Affirmed and Memorandum Opinion filed August 3, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00440-CR
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HONORIO JAYME JARITAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 984,582
M E M O R A N D U M O P I N I O N
Appellant Honorio Jayme Jaritas challenges the legal and factual sufficiency of the evidence supporting his conviction of driving while intoxicated (ADWI@). We affirm.
I. Factual and Procedural Background
Around 3:00 a.m., on April 16, 2004, Harris County Deputy Jerry West, on patrol on the Gulf Freeway, spotted a burgundy Pontiac GrandAm automobile whose driver was unable to maintain a single lane of traffic. When the vehicle turned left without signaling, Deputy West activated his emergency lights to initiate a traffic stop. The driver, later identified as appellant, did not stop, prompting Deputy West to activate his siren. Appellant then pulled into a nearby empty parking lot. Just as Deputy West exited his vehicle, appellant left and drove into another parking lot nearby. Deputy West followed appellant into the second parking lot. Appellant exited his vehicle before shifting into park, and the car began to roll away. Appellant re-entered the vehicle to stop and park it. Appellant exited his vehicle a second time, but instead of walking toward Deputy West, he walked toward a third parking lot. Deputy West yelled at appellant to stop and put his hands behind his back. Initially, appellant did not comply. After appellant finally stopped, Deputy West noted that appellant was agitated, had bloodshot eyes, slurred speech, and a strong odor of alcohol on his breath. Four other officers arrived to assist Deputy West, one of whom also detected alcohol on appellant=s breath and noticed that appellant had bloodshot eyes. The officers brought appellant to the Houston Police Department. While at the police station, appellant refused to cooperate by giving a breath sample or submitting to sobriety tests.
Appellant has two prior misdemeanor DWI convictions, and was charged in this case with a felony DWI. Appellant did not contest the prior convictions, but pleaded Anot guilty@ to the charged offense. A jury found him guilty and the trial court sentenced him to four years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice, and assessed a fine of $339.00.
II. Legal and Factual Sufficiency of the Evidence
In two issues, appellant contends the evidence is legally and factually insufficient to show that he drove while intoxicated. In evaluating a legal-sufficiency challenge, we review the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The question is not whether a rational jury could have entertained a reasonable doubt of guilt, but whether it necessarily would have done so. Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003).
In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence without the prism of Ain the light most favorable to the prosecution@ and set aside the verdict only if it is Aso contrary to the overwhelming weight of the evidence to be clearly wrong and unjust.@ Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000). This concept embraces both Aformulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence.@ Id. at 11. Under this second formulation, the reviewing court essentially compares the evidence that tends to prove the existence of a fact with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 648.
A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. ' 49.04(a) (Vernon 2005). A person commits a felony offense of driving while intoxicated if it is shown at trial that the person had been twice convicted of the offense of operating a motor vehicle while intoxicated. Tex. Pen. Code Ann. ' 49.09(b)(2) (Vernon 2005). Appellant did not contest the two prior convictions.
Appellant contends the evidence is legally insufficient to prove he was intoxicated. Intoxication is (a) not having normal use of mental or physical faculties by reason of 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; or (b) having an alcohol concentration above 0.08 or more. Tex. Pen. Code Ann. ' 49.01(2)(A)B(B) (Vernon 2003). Appellant did not take an alcohol test in this case. Therefore, the State was required to prove that appellant, as a consequence of alcohol consumption, did not have the normal use of mental and physical faculties while operating his vehicle. See id. ' 49.01(2)(A).
The evidence at trial demonstrates that appellant was intoxicated. Deputy West observed appellant=s erratic driving and pulled him over. Initially, appellant refused to stop and then tried to flee, first by pulling into a different parking lot and then by walking away. Appellant was agitated and had bloodshot eyes. Deputy West detected a strong odor of alcohol on appellant=s breath at the scene. Based on Deputy West=s observations and appellant=s erratic driving before the stop, Deputy West concluded that appellant=s mental and physical faculties were impaired as a result of the consumption of alcohol.
Appellant, challenging Deputy West=s qualification to make the conclusion that appellant was intoxicated, argues that though Deputy West had been trained, he had not yet been certified in ADWI Recognition@.[1] Appellant also contends that his decision to leave the first parking lot and continue towards the second parking lot was based on safety concerns. Deputy West agreed that it is not uncommon for drivers to want to stop in a well-lit location, but noted that there was nothing unsafe about the first parking lot. Deputy Ancira, who assisted Deputy West in arresting appellant also, testified that appellant had bloodshot eyes and smelled of alcohol. Appellant does not challenge this testimony.
