COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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JEANNE MARIE FARNEN, ) No. 08-05-00143-CR
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Appellant, ) Appeal from
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v. ) County Court at Law No. 3
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THE STATE OF TEXAS, ) of Collin County, Texas
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Appellee. ) (TC# 003-85949-03)
O P I N I O N
Jeanne Marie Farnen appeals her conviction of driving while intoxicated. A jury found her guilty and the court assessed punishment at a fine of $600 and confinement for ninety days. The court suspended the sentence and placed Appellant on community supervision for twelve months. Finding the evidence sufficient to support the conviction, we affirm.
FACTUAL SUMMARY
On October 3, 2003 at around 7 p.m., Aly Hajee was driving home after a work-related event at the state fair. As he entered an intersection, he saw a red Camaro attempt to turn left without yielding the right-of-way to him. Hajee slammed on the brakes but was unable to avoid colliding head-on with the Camaro. The red Camaro was driven by Appellant, who was alone in the car. After stopping in the intersection for a short time, Appellant moved her car onto an adjacent street. Hajee saw that the accident had caused minor damage and he moved his vehicle out of the intersection. He stopped near Appellant’s vehicle to exchange insurance and personal information. He did not see anyone in the Camaro other than Appellant but her sister appeared at the scene and told Hajee that she had witnessed the accident. During their conversation, Hajee smelled alcohol on Appellant’s breath. When Appellant claimed that she had a green arrow and the right-of-way, he decided to call the police because he was “100 percent sure” that he had the green light. Hajee estimated that about fifteen minutes elapsed between the time of the accident and when he called the police. When a Plano police officer arrived at the scene, Hajee talked to her and gave a written statement regarding what had happened. Although Hajee identified Appellant as the driver of the Camaro during his testimony, he could not make a positive in-court identification. He only recalled that the driver had long dark hair.
Renee Glasser, a Plano police officer, arrived at the accident scene at 7:15 p.m. She saw a red Camaro and a green Volvo parked in the right lane. Glasser first spoke with Hajee who identified Appellant as the driver of the Camaro. When Glasser first arrived, Appellant was seated in the passenger seat looking in the glove box for her insurance card. Appellant told Glasser that she was the driver of the Camaro. Glasser could smell an odor of alcohol on Appellant’s person and asked if she had been drinking. At first, Appellant denied drinking at all and handed Glasser a bottle of water from the car. When Glasser told Appellant that she could smell alcohol, Appellant admitted that she’d had two margaritas while drinking at the Blue Goose with her sisters. At this point, Glasser administered field sobriety tests.
Glasser first administered the horizontal gaze nystagmus test. Appellant had a lack of smooth pursuit and onset of nystagmus prior to maximum deviation in both eyes indicating intoxication. Although the results indicated that Appellant was too intoxicated to be driving, Glasser continued with the other tests. Glasser next had Appellant perform the one-leg stand. Appellant raised her arms for balance and put her foot down before completing the test. These results also indicated to Glasser that Appellant was intoxicated. Finally, Glasser asked Appellant to walk heel-to-toe in a straight line. Appellant could not maintain her balance and used a nearby wall for support. She also stepped off the line. Based on her observations and experience, Glasser concluded that Appellant had lost the normal use of her mental and physical faculties due to the introduction of alcohol into her body. She arrested Appellant for driving while intoxicated and transported her to the Plano city jail.
Once at the jail, Glasser gave Appellant a copy of the DWI statutory warning and began reading the warning aloud to her while Appellant read along on her copy. Approximately halfway through the warning, Appellant realized that her copy of the warning was upside down and she turned it around. Appellant agreed to submit to a breath test. The first test was invalid and did not record a result because the samples were too far apart. Appellant consented to submit a second sample and that test was administered at 8:50 p.m., approximately one hour and fifty minutes after the accident. The results were .152 and .155.
Alvin Finkley, the technical supervisor responsible for maintenance and repair of the intoxilyzer devices in the area, testified that the particular device used in this case was functioning properly at the time the test was administered. Based on the test results, Finkley was of the opinion that Appellant was intoxicated at the time of the test. Finkley also applied retrograde extrapolation to the test results and other relevant factors and concluded that Appellant would have had alcohol in her system two hours before the test.
The information alleged both definitions of intoxication (loss of normal use and blood alcohol concentration greater than .08) but the trial court submitted only the loss of normal use definition to the jury.
SUFFICIENCY OF THE EVIDENCE
By four points of error, Appellant challenges the legal and factual sufficiency of the evidence to support her conviction.
Standards of Review
In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.
In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), the Court of Criminal Appeals clarified the factual sufficiency standard and linked the appellate standard of review to the beyond a reasonable doubt burden of proof. There is only one question to be answered in a factual sufficiency review:
Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga, 144 S.W.3d at 484. However, there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. In performing this review, we are to give due deference to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses. Zuniga, 144 S.W.3d at 481.
