Affirmed and Memorandum Opinion filed October 21, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-01049-CR
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JOHN MANUEL SANCHEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 50,665
M E M O R A N D U M O P I N I O N
Appellant, John Manuel Sanchez, challenges his conviction for felony driving while intoxicated. Appellant pleaded true to the enhancement paragraph that he had been convicted of driving while intoxicated twice before, and the jury assessed punishment at confinement for 10 years. Appellant contends that the evidence was legally and factually insufficient to support a finding of intoxication. We affirm.
Background
Shortly after midnight on October 23, 2005, Surfside Beach Police Officer Earl Felton was traveling northbound when he noticed appellant traveling southbound and speeding. Officer Felton stopped appellant for driving 62 miles per hour in a 40-mile-per-hour speed zone. No electronic recording of this traffic stop was made due to mechanical failure of Officer Felton=s in-car video recording equipment. The area in which the stop occurred included an S-shaped curve and few street lights.
Upon reaching the driver=s side door of appellant=s truck, Officer Felton smelled alcohol on appellant=s breath or person. Officer Felton also noticed that appellant had red, glossy eyes. Officer Felton asked appellant if he had been drinking that night. Appellant replied that he had consumed Atwo or three beers.@
Officer Felton asked appellant if he would submit to any of three different field sobriety tests. Appellant declined. Officer Felton then took appellant into custody, read appellant the required statutory DWI warnings, and asked appellant to take a breathalyzer test. Appellant declined to take a breathalyzer test and refused to sign the DWI warnings.
Officer Felton testified at trial that appellant did not slur his speech or sway as he was exiting his truck, and that appellant was not swerving or driving erratically during the time Officer Felton observed him. Officer Felton opined that the area at which he stopped appellant was Avery dark@ and that appellant was not driving carefully.
Officer Felton opined that appellant was intoxicated on the evening of October 23, 2005. Officer Felton testified that he based his opinion on appellant=s admission to having had alcohol that evening; appellant=s red, glossy eyes; and the strong odor of alcohol on appellant=s breath or person. Officer Felton had been a police officer for five years at the time he stopped appellant and testified to having made many DWI arrests. Officer Felton opined that appellant had lost the normal use of his mental or physical faculties due to the introduction of alcohol into his body.
Appellant offered no evidence in his defense.
Analysis
Appellant challenges both the legal and factual sufficiency of the evidence to support the jury=s finding that he was intoxicated. Appellant does not challenge the jury=s findings regarding the other elements of the offense charged.
I. Legal Sufficiency of Evidence Supporting Finding That Appellant Was Intoxicated
The offense of felony driving while intoxicated contains four elements: (1) operation of a motor vehicle; (2) while intoxicated; (3) in a public place; (4) when the defendant has two or more previous convictions for any other offense relating to operating a motor vehicle while intoxicated. See Tex. Penal Code Ann. _ 49.04(a) (Vernon 2003), _ 49.09(b)(2) (Vernon Supp. 2008). AIntoxicated@ is defined as Anot having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body.@ Id. _ 49.01(2)(A) (Vernon 2003). Appellant challenges only the jury=s finding regarding the element of intoxication.
In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the State to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). When reviewing legal sufficiency of the evidence, the court does not sit as a thirteenth juror and may not re-evaluate the weight and credibility of the record evidence or substitute its judgment for that of the fact finder. Dewberry, 4 S.W.3d at 740.
Reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The appellate court=s duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996). An appellate court faced with a record of facts that supports conflicting inferences must presume C even if not obvious from the record C that the finder of fact resolved any such conflicts in favor of the State, and must defer to that resolution. Jackson, 443 U.S. at 326.
The opinion testimony of the arresting officer alone is legally sufficient to support a finding of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979); Hartman v. State, 198 S.W.3d 829, 835 (Tex. App.BCorpus Christi 2006, pet. struck). A defendant=s refusal to take a breathalyzer test may be considered by the fact finder as evidence of intoxication. Finley v. State, 809 S.W.2d 909, 913 (Tex. App.BHouston [14th Dist.] 1991, pet. ref=d).
Officer Felton testified to the following at trial: (1) appellant was driving 22 miles per hour over the speed limit when Officer Felton initiated the traffic stop; (2) there was an odor of alcohol on appellant=s breath or person; (3) appellant had red, glossy eyes; (4) appellant admitted to drinking Atwo or three beers@ earlier in the evening on October 23, 2005; (5) appellant declined to take any field sobriety tests or a breathalyzer test; (6) appellant refused to sign the required statutory DWI warnings; (7) appellant had lost the normal use of his mental or physical faculties due to drinking alcohol; (8) the area where appellant was stopped was Avery dark@ and appellant was not driving carefully under the circumstances; and (9) it was his opinion that appellant was intoxicated. A rational fact finder viewing this evidence in the light most favorable to the State could have found beyond a reasonable doubt that appellant was intoxicated. See Vaughn v. State, 493 S.W.2d 524, 526 (Tex. Crim. App. 1972); Fontenot v. State, 486 S.W.2d 941, 941-42 (Tex. Crim. App. 1972); Day v. State, 474 S.W.2d 246, 246 (Tex. Crim. App. 1971).
