhibits, as well as the sufficiency of the evidence to prove that he was the

same person who was convicted of the prior DWIs shown in the exhibits. In

his twelfth and thirteenth points, Paschall challenges the sufficiency of the

evidence to prove that he was intoxicated at the time he was arrested on the

2007 DWI charge. We will therefore apply the abuse of discretion standard of

review and the legal and factual sufficiency standards of review set forth below

where they are applicable.

A. Abuse of Discretion

We review a trial court’s decision to admit evidence under an abuse of

discretion standard. Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App.

11
1996), cert. denied, 520 U.S. 1200 (1997); Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1991) (op. on reh’g). As long as the trial court’s

ruling falls within the zone of reasonable disagreement, we will affirm its

decision. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The

trial court’s decision must be reasonable in view of all the relevant facts.

Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). The mere

fact that a trial court may decide a matter within its discretionary authority in

a different manner than an appellate court would in a similar circumstance does

not demonstrate that an abuse of discretion has occurred. Manning v. State,

114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

B. Legal Sufficiency

In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

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); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

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319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568

(Tex. Crim. App. 2008). Thus, when performing a legal sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.

Crim. App. 2007). We must presume that the factfinder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

The sufficiency of the evidence should be measured by the elements of

the offense as defined by the hypothetically correct jury charge for the case.

Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008); Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would be one

that accurately sets out the law, is authorized by the indictment, does not

unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant was tried. Gollihar v. State, 46

13
S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953 S.W.2d at 240.

However, we may not affirm a conviction based on legal or factual grounds that

were not submitted to the jury. Malik, 953 S.W.2d at 238 n.3. The law as

authorized by the indictment means the statutory elements of the charged

offense as modified by the charging instrument. See Curry v. State, 30 S.W.3d

394, 404 (Tex. Crim. App. 2000). The standard of review is the same for

direct and circumstantial evidence cases; circumstantial evidence is as probative

as direct evidence in establishing the guilt of an actor. Clayton, 235 S.W.3d

at 778; Hooper, 214 S.W.3d at 13.

C. Factual Sufficiency

When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

14
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

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

factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); 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, unless we conclude that it is

necessary to correct manifest injustice, we must give due deference to the

factfinder’s determinations, “particularly those determinations concerning the

15
weight and credibility of the evidence.” Id. at 9. Our deference in this regard

safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.

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).

Moreover, an opinion reversing and remanding on factual insufficiency grounds

must detail all the evidence and clearly state why the finding in question is

factually insufficient and under which ground. Goodman v. State, 66 S.W.3d

283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.

IV. E XHIBITS P ROPERLY A DMITTED

In his first through fourth points, Paschall contends that the trial court

erred by allowing the admission of State’s Exhibits 5 and 6—judgments and

documents related to two prior DWI convictions—because they were not

properly connected to him, were irrelevant, and were more prejudicial than

probative and because the evidence was legally and factually insufficient to

prove that he had been convicted of the alleged jurisdictional DWI enhancement

paragraphs. The State responds that it provided sufficient proof that Paschall

was the same person identified in the exhibits, that the exhibits were relevant

because Paschall contested that he was the person named in the prior

convictions, and that the evidence introduced at trial was legally and factually

16
sufficient to prove that Paschall had been convicted of the DWIs shown on the

convictions that were used to enhance jurisdiction.

DWI is a conduct-oriented offense; it does not require proof of a culpable

mental state. Nelson v. State, 149 S.W.3d 206, 210 (Tex. App.—Fort Worth

2004, no pet.). A person commits the crime of DWI if he “is intoxicated while

operating a motor vehicle.” Tex. Penal Code Ann. § 49.04(a) (Vernon 2003).

The elements of that crime are (1) the defendant, (2) operated, (3) a motor

vehicle, (4) while intoxicated, and (5) on or about the date alleged in the State’s

charging instrument. Id. In a felony DWI case, the State must prove, in

addition to the aforementioned elements of that primary offense, that the

accused has twice previously, and sequentially, been convicted of DWI. Id.

§ 49.09(b)(2).

