IN THE
TENTH COURT OF APPEALS
No. 10-02-00174-CR
Andrew King Sloane,
Appellant
v.
The State of Texas,
Appellee
From the County Court at Law No 1
McLennan County, Texas
Trial Court # 20003519CR1
MEMORANDUM Opinion
A jury convicted Andrew King Sloane of driving while intoxicated. The trial court sentenced him to 180 days in jail, probated for twelve months, a $2,000 fine and $3,910 in restitution. We affirm.
Background
Sloane was involved in an accident at the intersection of Bagby and the Highway 6 access road in McLennan County, Texas. He struck another vehicle and rolled his Ford Excursion several times. At the scene, witnesses and police determined Sloane was intoxicated.
Sufficiency of the Evidence
Sloane first contends that the evidence to support his conviction was both legally and factually insufficient.
A "legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence." Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000)). Instead, a legal-sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. See also Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995). We consider both direct and circumstantial evidence as well as evidence improperly admitted. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
In reviewing a challenge to the factual sufficiency of the evidence, we must view all the evidence without the prism of the “in the light most favorable to the prosecution” construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
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? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. 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. 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. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004) (footnote omitted).
We must also remain cognizant of the factfinder’s role and unique position—one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). A decision is not factually insufficient as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).
Two eye-witnesses, Larry Blaine and John Plemmons, testified that Sloane was speeding and driving aggressively as he approached the intersection. They stated that at the intersection, Sloane attempted to turn, clipped another vehicle, a van, on its back, left side, and rolled two or three times. Both witnesses said they stopped to help and saw Sloane emerge, angry, from his vehicle. Blaine testified that Sloane smelled like liquor. Plemmons testified that Sloane’s speech was slurred, that Sloane stumbled, and that he pushed away a woman who looked like a nurse and was trying to help him. Both Blaine and Plemmons testified that they believed Sloane was intoxicated.
Brad Schronk, a Waco police officer, responded to the accident. He testified that he smelled alcohol on Sloane’s breath and administered two field sobriety tests on Sloane, which Sloane failed. One of the tests administered was the Horizontal Gaze Nystagmus test. Schronk testified that Sloane exhibited two of the six clues for intoxication.
Sloane and his wife testified on Sloane’s behalf. They both testified that Sloane used a hand sanitizer because of his job and that he had a bottle with him at the time of the accident. They both also testified that Sloane had not been drinking and did not abuse alcohol. A friend of Sloane’s testified that he had seen Sloane at a store prior to the accident and that Sloane was not intoxicated. Sloane’s wife testified that Sloane’s father had recently died, and that they had just returned home from the funeral the day before. Sloane admitted that he was speeding and that he was passing several slow moving cars. He stated he swerved to avoid hitting a blue Mustang. Sloane testified that his astigmatism and injuries from a prior accident contributed to his poor performance on the sobriety tests. He also stated that he refused a breathalyzer test at the jail because he was angry.
We have reviewed all the evidence in a neutral light and find it was within the province of the jury to choose between reasonably equal competing theories of the case. The determination turns on the credibility of the witnesses, and we will not disturb it.
Sloane’s first issue is overruled.
Opinion Testimony
Sloane also complains that the trial court erred by permitting John Plemmons, an eye witness to the accident, to testify that he thought Sloane was intoxicated. Specifically, Sloane contends that because Plemmons is a former police officer, this was improper expert testimony.
A complaint about the admission of evidence is reviewed under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). If evidence is admissible for any purpose, we will sustain the trial court’s ruling even if that purpose was not asserted at trial and even if the court gave the wrong reason for admitting the evidence. Najar v. State, 74 S.W.3d 82, 86 (Tex. App.—Waco 2002, pet. dism’d). “Rule of Evidence 701 permits the admission of lay opinion testimony when the witness’s opinion is ‘(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.’” Webster v. State, 26 S.W.3d 717, 724 (Tex. App.—Waco 2000, pet. ref’d); Tex. R. Evid. 701.
Plemmons testified that he thought Sloane was intoxicated because of what he had witnessed: Sloane speeding, “clipping a vehicle, jumping a curb, rolling three times, getting out…pushing a nurse away after an accident, having slurred speech, and stumbling around.” Although Plemmons did have law enforcement training, his opinion was not offered as expert testimony. Nothing in the record suggests that the trial court abused its discretion by allowing this lay opinion testimony.
Sloane’s second issue is overruled.
Conclusion
Having overruled both issues for review, the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance dissents with a note: “In my view, Sloane has demonstrated that, although it may preponderate in favor of the jury’s finding, the evidence on the element of ‘the introduction of alcohol into the body’ does not meet the beyond-a-reasonable-doubt standard when viewed in a neutral light. Zuniga v. State, No. 539-02, 2004 WL 840786 *7 (Tex. Crim. App. April 21, 2004).”).
Affirmed
Opinion delivered and filed July 28, 2004
Do not publish
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