Elements of Driving While Intoxicated
A person commits driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex.Penal Code Ann. § 49.04(a)(Vernon 2003). Intoxication is established by proof of either a blood alcohol concentration greater than .08 or the loss of normal use of mental and physical faculties due to the introduction of alcohol into the body. See Tex.Penal Code Ann. §49.01(2)(A), (B). The trial court limited the jury’s consideration of the evidence to loss of normal use.
IDENTIFICATION
In Point of Error One, Appellant complains that the State failed to prove by legally sufficient evidence that she operated the Camaro found at the scene of the accident. In Point of Error Four, she challenges the factual sufficiency of the evidence to prove this same element. Included in these arguments is Appellant’s contention that since none of the witnesses specifically identified her at trial, they may have been referring to someone else in the courtroom.
Although Hajee testified that his vehicle collided with a car driven by “Ms. Farnen,” he admitted that his only independent recollection of her appearance was that she had long dark hair. He was not asked to and did not make an in-court identification of Appellant. Officer Glasser testified on the first day of trial that Hajee identified “Ms. Farnen” as the driver of the Camaro. Glasser approached Ms. Farnen and obtained her driver’s license. Ms. Farnen admitting to Glasser that she was the driver. The following exchange occurred during Glasser’s in-court identification of Appellant:
[Prosecutor]: Is that person that you’re talking to, that you’ve identified as the driver of the red Camaro, that you’ve identified as Ms. Farnen, do you recognize that individual in the courtroom today?
[Glasser]: Yes. She’s wearing the red shirt with a black jacket.
[Prosecutor]: And with regards to my location, if we move from, I guess, your left, Mr. McKnight being one number and Mr. Mulder number three, where would she would [sic] be sitting?
[Glasser]: She would be the number four seat.
[Prosecutor]: And this was the same individual that Mr. Hajee pointed out to you at the scene?
[Glasser]: Yes.
Appellant’s counsel did not object to this identification procedure.
On the second day of trial, Officer Eric Granhold testified that he administered the intoxilyzer breath test to “Jeanne Farnen” on October 3, 2003. When asked by the prosecutor whether he saw the same person in the courtroom, Granhold answered, “Yes, sir” and identified her as “wearing a pink color jacket.” Granhold described her as sitting “over here at the table at the left.” Once again, Appellant’s counsel did not object to this identification procedure. The trial court admitted a videotape made at the scene (State’s Exhibit 1) and a videotape made at the jail (State’s Exhibit 2). State’s Exhibit 2 depicts Officer Glasser looking at what appears to be a driver’s license and addressing the defendant as “Ms. Farnen.” The jury had the opportunity to view the perpetrator of the offense at the scene and subsequent to her arrest and to compare her appearance to Appellant.
To the extent Appellant complains that the witnesses pointed out some other person at trial, it was incumbent upon her to object to the identification procedure to preserve the issue for review. Her failure to object waived any complaint about possible confusion or misidentification. See Rohlfing v. State, 612 S.W.2d 598, 601 (Tex.Crim.App. 1981).
In reviewing the sufficiency of an in-court identification, the test is whether we can conclude from a totality of the circumstances the jury was adequately apprised that the witnesses were referring to the defendant as the perpetrator of the offense. Rohlfing v. State, 612 S.W.2d 598, 601 (Tex.Crim.App. 1981). The information charged “Jeanne Marie Farnen” with driving while intoxicated. When arraigned, Appellant entered a plea of not guilty to the charge. All of the State’s witnesses referred to the perpetrator of the offense as “Ms. Farnen” and both Glasser and Granhold identified her in the courtroom by pointing out where she sat and by an article of clothing. The jury viewed both videotapes. State’s Exhibit 3 and State’s Exhibit 4, the intoxilyer results, identify the “subject” of the test as “Jeanne M. Farnen.” The jury charge identified the defendant as “Jeanne Marie Farnen” and the jury found “the defendant guilty of driving while intoxicated, as charged in the information.” Based upon a totality of the circumstances, we conclude that the evidence is legally sufficient to identify Appellant as the perpetrator of the offense. See Rohlfing, 612 S.W.2d at 601 (where witnesses identified defendant by pointing to him or by identifying particular item of clothing he was wearing, defendant was sole person on trial, jury found defendant guilty as alleged in the indictment, and the defendant did not object at trial to the in-court identification procedure as being misleading to the jury, the evidence was sufficient to establish identification). Having considered all of the evidence in a neutral light, we also find that it is factually sufficient to establish that Appellant was the perpetrator of the DWI offense. Id.