To establish that a defendant has been convicted of a prior offense, the

State must prove beyond a reasonable doubt that (1) a prior conviction exists,

and (2) the defendant is linked to that conviction. Flowers v. State, 220

S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific document or mode of

proof is required to prove these two elements. Id. While evidence of a certified

copy of a final judgment and sentence may be a preferred and convenient

means, the State may prove both of these elements in a number of ways,

including documentary proof (such as a judgment) that contains sufficient

17
information to establish both the existence of a prior conviction and the

defendant’s identity as the person convicted. Id. at 921–22. Any type of

evidence, documentary or testimonial, might suffice. Id. at 922. Additionally,

the State may establish a prior conviction by admitting certified copies of a

judgment and a sentence and authenticated copies of the Texas Department of

Corrections (n/k/a Texas Department of Criminal Justice—Institutional Division)

records, including fingerprints, supported by expert testimony identifying them

as identical with known prints of the defendant. Beck v. State, 719 S.W.2d

205, 209 (Tex. Crim. App. 1986). The factfinder looks at the totality of the

evidence to determine whether the State proved the prior conviction beyond a

reasonable doubt. Flowers, 220 S.W.3d at 923.

Here, State’s Exhibit 5 contains certified copies of documents, including

a “Judgment On Plea Of Guilty Or No Contest” in Cause No. 01-CCR-3615-C,

showing that Anthony Dean Paschall, I.D. #126409, was found guilty of the

offense of driving while intoxicated on April 22, 2001, by the County Court at

Law No. 3 in Cameron County. The judgment contains a faded right thumb

print and has conditions of community supervision attached, stating that the

punishment will run concurrent with Cause No. 01-CCR-3810-C. State’s

Exhibit 6 contains certified copies of documents, including a “Judgment On Plea

Of Guilty Or No Contest” in Cause No. 01-CCR-3810-C, showing that Anthony

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Dean Paschall, I.D. #126409, was found guilty of the offense of driving while

intoxicated on January 3, 2001, by the County Court at Law No. 3 in Cameron

County. The judgment contains a faded right thumb print. Included with

State’s Exhibit 6 is a document entitled “State’s Motion To Revoke Probated

Sentence,” which lists Paschall’s date of birth as January 13, 1956. Another

document included with State’s Exhibit 6 is “Order Setting Hearing And

Ordering Arrest” and is dated March 17, 2003, which gives the following

physical description of Paschall:

AGE: 47 HAIR: Brown
RACE: Anglo HEIGHT: 5'9"
SEX: Male WEIGHT: 160 lbs.
EYES: Blue COMPLEXION: Light

The section with “OTHER IDENTIFYING MARKS TATTOOS/SCARS” is blank.

The jury in this case heard Hunter, the book-in officer, testify that Paschall’s

birth date is January 13, 1956. State’s Exhibit 5 and State’s Exhibit 6, which

include the same name and ID number and show punishments in each cause

will run concurrently, are therefore sufficiently connected to one another. The

jury, moreover, was able to view Paschall during the trial and compare him to

the description given in State’s Exhibit 6, and to find that he appeared to be the

same person.

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 And, despite Paschall’s objection that the judgments “haven’t been

properly tied to [him],” the jury heard a tape of a phone call made from the jail

using Paschall’s PIN number in which the caller, presumably Paschall, admitted

he had been convicted of two DWIs in Brownsville. The trial court, moreover,

took judicial notice that Brownsville is the county seat of Cameron County.

On this collective evidence, we believe that the jury could have properly

concluded, beyond a reasonable doubt, that the Anthony Paschall then on trial

was the same “Anthony Dean Paschall” who had been convicted of DWI in

Cameron County cause numbers 01-CCR-3615-C and 01-CCR-3810-C. See

Dorsett v. State, 396 S.W.2d 115, 116 (Tex. Crim. App. 1965) (stating that

evidence was held sufficient when the jury had the opportunity to observe the

accused and determine by comparison with the description in the record

whether he is the same person previously convicted); Ruffin v. State, No. 01-

97-00929-CR, 1999 WL 274998, at *2 (Tex. App.—Houston [1st Dist.] May

6, 1999, pet. ref’d) (not designated for publication) (holding that sufficient

evidence existed to establish that appellant was the same individual convicted

in cause number 35374 because the jury had an opportunity to observe

appellant in the courtroom and compare the description in exhibit to his physical

appearance). Moreover, because the State had to prove that Paschall had two

prior DWI convictions, State’s Exhibit 5 and State’s Exhibit 6 were relevant to

20
establish an element of the offense of felony DWI and to demonstrate that

Paschall was the same person as the person convicted of the prior two DWIs.

