IN THE
TENTH COURT OF APPEALS
No. 10-05-00389-CR
No. 10-05-00390-CR
LaMont Marcelous Gilbert,
Appellant
v.
The State of Texas,
Appellee
From the 174th District Court
Harris County, Texas
Trial Court Nos. 1006276 and 1033930
MEMORANDUM Opinion
A jury convicted Lamont Marcelous Gilbert of felony driving while intoxicated and evading arrest. By agreement, Gilbert was sentenced to a concurrent term of five years’ imprisonment and 150 days’ imprisonment, respectively. Gilbert contends that there is legally and factually insufficient evidence to support conviction on either charge. We will affirm.
When reviewing a challenge to the legal sufficiency of the evidence, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The court may not re-evaluate the weight and credibility of any evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Inconsistencies in the testimony are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
The standard of review for a factual sufficiency claim was recently revisited by the Court of Criminal Appeals in Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). We, as the reviewing court, ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson, 204 S.W.3d at 414-415; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court does not indulge in inferences or confine its view to evidence favoring one side. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. Id. If an appellate court concludes that the evidence is factually insufficient, it must clearly state why it has reached that conclusion. Watson, 204 S.W.3d at 417; Johnson, 23 S.W.3d at 7 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).
In this case, Houston Police Officer Warren Jost testified to observing a Chevrolet Cavalier run a stop sign. When he attempted to stop the vehicle, the driver first began to pull over and then sped off leading Jost on a chase. At the outset, Jost called in the license plate number of the vehicle. During the chase, Jost was hit by a truck, but he was able to continue the pursuit. Eventually, the driver pulled into the parking lot, and Jost intentionally crashed into the driver’s side of the car disabling the vehicle. The disabled vehicle had the same license plate number as that called in by Jost. The driver, Gilbert, initially refused to leave the vehicle. Eventually, officers forcibly removed Gilbert from the vehicle. Officers noticed that Gilbert smelled of alcohol, had bloodshot eyes, was combative, and was unable to walk or stand on his own. Once taken to the police station, Gilbert refused to take field sobriety tests or a intoxilyzer test.
Gilbert contends that the evidence is legally and factually insufficient to support a finding that he was intoxicated or that he evaded arrested. Specifically, Gilbert claims this is a case of mistaken identity. He was not the driver who ran the stop sign and led police on a chase, claims Gilbert. He simply drove the same make and model of car.
In support of this, Gilbert argues that the credibility of the officers who had responded to the scene had been undermined by conflicting testimony and a rebuttal witness. It is highly improbable, according to Gilbert, that Officer Jost maintained constant sight of car he was chasing, as Jost testified. Gilbert noted that Officer Jost’s dashboard camera malfunctioned during the chase, and cannot corroborate the officer’s testimony. Also, Gilbert notes that Jost testified he stopped the Cavalier at 5:42 p.m., but the video in the police car noted the time as 5:24 p.m. Jost claimed the inconsistency was due to the video equipment having consistently had an incorrect time stamp. In addition, one officer, who arrived on the scene after the chase, described Gilbert as surprised and confused, which Gilbert claimed was because of the mistaken identity. Finally, Gilbert noted he was stopped at 5:42 p.m. but did not arrive at the police station until 8 p.m. He claims this delay was to allow the responding officers time to think of a story to cover having crashed into and arrested an innocent man.
As a rebuttal witness, a Houston attorney testified that Gilbert had been in his office that afternoon until about 5 p.m. and could not have traveled, in the time allowed, to the intersection where Jost claimed to have seen Gilbert run a stop sign. The attorney also testified that Gilbert was not intoxicated when he left the office. On cross examination, the attorney admitted that he could not be certain of the day or time of Gilbert’s visit, and that he was not personally familiar with traffic in that area.
Gilbert concedes that his claims of the sufficiency of the evidence turn on the authority and weight given by the jury to the State’s witnesses. In conducting a legal sufficiency analysis, credibility must not be reweighed by the appellate court. Dewberry, 4 S.W.3d at 740. Nonetheless, Gilbert urges this Court to find that the Texas Constitution grants a broader scope of review than that which has been articulated by the Court of Criminal Appeals. Specifically, Gilbert contends total deference should be not owed to the jury’s determination of witness credibility, but rather, a witness’s credibility can be so undermined as to render the testimony insufficient to support a verdict. However, it is precisely this standard which is embraced in the factual sufficiency review. See Watson, 204 S.W.3d at 416-17. In a legal sufficiency review, courts are precluded from taking the role of the so called “thirteenth juror.” Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Thus, we overrule issue number one regarding the legal sufficiency of the evidence.
With regard to factual sufficiency, the nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as “thirteenth juror” to review the fact finder’s weighing of the evidence and disagree with the fact finder’s determination. Watson, 204 S.W.3d at 416-17 (citing Tibbs v. Florida, 457 U.S. 31, 42-3, 102 S. Ct. 2211, 2218, 72 L. Ed. 2d 652 (1982); Meraz v. State, 785 S.W.2d 146, 156 (Tex. Crim. App. 1990)). In so doing, the appellate court may not simply overrule the jury’s resolution of a conflicting of evidence; rather, the court must have an objective basis demonstrated in the record to hold that the verdict is clearly wrong. Watson, 204 S.W.3d at 414-17.
The jury chose to believe the State’s version of events, and we find no reason in the record to not defer to the jury in its resolution of alternative theories of the case. See Watson, 204 S.W.3d at 416-17; Parker v. State, 119 S.W.3d 350, 355 (Tex. App.—Waco 2003, pet. ref’d). Thus, we cannot conclude that the State’s evidence is so weak or the conflicting evidence so strong as to render the verdict manifestly unjust. Watson, 204 S.W.3d at 414-15. We overrule issue two.
Having overruled each of Gilbert’s issues, we affirm the conviction.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed January 10, 2007
Do not publish
[CR25]