NUMBER 13-13-00369-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE ANGEL LERMA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 219th District Court
of Collin County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Perkes
Memorandum Opinion by Justice Garza
Appellant, Jose Angel Lerma, appeals his third conviction for driving while
intoxicated (“DWI”), a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04(a),
49.09(b)(2) (West, Westlaw through 2013 3d C.S.). The trial court assessed punishment
at ten years’ imprisonment, suspended the sentence, and placed Lerma on community
supervision for seven years. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3(a) (West,
Westlaw through 2013 3d C.S.). We affirm.1
I. BACKGROUND
Clayton Platt testified that he was employed as a highway patrol trooper and was
patrolling the Sam Rayburn Tollway in McKinney, Texas, at around 1:00 a.m. on May 26,
2012. Platt was parked in his marked patrol car on the northbound shoulder when he
heard a “loud, grinding noise coming up.” He observed “a passenger car on the access
road traveling northbound” with “what appears to [be] no tire on the front left and it’s just
sparking as it’s driving along, sparks coming out the sides and sparks coming out the
rear.” Platt drove up behind the car and activated his emergency lights. The driver, whom
Platt identified as Lerma, “[d]idn’t appear to react at all” to the emergency lights.
According to Platt, Lerma was “driving relatively slowly but weaving the whole time.”
Another officer pulled up alongside Lerma “in order to get [his] attention.” Platt used his
patrol unit’s public address system—“turned up as loud as it could be”—to demand that
Lerma stop. Eventually, after about a minute and a half, the car stopped. Platt removed
Lerma from the car at gunpoint. Because Lerma “wasn’t really complying,” another officer
“did a leg sweep” and “took him to the ground.”
Platt stated: “At that point [we] went up and just started talking with him. We’re
talking with him, there’s an immediate strong odor of alcohol coming from his
breath. . . . His eyes were really glassy.” Platt therefore decided to conduct three
standardized field sobriety tests: horizontal nystagmus, walk-and-turn, and one-leg
stand. In order to determine whether Lerma was a good candidate for a horizontal
1This appeal was transferred from the Fifth Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).
2
nystagmus test, Platt asked Lerma about any prior head injuries. Lerma stated that he
“hit [his head] on the first-aid kit . . . at his office” but did not indicate that “he was still
having issues with [the injury].” Lerma also complained of “flu-like symptoms” and that
his head was hurting. Platt determined that Lerma was a good candidate for the
horizontal nystagmus test. The horizontal nystagmus test showed clues of “lack of
smooth pursuit,” “distinct and sustained nystagmus at maximum deviation,” and “onset of
nystagmus prior to 45 degrees” in each eye. According to Platt, these results “certainly
indicated intoxication at that point.”
In order to determine whether Lerma was a good candidate for the walk-and-turn
test, Platt asked Lerma if he had any leg or back injuries. Lerma told him that “a month
or two ago . . . a piece of steel hit him in the shin at work.” Platt testified: “So—he’d
already informed me that he worked at a data entry center, so I was a little—little confused
at this point at the—it’s a pretty dangerous data entry center to be having all these injuries
he had.” Lerma also “said he had a little pain in his back but nothing that would keep him
from walking.”2 Platt determined that Lerma was a good candidate for this test. After
administering the test, Platt observed two out of a possible eight clues of intoxication; in
particular, Lerma “failed to keep his balance during the instructions” and “did not touch
heel-to-toe as instructed.” Platt stated that, for this test, “two or more clues indicate
intoxication.”
Finally, Platt administered a one-leg stand test. During this test, Lerma was asking
2 When asked whether “for every test [Lerma] gave you a reason why he might have an injury in
that area,” Platt replied: “He did.” However, he did not believe those alleged injuries would affect his ability
to perform the sobriety tests because: “Not only did I ask him if he’s okay to perform them, but I didn’t see
any indication other than him saying that happened . . . that it was still affecting him.”
3
“confusing” questions and was “not really communicating effectively.” 3 Platt observed
three out of a possible four clues of intoxication; in particular, Lerma was “swaying back
and forth,” he put his foot down, and he hopped. Platt stated that, as with the walk-and-
turn test, the presence of two or more clues in this test indicates intoxication. Based on
the results of all three field sobriety tests, Platt placed Lerma under arrest for DWI.
After the arrest, Platt placed Lerma in his patrol unit and asked for consent to take
a breath sample or a blood sample. Lerma refused to consent to either. However, Platt
stated that he was authorized by law to take a mandatory blood sample, see TEX. TRANSP.
CODE ANN. § 724.012(a) (West, Westlaw through 2013 3d C.S.),4 and so he transported
Lerma to the Medical Center of McKinney for that purpose. After the blood sample was
taken at around 2:15 a.m., Platt took Lerma to the Collin County Jail. Subsequent
analysis of the blood sample revealed an alcohol concentration of .06 grams per 100
milliliters, which is below the legal limit in Texas. See TEX. PENAL CODE ANN. § 49.01(2)(B)
(West, Westlaw through 2013 3d C.S.).
Platt denied that Lerma ever mentioned that something unusual had happened to
him earlier that day. He denied that Lerma was hesitant or afraid to speak with him. Platt
stated that he never was aware of any information indicating that Lerma “might need
3 Platt testified that, even though Lerma stated that he was heading to his home in Lewisville, Lerma
was traveling northbound, away from Lewisville. Platt agreed that, at one point, Lerma “[was] sure he [was]
in Lewisville and [the officers were] messing with him.”