Cf. Thorn v. State, 961 S.W.2d 12, 19 (Tex. App.—Dallas 1996, pet. ref’d)

(holding that records of appellant’s felony convictions were relevant to establish

an element of the offense of perjury and to demonstrate that appellant’s

convictions were final). As such, we hold that the value of these records was

not substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury when Paschall had not stipulated to the prior

convictions. See Tex. R. Evid. 403; see generally Tamez v. State, 11 S.W.3d

198, 202–03 (Tex. Crim. App. 2000) (stating that it is an abuse of discretion

to admit records when an admission is available); cf. Thorn, 961 S.W.2d at 19

(holding that probative value of prior convictions in perjury case was not

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury when prior felony convictions were relevant to

establish element of offense for which appellant was on trial).

Accordingly, we conclude that the evidence, as measured against the

applicable hypothetically correct jury charge, showed (1) that the two Cameron

County convictions existed and (2) that the person named Paschall then on trial

was linked to those two Cameron County convictions. Thus, we hold that the

evidence was legally and factually sufficient to show that Paschall had been

21
previously convicted of the two prior DWI offenses that occurred in Cameron

County as alleged in the indictment. See Reese v. State, 273 S.W.3d 344,

347–48 (Tex. App.—Texarkana 2008, no pet.) (holding that evidence was

legally and factually sufficient to support finding that defendant was same

person convicted of two prior DWIs even though judgment for second prior

offense listed only offender’s name with no further identifying identification;

record included community supervision data sheet from second DWI offense,

listing identifying information, and a copy of first DWI conviction); see also

Flowers, 220 S.W.3d at 923–25 (holding that evidence was legally sufficient

to prove enhancement paragraph beyond a reasonable doubt when trial court

had certified copy of appellant’s driver’s license record and computer printout

from county to prove appellant’s prior DWI conviction). We overrule Paschall’s

first through fourth points.

V. S UFFICIENT E VIDENCE TO S UPPORT DWI C ONVICTION

In his twelfth and thirteenth points, Paschall contends that the evidence

is legally and factually insufficient to support his conviction for driving while

intoxicated. Specifically, Paschall argues that the State failed to prove that he

was intoxicated by the introduction into his system of alcohol, a controlled

substance, a drug, or a combination of two or more of the previous substances,

or any other substance. The State responds that direct evidence proved

22
Paschall’s loss of normal use of his mental of physical faculties and that

circumstantial evidence proved Paschall’s loss of normal use of his mental or

physical faculties was by reason of his ingestion of a controlled substance, a

dangerous drug, or another substance.

The Texas Penal Code defines “intoxicated” as

(A) 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;3 or

(B) having an alcohol concentration of 0.08 or more.

Tex. Penal Code Ann. § 49.01(2) (Vernon 2003). The fact that a person does

not have the normal use of his mental or physical faculties by reason of

introduction of a controlled substance or a dangerous drug into his body may

be proved by circumstantial evidence. See Smithhart v. State, 503 S.W.2d

283, 284 (Tex. Crim. App. 1973).4

In Payne v. State, the jury heard officers describe appellant’s demeanor

and performance on the sobriety tests, including that appellant seemed drowsy,

3
… This definition was included within the indictment, and the application
paragraph of the jury charge tracked the indictment.
4
… In Smithhart, the Texas Court of Criminal Appeals placed some limits
on the admissibility of non-expert testimony on whether a person is under the
influence of drugs; but the Court explicitly held that the State could prove this
element by circumstantial evidence. See id.

23
had poor balance, and mumbled. No. 12-02-00312-CR, 2003 WL 22047776,

at *8 (Tex. App.—Tyler Aug. 29, 2003, pet. ref’d) (mem. op., not designated

for publication). A doctor testified that Soma and Lortab, which appellant

admitted taking on the morning of the accident, caused drowsiness. Id. The

jury thus had before it both direct evidence, showing that appellant had lost the

normal use of his mental or physical faculties, and circumstantial evidence of

appellant’s intoxication by reason of the introduction of one or more substances

into her body. Id.

