COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-438-CR
TERRY WAYNE PATTERSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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Appellant Terry W ayne Patterson challenges the legal and factual
sufficiency of the evidence to support his conviction for felony driving while
intoxicated. We affirm.
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… See Tex. R. App. P. 47.4.
Background
Cheriba Heliker testified that she was driving on a rural, two-lane road in
the nighttime when she observed Appellant’s oncoming car approaching with
its headlights off. She said Appellant swerved in and out of his lane. Heliker
testified that a tire on Appellant’s car blew out, and Heliker swerved into the
bar ditch to avoid a collision. She said that she made a u-turn, caught up to
Appellant’s vehicle—which was going ten to fifteen miles per hour and was
“still swerving all over the road”—turned on her flashers, and started honking
her horn. Appellant eventually stopped in a gas station parking lot, got out of
his car, and approached Heliker’s vehicle. Heliker said that Appellant “just kept
mumbling and rambling on,” his speech was slurred, and he smelled of alcohol.
Heliker called 911, and Appellant began to walk away down the road,
staggering “pretty bad[ly]” as he went. Heliker concluded that Appellant was
intoxicated based on training she had received from the Texas Alcoholic
Beverage Commission when she worked for a convenience store. Starr
Jackson, who was riding as Heliker’s passenger, also testified, and her
testimony is essentially the same as Heliker’s.
Reno Police Officer Jake Sullivan testified that he responded to Heliker’s
call. He found Appellant standing next to a pay phone in the gas station
parking lot. Officer Sullivan said that Appellant’s speech was slurred and slow,
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his eyes were bloodshot and watery, he was swaying as he stood, and his
breath smelled strongly of alcohol.
Another officer—Corporal Colby Langford—administered the horizontal
gaze nystagmus test. Corporal Langford testified that Appellant exhibited six
out of six possible clues of intoxication. Appellant refused to perform the one-
leg-stand test and the walk-and-turn test. Corporal Langford said that he
attempted to administer a portable breathalyser test, but Appellant first
pretended that he could not blow through the breathalyser tube and then blew
the tube off the device. Upon Appellant’s third attempt to blow into the
breathalyser, the device indicated that he had consumed alcoholic beverages.
Corporal Langford testified that Appellant told him he had consumed three
beers. Corporal Langford arrested Appellant for driving while intoxicated. At
the county jail, Appellant refused to submit to another breathalyser test, and
Corporal Langford obtained a search warrant to draw a sample of Appellant’s
blood. Corporal Langford testified in considerable detail that Appellant was
belligerent, combative, and uncooperative throughout the entire encounter;
among other things, Appellant screamed, spat, head-butted the camera
mounted in Langford’s patrol car, and threatened to urinate in the car.
Lori Whitmarsh, a medical technologist at Weatherford Regional Medical
Center, testified that she drew Appellant’s blood. Raymond Waller, the
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manager of the Department of Public Safety Crime Laboratory in Abilene,
testified that he analyzed the blood sample drawn by Whitmarsh and that
Appellant’s blood contained .22 grams of alcohol per 100 milliliters, or close to
three times the legal limit. He testified that to attain a blood alcohol level of
.22, an average person would have to consume twelve beers over the course
of an hour.
Appellant testified on his own behalf. He denied having consumed any
alcohol on the evening in question before his tire blew out. He testified that he
had an unopened pint of whiskey underneath his van’s back seat. Appellant
said that after he parked the van in the gas station parking lot, he opened the
whiskey and drank half of the bottle in “two gulps.” He testified that after
speaking to Heliker and Jackson, he walked down the road to find the blown
tire’s hubcap and that he drank the rest of the whiskey as he walked.
Appellant said he finished the whiskey and threw the bottle into a dumpster
before the police arrived at the gas station. Appellant first testified that he
drank the whiskey over the course of “thirty minutes, maybe sooner,” but on
cross examination he said that he “did all that in less than 10 minutes.” He
testified that he had lied to the police when he told them he had consumed
three beers. He also admitted that he had lied to the police when he told them,
“I promise you I was not driving.”
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The jury found Appellant guilty, and the trial court assessed punishment
at twelve years’ confinement.
Discussion
Appellant argues that the evidence is legally and factually insufficient to
prove beyond a reasonable doubt that he was intoxicated while he was driving
his vehicle.
When 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). 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); 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
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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.
