TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 98-0888-1, HONORABLE KEVIN HENDERSON, JUDGE PRESIDING
Appellant contends the evidence is factually insufficient to sustain the conviction. A factual sufficiency review asks whether a neutral review of all the evidence, both for and against the finding of guilt, demonstrates that the proof of guilt is so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the jury's determination. See Johnson v. State, No. 1915-98, slip op. at 18 (Tex. Crim. App. Feb. 9, 2000). A verdict may be set aside only if a finding of guilt beyond a reasonable doubt is clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).
Appellant was stopped for observed traffic violations. The officer testified that appellant's eyes were watery and bloodshot, his speech was slurred, and he smelled of alcoholic beverage. Appellant's pants were unzipped, his clothes were in disarray, and he was unable to stand without swaying. Appellant was asked to perform several field sobriety tests, none of which he was able to complete satisfactorily. Based on these observations, the officer concluded that appellant was intoxicated.
Appellant attacks the credibility of the arresting officer's testimony regarding the reasons for the traffic stop that resulted in his arrest. The circumstances of the stop are irrelevant to the question whether appellant was driving while intoxicated. We must maintain appropriate deference to the jury's verdict by finding error only when the record clearly indicates that the verdict is wrong and manifestly unjust. See Johnson, slip op. at 13; Reina v. State, 940 S.W.2d 770, 773 (Tex. App.--Austin 1997, pet. ref'd). Even if every assertion in appellant's brief were true, the jury's finding of guilt would not be manifestly unjust. Point of error two is overruled.
Appellant also asserts that the State withheld favorable evidence. The arresting officer's offense report indicated that a videotape of appellant was made. The officer testified, however, that the notation was erroneous and that no videotape was made. Appellant concedes that there is no evidence that a videotape exists, but asserts "the state's testimony leads to the conclusion that one did exist" and "leads to the inference that it was exculpatory." We disagree. The officer's testimony leads to the conclusion that no videotape was made, and we decline appellant's invitation to presume misconduct by the State. Point of error one is overruled.
Finally, appellant complains the court erroneously excluded evidence that the Department of Public Safety refused to suspend his driver's license. Appellant took an intoxilyzer test following his arrest. The two breath samples showed an alcohol concentration of 0.100 and 0.099, respectively. Appellant was served with a notice of suspension, but the department subsequently rescinded the suspension because one of the two samples did not meet the statutory definition of intoxication. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, sec. 1.01, § 49.01, 1993 Tex. Gen. Laws 3586, 3696 (Tex. Penal Code Ann. § 49.01(2)(B), since amended). The trial court ruled that the department's decision was not relevant: "It doesn't, in my view, tend to prove or disprove any element of the case. . . . The Department of Public Safety can have whatever regulations it wants to have regarding the suspension of driver's license. It has absolutely no bearing on whether or not Mr. Hinds was intoxicated."
Evidence is relevant only if it has a tendency to make the existence of any consequential fact more or less probable than it otherwise would be. See Tex. R. Evid. 401. The decision whether evidence is or is not relevant is committed to the discretion of the trial court. See Paz v. State, 749 S.W.2d 626, 629 (Tex. App.--Corpus Christi 1988, pet. ref'd). A trial court does not abuse its discretion if its ruling lies within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Appellant was accused of driving without the normal use of his mental and physical faculties by reason of alcohol consumption. See Tex. Penal Code Ann. 49.01(2)(A) (West Supp. 2000). The trial court has not been shown to have abused its discretion by concluding that the department's decision was not relevant to the question of whether appellant's faculties were impaired by alcohol. See also Reynolds v. State, 4 S.W.3d 13, 19-22 (Tex. Crim. App. 1999); Tex. Transp. Code Ann. § 524.012(e) (West 1999). Point of error three is overruled.
The judgment of conviction is affirmed.
Lee Yeakel, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: June 22, 2000
Do Not Publish
ellant's pants were unzipped, his clothes were in disarray, and he was unable to stand without swaying. Appellant was asked to perform several field sobriety tests, none of which he was able to complete satisfactorily. Based on these observations, the officer concluded that appellant was intoxicated.
Appellant attacks the credibility of the arresting officer's testimony regarding the reasons for the traffic stop that resulted in his arrest. The circumstances of the stop are irrelevant to the question whether appellant was driving while intoxicated. We must maintain appropriate deference to the jury's verdict by finding error only when the record clearly indicates that the verdict is wrong and manifestly unjust. See Johnson, slip op. at 13; Reina v. State, 940 S.W.2d 770, 773 (Tex. App.--Austin 1997, pet. ref'd). Even if every assertion in appellant's brief were true, the jury's finding of guilt would not be manifestly unjust. Point of error two is overruled.
Appellant also asserts that the State withheld favorable evidence. The arresting officer's offense report indicated that a videotape of appellant was made. The officer testified, however, that the notation was erroneous and that no videotape was made. Appellant concedes that there is no evidence that a videotape exists, but asserts "the state's testimony leads to the conclusion that one did exist" and "leads to the inference that it was exculpatory." We disagree. The officer's testimony leads to the conclusion that no videotape was made, and we decline appellant's invitation to presume misconduct by the State. Point of error one is overruled.
Finally, appellant complains the court erroneously excluded evidence that the Department of Public Safety refused to suspend his driver's license. Appellant took an intoxilyzer test following his arrest. The two breath samples showed an alcohol concentration of 0.100 and 0.099, respectively. Appellant was served with a notice of suspension, but the depar