Affirmed and Memorandum Opinion filed May 1, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-99-01229-CR
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SCOTT EVERETT SIMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 11
Harris County, Texas
Trial Court Cause No. 99-12819
M E M O R A N D U M O P I N I O N
O N R E M A N D
Scott Everett Sims appeals a misdemeanor conviction for driving while intoxicated (ADWI@) on the grounds that the evidence was legally and factually insufficient to support his conviction. On remand,[1] we affirm.
Standard of Review
When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003). In reviewing factual sufficiency, we look at all of the evidence to determine whether it is so weak as to make the jury verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the available evidence. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A factual sufficiency review must include a discussion of the most important and relevant evidence that appellant asserts in support of his complaint on appeal. Id. at 603.
Sufficiency Review
In this case, the jury was authorized to convict appellant of DWI if it found that, while operating a motor vehicle in a public place, he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body. See Tex. Pen. Code Ann. '' 49.01(2), 49.04(a) (Vernon 2003). In challenging the legal and factual sufficiency of the evidence, appellant contends that: (1) there was neither scientific evidence that he was intoxicated nor legally sufficient evidence that he was impaired by reason of having alcohol in his body; and (2) the controverting evidence, particularly the police audio and video tapes, showed that he was in full possession of his faculties.
At trial, the arresting officer, Jonathan Forbes, testified that he was specially trained, through a DWI certification program, to recognize intoxicated persons and had previously worked for six to eight months with the DWI enforcement program. Forbes witnessed appellant=s vehicle drive straight through a right turn-only lane, almost striking a curb, then swerve across three lanes to make a left turn. Additionally, Forbes testified that he drove behind appellant, with his emergency lights on and his horn and siren sounding, for approximately five hundred yards before appellant stopped.
After pulling appellant=s vehicle over, Forbes noticed that appellant=s breath smelled of alcohol and that his eyes were watery and bloodshot. Forbes testified that appellant took several minutes to locate his driver=s license, even skipping over it several times while fumbling through his wallet. Upon exiting his vehicle, appellant used the roof and door to climb out and then continued to lean on the vehicle. Forbes testified that upon receiving his ticket, appellant stated, AWell, a drunk man made a mistake on the policeman=s ticket.@ Forbes attempted to administer a horizontal gaze nystagmus test, but appellant moved his head. Further, Forbes testified that he found an open can of cold beer standing upright on the floorboard under the middle of the bench seat of appellant=s vehicle. Forbes testified that based on these facts, his opinion was that appellant was intoxicated and did not have control of his mental and physical faculties. Because a rational trier of fact could infer from Forbes=s testimony that appellant had lost the use of his mental and physical faculties by reason of the introduction of alcohol into his body, the evidence is legally sufficient to support his conviction.
With regard to factual sufficiency, Shirley Hardin, a passenger in appellant=s vehicle, and appellant testified contrary to Officer Forbes. Hardin said she never felt that appellant was driving unsafely and denied that he made the lane-crossing turn or almost hit the curb. Additionally, she testified that she never saw appellant place a beer can in the truck and denied that appellant exited the car with two hands and hung onto the side of the truck while talking to Forbes. Further, Hardin claimed appellant=s eyes were bloodshot and watery because he was allergic to the cats that live at her chiropractic clinic, where he had picked her up that night.
Similarly, during appellant=s testimony, he denied that the officer followed him with emergency lights and siren on or that he exited the car strangely, leaned on his truck, had difficulty finding his license, or was drunk or impaired at the time of his arrest. In addition, appellant stated he made the statement to the officer about the mistake on the ticket after the officer accused him of being intoxicated.
In the audiotape made during appellant=s traffic stop, we hear nothing to contradict the officer=s observation of alcohol intoxication. In addition to what the officer testified, appellant resisted getting out of the vehicle when asked and was argumentative. The pace and inflection of his speech are also abnormal in a way that could readily be associated with intoxication. Moreover, a female voice on the tape, if Hardin, was even more argumentative and less coherent than appellant and could well have undermined the credibility of her trial testimony.
In the video tape at the station, appellant=s speech sounds less impaired than in the audio tape of the traffic stop, although several of his statements in the video tape are inaudible. However, during the videotape, appellant dropped a sheet of paper while trying to hand it to the officer, declined to give a breath specimen, and scolded the officer for arresting him. If anything, this evidence also supports appellant=s conviction as much as it refutes it.
On balance, although there is conflicting evidence regarding appellant=s condition on the night of his arrest, it is not so weak as to make the jury verdict clearly wrong and manifestly unjust, and the adverse finding is not against the great weight and preponderance of the available evidence. Because appellant=s first and second issues thus do not establish that the evidence is legally or factually insufficient to convict him of DWI, they are overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Opinion filed May 1, 2003.
Panel consists of Justices Edelman, Frost, and Lee (Senior Justice Norman Lee not participating).
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The Court of Criminal Appeals vacated our March 8, 2001 opinion and remanded the case for discussion in our factual sufficiency review of the evidence that appellant asserted was the most important in refuting the State=s evidence of guilt. See Sims v. State, 99 S.W.3d 600, 601,604 (Tex. Crim. App. 2003).