A person commits the offense of driving while intoxicated if the person
operates a motor vehicle in a public place without the normal use of mental or
physical faculties due to the introduction of alcohol or other substances into the
body. Tex. Penal Code Ann. §§ 49.01(2)(A), 49.04(a) (Vernon 2003). The
corpus delicti of driving while intoxicated is that someone drove or operated a
motor vehicle in a public place while intoxicated. Threet v. State, 157 Tex.
Crim. 497, 498, 250 S.W.2d 200, 200 (1952).
Appellant challenges the legal and factual sufficiency of the evidence to
support the “while intoxicated” part of the corpus delicti, arguing that there is
no evidence that he was intoxicated while he was driving. Appellant points to
a note sent out by the jury during deliberations on guilt-innocence asking the
trial court, “Your honor, can we find the Defendant guilty of a lesser charge of
public intoxication instead of driving while intoxicated?”—to which the trial
court answered “no”—as an indication that the jury was struggling with the
question of whether Appellant was driving while intoxicated or became
intoxicated after he stopped driving.
But the jury ultimately resolved the question against Appellant, and the
evidence supports that resolution. Heliker testified that Appellant was swerving
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across the roadway even before his tire blew and driving without his headlights
on. Both Heliker and Jackson testified that he smelled of alcohol, his speech
was incoherent and slurred, and he was staggering immediately after he
stopped his vehicle at the gas station. Neither Heliker nor Jackson saw
Appellant drinking anything after he stopped driving, and neither of them saw
a bottle on his person. Officer Sullivan, who arrived about ten minutes later,
testified that Appellant’s speech was slurred and slow, his eyes were bloodshot
and watery, he was swaying as he stood, and his breath smelled strongly of
alcohol. Shortly thereafter, Appellant exhibited six clues on the horizontal gaze
nystagmus test, failed a breathalyser test, and told Corporal Langford that he
had been drinking beer. From this evidence a jury could reasonably conclude
beyond a reasonable doubt that Appellant was not only intoxicated when the
police administered the field tests and took his blood sample, but when he was
driving, too.
The only evidence that Appellant became intoxicated after he stopped
driving came from Appellant himself. The jury is free to accept or reject any or
all of the evidence of either party and any or all of the testimony of any
witness. Hernandez v. State, 161 S.W.3d 491, 500 & n.28, 501 (Tex. Crim.
App. 2005). In this case, the jury rejected Appellant’s testimony that he did
not start drinking until he stopped driving.
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Appellant argues that this case is like Coleman v. State, 704 S.W.2d 511
(Tex. App.—Houston [1st. Dist.] 1986, no pet.). In Coleman, the defendant
was involved in a traffic accident. Id. at 511. The defendant told the officers
he had been driving one of the cars involved in the accident, but the officers
determined that someone else had been in his car, too. Id. During their
investigation, the police noticed that the defendant appeared to be intoxicated,
and he failed a field sobriety test and, later, a breathalyser test. Id. On appeal
from the defendant’s DWI conviction, the court of appeals held,
Here, as appellant argues, there is nothing in the record before us
to show that he operated a motor vehicle while intoxicated.
Testimony indicates that he was intoxicated when the officers
arrived at the scene of the accident, but there is no evidence, other
than his own extrajudicial confession, to show that appellant was
driving the vehicle, and no evidence whatsoever to show that he
was intoxicated at the time he was driving. Therefore, the evidence
is insufficient to support appellant’s conviction for driving while
intoxicated.
Id. at 512. Our case is distinguishable from Coleman because (1) Appellant
judicially admitted through his sworn trial testimony that he was the driver of
the vehicle in question, (2) Heliker testified that Appellant was swerving across
the roadway even before his tire blew out, and (3) Heliker and Jackson testified
that Appellant appeared to be intoxicated immediately following the blowout.
Thus, unlike Coleman, there is some evidence in this case that Appellant was
driving and that he was intoxicated while driving.
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Viewing the evidence in the light most favorable to the prosecution, we
hold that a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt; thus, the evidence is legally sufficient. See
Jackson, 443 U.S. at 319, 99 S. Ct. St 2789; Clayton, 235 S.W.3d at 778.
Viewing the evidence in a neutral light, we hold that it is also factually
sufficient. See Neal, 256 S.W.3d at 275. We therefore overrule both of
Appellant’s points and affirm the trial court’s judgment.
PER CURIAM
PANEL: GARDNER, J.; CAYCE, C.J.; and LIVINGSTON, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 22, 2009
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