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Opinion filed September 21, 2006
In The
Eleventh Court of Appeals
__________
No. 11-05-00191-CR
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STATE OF TEXAS, Appellant
V.
MARK ROBERT MCCLELLAND, Appellee
On Appeal from the County Court at Law No. 2
Taylor County, Texas
Trial Court Cause No. 35,432
O P I N I O N
The State appeals from the trial court=s granting of judgment non obstante veredicto in favor of Mark Robert McClelland. We reverse and reinstate the jury=s verdict.
Background Facts
McClelland was charged by information with driving while intoxicated. He pleaded not guilty to a jury. After the State had presented its evidence, McClelland moved for an instructed verdict of not guilty for insufficiency of the evidence. The trial court denied the motion. The jury then returned a guilty verdict. The trial court sentenced McClelland to thirty days in the county jail and a $100 fine. After the jury was released and punishment was assessed, the court sent both parties a memorandum. It stated:
I am uncomfortable with the verdict. I declined to grant the Motion for Directed Verdict because I thought the jury would find the defendant not guilty. However, it is my belief the evidence did not support a finding of guilty beyond a reasonable doubt, and I would be inclined to grant a Motion for Judgment Non Obstante Veredicto.
McClelland subsequently filed a notion for judgment non obstante veredicto, and the trial court granted it. The State appeals from this judgment.
Issue on Appeal
In its sole issue on appeal, the State raises two questions. First, did the trial court have the authority to grant a judgment non obstante veredicto? Second, did the trial court abuse its discretion in granting the judgment non obstante veredicto?
Authority to Grant Judgment Non Obstante Veredicto
In a criminal case, the judgment must reflect the jury=s verdict. Tex. Code Crim. Proc. Ann. art. 42.01, ' 1(7) (Vernon Supp. 2006). A trial court does not have the authority to enter a judgment other than the verdict rendered by the jury. State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996). Therefore, a trial court=s granting of judgment non obstante veredicto is improper. Id.
However, a trial court may grant a motion for new trial based on legal insufficiency of the evidence. Id. When a jury returns a guilty verdict and the trial court later grants a motion for new trial based upon legal insufficiency of the evidence, the only judgment that can be entered is one of acquittal. Id. Double jeopardy prevents the State from re-trying a case when it initially fails to present legally sufficient evidence to convict. Moore v. State, 749 S.W.2d 54, 58 (Tex. Crim. App. 1988) (citing Hudson v. Louisiana, 450 U.S. 40 (1981), and Burks v. United States, 437 U.S. 1, 11 (1978)).
A trial court=s judgment non obstante veredicto has the same effect as a trial court granting a new trial for legally insufficient evidence. Savage, 933 S.W.2d at 499. Courts look to the effect of a motion irregardless of its title. State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992). Because the effect of the trial court granting McClelland=s judgment non obstante veredicto was the same as if it had granted a motion for new trial based on insufficiency of the evidence, we will review the order as if the trial court had granted a motion for new trial. See State v. Savage, 905 S.W.2d 268, 272 (Tex. App.CSan Antonio 1994), aff=d, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996).
Standard of Review
A trial court=s decision to grant a new trial is ordinarily reviewed for an abuse of discretion. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). But, a motion for new trial based on legal insufficiency of the evidence presents a legal rather than a factual question. State v. Daniels, 761 S.W.2d 42, 45 (Tex. App.CAustin 1988, pet. ref=d). When deciding whether to grant a new trial, the trial court views the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. When reviewing the evidence, the trial court may not substitute its beliefs for those of the jury. Id. If the evidence is sufficient to meet the above standard, a trial court abuses its discretion by granting a motion for new trial. Savage, 905 S.W.2d at 274.
Was the Evidence Sufficient?
The offense of driving while intoxicated occurs when a person operates a motor vehicle in a public place while intoxicated. Tex. Pen. Code Ann. ' 49.04 (Vernon 2003). Intoxicated means Anot having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.@ Tex. Pen. Code Ann. ' 49.01(2)(A) (Vernon 2003).
Both parties agree that the evidence established all the elements of driving while intoxicated except for intoxication. McClelland argues that there was not sufficient evidence to connect his behavior to the conclusion that he was under the influence of alcohol or a controlled substance to a degree rendering him incapable of operating a motor vehicle. We disagree.
Intoxication may be shown by circumstantial evidence in the absence of direct testimony. Smithhart v. State, 503 S.W.2d 283, 285 (Tex. Crim. App. 1973). Officer Michael Hobbs testified that he observed McClelland driving dangerously, swerving from lane to lane and changing speeds erratically. He further testified that McClelland refused to pull over and that he pursued McClelland for two to three minutes before he pulled over. Officer Hobbs testified that McClelland=s speech was very slow and slurred. Officer Hobbs stated that he did not smell any alcohol on McClelland=s breath at the scene but that he did at the jail. Officer Hobbs reasoned that he might not have smelled alcohol on McClelland at the scene because he was not very close to him and some hard liquors are hard to smell. Officer Hobbs testified that McClelland=s behavior was consistent with someone who was intoxicated. McClelland also adamantly refused to take a breath test. Evidence of a refused breath test is relevant to whether the person was driving while intoxicated. Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001); State v. Marrs, 104 S.W.3d 914, 918 (Tex. App.CCorpus Christi 2003, no pet.). McClelland testified at trial that the reasons for his behavior on the night of his arrest were that he had not slept in seventy-two hours and was under a lot of stress. However, McClelland did not provide this information to the officers when given the opportunity the night of the arrest. The jury was free to believe or disbelieve McClelland=s testimony. The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979). Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
Viewing the evidence in a light most favorable to the jury verdict, we conclude that the evidence was sufficient for the jury to find that McClelland=s intoxication was due to the introduction of alcohol into his system. There was sufficient evidence for a rational fact-finder to find all the essential elements of driving while intoxicated beyond a reasonable doubt. The trial court abused its discretion in granting the judgment non obstante veredicto. We sustain the State=s issue on appeal.
Conclusion
The trial court=s judgment is reversed, and the jury=s verdict convicting Mark Robert McClelland of driving while intoxicated is reinstated. The cause is remanded for the imposition of the thirty-day sentence.
RICK STRANGE
JUSTICE
September 21, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.