Here, concerning the loss-of-normal-use-of-mental-or-physical-faculties

prong of “intoxicated,” the jury had before it the eyewitness’s testimony

regarding Paschall’s driving, Officer Coast’s description of Paschall’s

performance on the field sobriety tests, the video of Paschall performing the

field sobriety tests, Detective Fisher’s testimony that HGN is an accurate

measure of intoxication, and Officer Coast’s conclusion that Paschall did not

have the normal use of his mental or physical faculties. This direct evidence

was legally sufficient for the jury to form a firm conviction or belief that

Paschall did not have the normal use of his mental or physical faculties. See

Compton v. State, 120 S.W.3d 375, 380 (Tex. App.—Texarkana 2003, pet.

ref’d) (holding evidence legally and factually sufficient to support DWI

conviction when jury had before it State Trooper’s testimony surrounding the

stop and viewed the video recording of appellant’s performance on field

24
sobriety tests); Rumage v. State, No. 12-02-00190-CR, 2003 WL 21999347,

at *3–4 (Tex. App.—Tyler Aug. 20, 2003, no pet.) (mem. op., not designated

for publication) (holding evidence legally and factually sufficient to support DWI

conviction after reviewing testimony of arresting officer, driver of other vehicle,

and appellant and watching video of appellant as he performed field sobriety

tests).5

Concerning the by-reason-of-introduction-of-a-controlled-substance-or-

dangerous-drug-or-other-substance-into-his-body prong of “intoxicated,” the

State offered circumstantial evidence. Specifically, the State offered and the

trial court admitted (1) pharmacist Sam Tipton’s testimony that the two drugs

that Paschall listed on his medical intake form as drugs he was

taking—Thorazine and Trazadone—are central nervous system depressants that

would cause a person intoxicated by use of the drugs to exhibit slurred speech,

affected balance, abnormal gait, and constricted pupils and that it would be

dangerous for a person so intoxicated to drive, and (2) Officer Coast’s

testimony that Paschall exhibited slurred speech, swaying, and constricted

pupils at the 7-Eleven and that he, Officer Coast, did not smell alcohol on

5
… The dissent would require direct evidence of ingestion of a specific
drug. The penal code and the jury charge here, however, simply require
evidence that appellant’s loss of normal use was by reason of the introduction
of “a drug, a dangerous drug, a combination of two or more of those
substances, or any other substance.” See Tex. Penal Code Ann. § 49.01(2).

25
Paschall. This evidence was legally sufficient to permit the jury to infer that

Paschall’s loss of the normal use of his mental or physical faculties was by

reason of the introduction of “a controlled substance, a drug, a dangerous drug,

a combination of two or more of those substances, or any other substance”

into his body. 6 See Payne, 2003 WL 22047776, at *8. We hold that a rational

trier of fact could have found the essential elements of DWI beyond a

reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,

235 S.W.3d at 778; see also Guyett v. State, No. 11-08-00003-CR, 2008 WL

3846221, at *1, 3 (Tex. App.—Eastland Aug. 14, 2008, no pet.) (mem. op.,

not designated for publication) (holding evidence legally sufficient to support

DWI conviction based on intoxication by prescription drugs); Gray v. State, No.

05-04-01269-CR, 2005 WL 1670715, at *6–7 (Tex. App.—Dallas July 19,

2005, no pet.) (not designated for publication) (same).

With regard to the factual sufficiency of the evidence, we are required to

review all the evidence in a neutral light. The record here contains evidence

6
… We do not hold, as the dissent contends, that merely possessing a
prescription for a drug deprives a person of the normal use of his mental or
physical faculties. Instead, the State must prove, as it did here: first, that
appellant lost the normal use of his mental or physical faculties, and second,
that appellant’s loss of his mental or physical faculties was by reason of the
introduction of “any . . . substance” into his body. See Tex. Penal Code Ann.
§ 49.01(2). Contrary to the dissent’s position, a person may drive after taking
a prescription medication so long as that person has not lost the normal use of
his mental or physical faculties by reason of introduction of the prescription
drug into his body.

26
that no alcohol or drugs were found in Paschall’s car; that there were no breath

or blood tests; and that Paschall’s cognitive problems, injuries, and degenerative

disk disease could have affected his performance on the field sobriety tests.