A third officer, John Miller, who attempted to get a breath sample from appellant, likewise testified that appellant=s eyes were bloodshot and his breath smelled of alcohol. Officer Miller stated that appellant refused to consent to a breath test and refused to sign a document noting he was refusing to submit to a breath test. Based on his interactions with appellant, Officer Miller believed that appellant had lost the normal use of his mental faculties due to the consumption of alcohol. Appellant asserts that he was within his Fifth Amendment rights to withhold consent to a breath test, that Officer Miller did not observe appellant for a sufficient period of time to accurately conclude appellant was intoxicated, and that Officer Miller=s conclusions were not based on any field sobriety tests. Appellant contends that Officer Miller relied solely upon appellant=s agitated state to conclude that he was intoxicated. Even if this were true, the accused=s refusal to submit to a breath test is admissible in a DWI trial without requiring a showing of why the accused refused a breath test. Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001). Because the definition of Aintoxicated@ includes not having the normal use of mental or physical faculties, any sign of impairment in an accused=s ability to perform a breathalyzer test is circumstantially relevant to whether the person was legally intoxicated while driving. See Finley v. State, 809 S.W.2d 909, 913 (Tex. App.BHouston [14th Dist.] 1991, pet. ref'd) (concluding that evidence of a defendant=s failure to submit to a breath test can be considered as evidence of guilt).
The final witness, Officer Paul McRae, who was operating the video camera in the room where suspects detained for suspicion of DWI are administered sobriety tests, testified that appellant refused to cooperate in doing the sobriety tests. Based on appellant=s slurred speech and irate behavior, Officer McRae concluded that appellant was intoxicated. The videotape of appellant=s interactions with Officer McRae was shown to the jury. By viewing this tape, the jury, like Officer McRae, easily could have concluded that appellant showed signs of intoxication in refusing to cooperate with the officer who, at one point, was simply attempting to read appellant his rights. Appellant contends that he was within his Fifth Amendment rights not to consent to the field sobriety tests, and that his behavior on the videotape could have been as a result of a feeling of being unjustly treated. While this may be true, evidence of appellant=s refusal is still admissible and relevant. See Griffith, 55 S.W.3d at 601B02.
An agitated state is not conclusive evidence that appellant was intoxicated, but the record contains ample other evidence sufficient to demonstrate that appellant was intoxicated. Appellant=s attempted flight from the scene could be considered by the jury to show a guilty mind. Thompson v. State, 563 S.W.2d 247 (Tex. Crim. App. 1978). In addition, his refusal to take a breath test is evidence of intoxication. See Mody v. State, 2 S.W.3d 652, 654 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d.). Finally, the evidence that appellant had slurred speech, bloodshot eyes, and an odor of alcohol on his breath are all indicative of intoxication. See Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985). Therefore, we conclude the evidence is legally sufficient to support appellant=s conviction.
As for appellant=s factual-sufficiency challenge, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Appellant relies on the same points in his factual-sufficiency challenge that he proffered to support his legal-sufficiency challengeCthe arresting officer allegedly was unqualified to determine whether appellant was intoxicated, appellant=s uncooperative behavior was justified by a feeling of unjust treatment, and appellant=s refusal to consent to sobriety tests is protected by the Constitution.
In this case, the officers made several observations about appellant=s intoxication. Although their testimony may be in conflict with appellant=s contention that he was agitated and felt unjustly treated, the jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given to the evidence. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). A factual-sufficiency challenge will not be sustained simply because the record contains conflicting evidence upon which the fact finder could have reached a different conclusion. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1998). A reviewing court may disagree with the fact finder=s resolution of conflicting evidence only when it is necessary to prevent manifest injustice. Id. at 164B65. A jury=s decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410.
After reviewing the evidence, we cannot conclude that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Under the applicable standard of review, the evidence is factually sufficient to support appellant=s conviction.
Having overruled both of appellant=s issues, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed August 3, 2006.
Panel consists of Justices Anderson, Edelman, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant does not bring a separate issue on appeal challenging Deputy West=s testimony as an expert witness. Thus, we do not address Deputy West=s qualifications as an expert witness in this appeal. However, even if Deputy West were not qualified to testify as an expert, his statements were admissible as lay witness testimony. Under the Texas Rules of Evidence, an officer may qualify to testify both under Rule 701 as a lay witness and Rule 702 as an expert. See Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997); Williams v. State, 826 S.W.2d 783, 785 (Tex. App.CHouston [14th] 1992, writ ref=d); Austin v. State, 794 S.W.2d 408, 410 (Tex. App.CAustin 1990, writ ref=d). Rule 701 provides that a lay witness may give an opinion or inference that is rationally based upon his perception and is helpful to the jury=s understanding of either the witness's testimony or the facts of the case. Tex. R. Evid. 701; see Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994) (holding lay opinion testimony by officer admissible to prove a person's intoxication). Additionally, intoxication measured by the loss of mental and physical faculties is patently observable, and does not require scientific testing. Letner v. State, 138 S.W.3d 539, 542 (Tex. App.CBeaumont 2004, no pet.).