We overrule appellant=s issue regarding legal sufficiency of the evidence to support the jury=s finding that appellant was intoxicated.
II. Factual Sufficiency of Evidence Supporting Finding That Appellant Was Intoxicated
When conducting a factual sufficiency review, an appellate court must determine (1) whether the evidence introduced to support the verdict is Aso weak@ that the fact finder=s verdict seems Aclearly wrong and manifestly unjust,@ and (2) whether, considering conflicting evidence, the fact finder=s verdict is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). In the case of rejection of a defense by the finder of fact, an appellate court reviews all of the evidence in a neutral light and asks whether the State=s evidence taken alone is too weak to support the finding and whether the proof of guilt is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).
An appellate court should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Due deference still must be given to the fact finder=s determinations concerning the weight and credibility of the evidence, and reversal of those determinations is only appropriate to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004) (citing Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003)).
In cases based upon circumstantial evidence, it is not required that all facts point to a defendant=s guilt; it is sufficient if the combined and cumulative force of all of the incriminating circumstances warrants the conclusion of guilt. See Courson v. State, 160 S.W.3d 125, 128 (Tex. App.BFort Worth 2005, no pet.) (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (en banc)).
Appellant highlights the following evidence in support of his contention that the evidence was factually insufficient to support a finding of intoxication: (1) no electronic recording of appellant=s traffic stop exists to corroborate Officer Felton=s testimony; (2) appellant was within his rights to decline to submit to any field sobriety tests or breathalyzer test; (3) Officer Felton testified that appellant did not slur his speech or sway when exiting his truck; (4) Officer Felton testified that he did not see appellant swerve or drive erratically; (5) Officer Felton testified that explanations other than intoxication could exist for appellant=s glossy eyes and speeding and the odor of alcohol on appellant; and (6) Officer Felton testified that a person could drink two or three beers and not be intoxicated.
However, the record also contains ample evidence supporting a finding that appellant was intoxicated, as described in the above discussion of legal sufficiency. In addition to that evidence, when Officer Felton was cross-examined about other reasons why appellant may have been speeding, had glossy eyes, or smelled of alcohol, he was asked about each of those traits standing alone; appellant exhibited all of these traits at once. Officer Felton did not testify that appellant specifically could drink two or three beers without becoming intoxicated. Officer Felton testified that he only observed appellant=s driving very briefly because he had to perform a U-turn to initiate the traffic stop and he activated his overhead lights as soon as he finished turning around.
Furthermore, the statute requiring counties with 25,000 persons or more to use video recording equipment in all DWI cases provides the exclusive sanction for its violation. See Click v. State, 745 S.W.2d 480, 482 (Tex. App.BCorpus Christi 1988, pet. ref=d) (allowing admission into evidence of failure to record). Under the statute, the failure to record a traffic stop does not go so far as to create a presumption of a defendant=s innocence.
Appellant argues that Officer Felton only testified to three of the six examples of evidence of intoxication found in Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (slurred speech, bloodshot eyes, unsteady balance, staggered gait, odor of alcohol on breath, odor of alcohol on person); see also Harris v. State, 204 S.W.3d 19, 25 (Tex. App.BHouston [14th Dist.] 2006, pet. ref=d). However, the list found in Cotton is neither exclusive nor mandatory, as evidenced by its inclusion of the phrase Aamong other things@ at the end of the list and by the fact that the list was compiled from individual examples of intoxication evidence from multiple cases. See Cotton, 686 S.W.2d at 142 n.3.
The evidence in this case is factually sufficient to justify the jury=s finding that appellant was intoxicated. The jury=s finding is neither Aclearly wrong and manifestly unjust@ nor against the great weight and preponderance of the evidence.
We overrule appellant=s issue regarding factual sufficiency of the evidence to support the jury=s finding that appellant was intoxicated.
Conclusion
The trial court=s judgment is affirmed.
/s/ William J. Boyce
Justice
Judgment rendered and Memorandum Opinion filed October 21, 2008.
Panel consists of Justices Yates, Seymore and Boyce.
Do not publish C Tex. R. App. P. 47.2(b).