The record also contains no evidence of an alternative explanation—such as

sleeplessness, emotional trauma, etc.—for Paschall’s erratic driving and failure

of sobriety tests. Applying the standard of review to all the evidence, after

listening to the testimony surrounding Paschall’s stop and viewing the video

recording of his performance on the field sobriety tests, the jury chose, as it

was entitled to do, to give less weight to Paschall’s physiological explanations

for his poor performance on the field sobriety tests and chose to give more

weight to the eyewitness’s and officer’s accounts of the events. Deferring to

the jury’s role as “the sole judge of the weight and credibility given to witness

testimony” and viewing all the evidence in a neutral light, favoring neither party,

we therefore hold that the evidence supporting Paschall’s felony DWI

conviction, although legally sufficient, is not so weak that the factfinder’s

determination is clearly wrong and manifestly unjust and that conflicting

evidence does not so greatly outweigh the evidence supporting the conviction

that the factfinder’s determination is manifestly unjust. See Neal, 256 S.W.3d

at 275; Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417;

see also Guyett, 2008 WL 3846221, at *1, 3 (holding evidence factually

sufficient to support DWI conviction, despite testimony that appellant had

27
undergone three brain surgeries and spinal surgery); Gray, 2005 WL 1670715,

at *7 (holding evidence factually sufficient, despite testimony that tie rod on

appellant’s car broke and caused her to lose control, because jury was free to

believe officer’s accounts of field sobriety tests and video of intoxilyzer room

testing); Payne, 2003 WL 22047776, at *9 (holding evidence factually

sufficient, despite evidence that appellant was ill and not intoxicated on the

morning of the accident, because jury was free to believe eyewitnesses’ and

officers’ accounts of what they saw). We overrule Paschall’s twelfth and

thirteenth points.

VI. C ONCLUSION

Having overruled Paschall’s first, second, third, fourth, twelfth, and

thirteenth points,7 we affirm the trial court’s judgment.

SUE WALKER
JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: April 2, 2009

7
… As noted in the opening paragraph of this opinion, Paschall waived his
fifth through eleventh points. We therefore need not address them. See Tex.
R. App. P. 47.1.

28
 COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-07-461-CR

ANTHONY PASCHALL APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

------------

DISSENTING OPINION

------------

I must respectfully dissent from the majority’s thorough and detailed

opinion because there is no evidence that Appellant was intoxicated by reason

of the introduction of alcohol, a controlled substance, a drug, a dangerous drug,

or a combination of any two or more of these substances. 1 The jury heard

evidence that Appellant’s speech was slurred, his pupils were constricted, and

1
… See Tex. Penal Code Ann. § 49.01(2)(A) (Vernon 2003).
he could not or would not perform the field sobriety tests. His driving indicated

a lack of the normal use of his mental or physical faculties. The testing officer

said the horizontal gaze nystagmus (HGN) test revealed four clues of

intoxication or brain stem injury, but there was no odor of alcohol. The police

did not seek to administer a breathalyzer test because there was no odor of

alcohol.

The police concluded that Appellant did not have the normal use of his

mental or physical faculties, but the cause was “something other than alcohol.”

Intoxication is a term that is defined in the penal code. 2 Intoxication by

the introduction of alcohol and/or certain drugs is an essential element of the

offense of driving while intoxicated (DWI).3 Intoxication, then, must be proved.

It is not sufficient to prove just that a person “wasn’t acting right.” It is not

enough to conclude that he must have taken something, but we know it was

not alcohol.

Here, Appellant did not consent to a blood test. The officers could have

sought a warrant to allow them to draw blood. They did not. They found no

drugs on Appellant or in his vehicle. He did not admit to taking any drug or

medication, nor did anyone testify that he had taken drugs, prescribed or

2
… See id.
3
… See id. §§ 49.01(2)(A), 49.04(a).

2
otherwise. His jail medical records showed prescriptions for certain drugs, but

the jury heard no evidence that he had taken them the day he was arrested.

The majority relies on cases holding that the officer’s opinion of

intoxication is sufficient. In those cases, however, there was evidence that the

defendant had ingested alcohol, drugs, or both. In Compton v. State, the

defendant “smelled of alcohol; had slurred speech; admitted drinking two

beers; [and] had a cold, open bottle of beer in his truck . . . .” 4

The other cases the majority relies on are

• Rumage v. State, an unpublished case in which “[t]he officer
testified he initially smelled alcohol on [Rumage’s] breath and
noticed his speech was slurred. The driver of the other vehicle told
the officer that she had seen [Rumage] at the restaurant where she
worked drinking an alcoholic beverage shortly before the wreck”; 5