We next consider Appellant’s argument that the evidence is legally insufficient to prove that she operated a motor vehicle. The State relies in part on Appellant’s statement to Officer Glasser that she was the driver of the red Camaro. Appellant contends that the State failed to corroborate her extrajudicial statement. Extrajudicial confessions alone are not sufficient to support a conviction. Emery v. State, 881 S.W.2d 702, 705 (Tex.Crim.App. 1994); Purvis v. State, 4 S.W.3d 118, 121 (Tex.App.--Waco 1999, no pet.). A defendant’s extrajudicial confession must be corroborated by other evidence tending to show that a crime has been committed. Williams v. State, 958 S.W.2d 186, 190 (Tex.Crim.App. 1997); Purvis, 4 S.W.3d at 121. The corroborating evidence, however, need not be sufficient by itself to prove the offense; rather all that is required is that there be some evidence which renders the commission of the offense more probable than it would be without the evidence. Williams, 958 S.W.2d at 190; Purvis, 4 S.W.3d at 121.
Taken in the light most favorable to the verdict, the evidence corroborated Appellant’s admission to Glasser that she was the driver of the vehicle. According to Hajee, the driver was alone in the Camaro. When Glasser arrived on the scene, Appellant was seated alone in the passenger seat of the vehicle looking for her insurance card. Hajee told Glasser that Appellant was the driver of the Camaro, and at trial, Glasser identified Appellant as the same person Hajee had identified as the driver. We conclude that the evidence is legally sufficient to prove that Appellant drove the vehicle. See Lewis v. State, No. 2-02-341-CR, 2003 WL 23095980 (Tex.App.--Fort Worth Dec. 31, 2003, no pet.)(not reported in S.W.3d)(evidence was sufficient to corroborate defendant’s extrajudicial confession; witness, who was a passenger in vehicle into which defendant’s vehicle collided, testified that no one other than defendant was in the vehicle and that the driver of that vehicle remained on the scene until officers arrived, and officers testified that witness identified defendant at the scene as the driver of vehicle).
A neutral review of the evidence also leads to a conclusion that the evidence is sufficient to corroborate Appellant’s extra-judicial admission that she was the driver. Although her sister appeared at the scene of the accident, there was no evidence that she was in or drove Appellant’s car. We conclude that the evidence is factually sufficient to prove this element. Points of Error One and Four are overruled.
DRIVING WHILE INTOXICATED
In Point of Error Two, Appellant argues that the evidence is legally insufficient to prove that she was intoxicated at the time she operated the vehicle. In Point of Error Three, she challenges the factual sufficiency of the evidence to support the same element. As part of her argument, she challenges the retrograde extrapolation evidence offered at trial. Although the State charged Appellant under both the loss of normal use and per se definitions of intoxication, the trial court only submitted the loss of normal use definition to the jury. We will first consider whether the State proved beyond a reasonable doubt that Appellant had lost the normal use of her mental and physical faculties at the time she drove.
Taken in the light most favorable to the verdict, the evidence established that Hajee noticed the smell of alcohol on Appellant’s breath almost immediately after the accident. Appellant at first denied drinking any alcoholic beverages, but finally admitted to Officer Glasser that after work and before the accident she had been drinking margaritas with her sisters at a nearby establishment. Glasser, who arrived fifteen minutes after the accident occurred, also noticed the smell of alcohol on Appellant’s breath during her initial conversation with Appellant. The field sobriety tests indicated that Appellant was intoxicated. In Glasser’s opinion, Appellant had lost the normal use of her mental and physical faculties due to the introduction of alcohol into her body.
Pointing to a bottle containing clear liquid found in her car, Appellant suggests it is possible that she drank after the accident, rather than before. But Appellant told Glasser that the bottle contained water and there was no evidence that it contained an alcoholic beverage or that Appellant drank from the bottle after the accident. Even if the evidence supported an inference that Appellant drank after the accident, it would not render the evidence legally insufficient as it was the jury’s task to choose between the competing inferences. The evidence is legally sufficient to establish beyond a reasonable doubt that Appellant was intoxicated at the time she drove her vehicle. See Weaver v. State, 721 S.W.2d 495, 498-99 (Tex.App.--Houston [1st Dist.] 1986, pet. ref’d)(evidence sufficient to support DWI conviction where defendant admitting driving, officer arrived shortly after accident and observed that defendant had odor of alcohol on his breath, and other testimony established that defendant had been drinking prior to the accident).
We have also considered the evidence in a neutral light. There is little or no evidence permitting an inference that Appellant became intoxicated after the accident. Given Appellant’s admission that she had been drinking margaritas with her sisters prior to the accident, the smell of alcohol on her breath, and the evidence showing that she had lost the normal use of her mental and physical faculties, we conclude that the evidence is factually sufficient to prove this element beyond a reasonable doubt.
Because the evidence is legally and factually sufficient to prove intoxication under the loss of normal use definition, we need not consider Appellant’s contention regarding retrograde extrapolation as it relates to the per se definition of intoxication. For this same reason, it is unnecessary to address the State’s cross-point regarding the trial court’s refusal to charge the jury on the per se definition of intoxication. We overrule Points of Error Two and Three and affirm the judgment of the trial court.
April 27, 2006
ANN CRAWFORD McCLURE, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)