• Payne v. State, an unpublished case in which Payne admitted
drinking a 16-oz. beer around 7:00 a.m., about five hours before
the accident, taking Lortab and Soma the morning of the accident,
and taking another Lortab before lunch.6 She ate a sandwich at
11:00 and then left work. The accident occurred on her way home

4
… Compton v. State, 120 S.W.3d 375, 379 (Tex. App.—Texarkana
2003, pet. ref’d).
5
… Rumage v. State, No. 12-02-00190-CR, 2003 WL 21999347, at *2
(Tex. App.—Tyler Aug. 20, 2003, no pet.) (mem. op., not designated for
publication).
6
… Payne v. State, No. 12-02-00312-CR, 2003 WL 22047776, at *5–6
(Tex. App.—Tyler Aug. 29, pet. ref’d) (mem. op., not designated for
publication).

3
 from work. She was incoherent and did not know where she was
when the police interviewed her at the accident scene;7

• Guyette v. State, an unpublished case in which Guyette admitted
that she was taking prescription medication as prescribed by her
doctor, acknowledged that some of her medication was
accompanied by a warning that it might cause drowsiness and
affect the ability to drive, and stated that she had taken the drugs
for years and was “acclimated” to them and that neither her
doctors nor DPS had told her that she could not drive; 8 and

• Gray v. State, an unpublished case in which Gray admitted that she
had taken hydrocodone the night before, and the officer testified
that hydrocodone is a controlled substance and that he found an
empty prescription bottle for it in the car and as well as loose pills,
an indication that she had taken the drug more recently than the
night before.9

In all the cases relied on by the majority, there was evidence that the

defendant drank alcohol and/or took the drugs near the time of the arrest, or,

as in Gray, evidence of the presence of drugs or alcohol in the vehicle driven by

the defendant. In the case now before this court, Appellant admitted to one or

two drinks at 7:00 or 8:00 a.m. the morning of his arrest; he was not pulled

over until around 6:30 or 6:45 p.m., more than eleven hours later, and the

7
… Id.
8
… Guyett v. State, No. 11-08-00003-CR, 2008 WL 3846221, at *2
(Tex. App.—Eastland Aug. 14, 2008, no pet.) (mem. op., not designated for
publication).
9
… Gray v. State, No. 05-04-01269-CR, 2005 WL 1670715, at *6 (Tex.
App.—Dallas July 19, 2005, no pet.) (not designated for publication).

4
police officers were convinced that he had not been drinking, so convinced that

they did not offer him a breath test. He did not testify that he had taken any

drugs, no drugs were found in his vehicle, and no blood test was performed.

The majority holds that the pharmacist’s testimony regarding the effect

of drugs Appellant listed on his jail intake form as drugs he was taking,

combined with the arresting officer’s description of Appellant’s swaying, slurred

speech, and constricted pupils, as well as the absence of the odor of alcohol,

was sufficient evidence to support the jury’s verdict. Respectfully, I cannot

agree.

There is no presumption of intoxication. Slurred speech, constricted

pupils, and swaying may indicate intoxication, but such evidence only goes to

the element of lack of normal use. It is not, in and of itself, proof of

introduction into the body of a drug or controlled substance or alcohol, a

necessary element of intoxication that the State must prove. 10 If, rather than

having the actual drug, having a prescription for a drug which, if used or

abused, deprives a person of the normal use of his mental or physical faculties

is sufficient to prove intoxication, no one who has been prescribed a sleeping

pill, a muscle relaxant, cough medicine, or pain medication could ever drive

10
… Tex. Penal Code Ann. §§ 49.01(2)(A), 49.04(a).

5
without violating the DWI statute. The State must prove more than the mere

opportunity to ingest the medication.

The legislature has balanced the interests of society and law enforcement

against the due process rights of a defendant by providing the State the ability

to draw and test a defendant’s blood. The police, although candid in admitting

that there was no odor of alcohol despite Appellant’s history of alcohol abuse

and thorough in searching out Appellant’s medical records to trace his medical

history, provided the State with no more than a guess as to the reason for

Appellant’s lack of coordination and slurred speech. I would hold that a guess

is not sufficient evidence to support a felony conviction.

For these reasons, I respectfully dissent from the majority’s opinion

upholding the trial court’s judgment.

LEE ANN DAUPHINOT
JUSTICE

PUBLISH

DELIVERED: April 2, 2009

6