4 In fact, the mandatory blood draw statute requires an officer to take a breath or blood sample if
the officer has reliable information indicating that the DWI arrestee has two prior DWI convictions and the
arrestee refuses the officer’s request to submit to the taking of a sample voluntarily. See TEX. TRANSP.
CODE ANN. § 724.012(b)(3)(B) (West, Westlaw through 2013 3d C.S.). We have previously held that the
mandatory blood draw statute does not create a new and distinct exception to the Fourth Amendment
warrant requirement and that a blood draw is generally unconstitutional absent a warrant, exigent
circumstances, or consent. State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex. App.—
Corpus Christi Jan. 23, 2014, pet. granted). However, Lerma did not object to the admission of the blood
test results into evidence, and so we do not address that issue.
4
additional medical attention on that night.”
Platt testified that the fact that the alcohol content of Lerma’s blood sample was
under the legal limit does not affect his opinion about whether Lerma was intoxicated
because “it’s pretty clear from the totality of circumstances that night with dealing with him
that he was intoxicated.” Platt opined that “[i]t’s possible he was[] intoxicated solely on
alcohol, he just can’t handle .06,” and that, considering the blood test results, “it’s very
possible that he also had something else in his system.” He also speculated that Lerma’s
blood alcohol concentration may have declined somewhat between the time Lerma was
initially stopped by police and the time the blood was taken.
On cross-examination, Platt conceded that officers were unable to locate the tire
that had detached from Lerma’s car. He agreed that he had never been given training,
beyond “first responder basic training,” on how to identify symptoms of a stroke or other
neurological disorders. When asked whether it is possible that Lerma’s blood alcohol
concentration was below .06 at the time of driving, Platt replied: “Anything is possible,
sure.” He gave the same response to defense counsel’s question as to whether it was
possible that Lerma’s blood alcohol concentration increased from the time of driving to
the time of the blood draw.
DPS Trooper Matthew Kasenic testified that, on the night in question, he observed
Lerma’s vehicle “drive past me northbound on the service road with a loud grinding noise
and saw sparks, missing a tire.” While pursuing the vehicle along with Platt, he noticed
that the car was missing a tire on the front driver’s side. He shined a light on the driver
and noticed that the driver was “staring straight ahead” and “had both hands on the
steering wheel at a ten and two position.” The car eventually stopped and Platt directed
5
Lerma to get on the ground. According to Kasenic, Lerma did not comply with the order,
and so Kasenic “executed a leg sweep and placed the defendant on the ground behind
his vehicle and placed handcuffs behind his back.” Kasenic then searched Lerma for
weapons. Kasenic noted that Lerma’s “speech was slurred” and he “could detect a strong
odor of alcohol[ic] beverage.”
Kasenic asked Lerma where he was headed and what he was doing. Lerma
replied that he was coming from Social 121, a bar located in Plano, and that he was
“headed home to Lewisville.” When Kasenic asked Lerma about the tire, Lerma “said
that he stopped to put air in it and he was just going home right down the street.” Kasenic
testified that these answers did not make sense because Lerma was traveling away from
Lewisville, which was “two cities away from where he was actually at,” and because there
was no tire into which Lerma could have put any air. Kasenic could not recall Lerma ever
mentioning anything about feeling badly or having any problem with his legs or his head.
Kasenic opined that Lerma was intoxicated that night, and the fact that Lerma’s blood
tested under the legal limit did not change his opinion.
A video recording of the traffic stop was played for the jury.
Andrew Macey, a DPS forensic scientist, testified that he analyzed the blood
sample taken from Lerma and that it contained 0.062 grams of alcohol per 100 milliltires
of blood, which is the under the legal limit of .08 grams per 100 milliliters. See id. He
also testified as follows regarding the rates of elimination and absorption in the blood:
Absorption rate is pretty much the time it takes for your body to absorb one
drink or several drinks, just depends on how many drinks you
have. . . . Elimination is the amount that the time it takes for your body to
actually eliminate the alcohol from your body.
Because absorption is so tricky and being that everybody absorbs
differently, different factors go into it, different types of alcohol absorb at
6
different rates. We just kind of like to have very wide range and say that
one drink would basically raise your alcohol level .01 to .03 per hour, that is
very broad. That’s not really known because everybody is different.
Elimination is a little bit more known and a little bit more consistent. The[re
a]re not as many factors that affect the elimination rate. So the range we
use on that is a little bit tighter, and it’s still kind of wide, and we use point
.01 to .02. It's probably closer to .015 to .018. But we use .01 to .02 just to
give an idea of the range it could be.
Macey stated that absorption rate can depend on, among other things, whether the
subject is male or female, what type of drink was consumed, whether other drugs were
consumed, and if the subject was ill. Elimination rate “normally depends on” whether the
subject is an experienced drinker or an alcoholic. Based on a blood alcohol concentration
test result and the absorption and elimination rates, a “retrograde extrapolation” can be
performed “to work backwards to have an idea of what the number would be at earlier
time of the day.” However, according to Macey, “it’s very difficult” to make a retrograde
extrapolation when the time of the last drink consumed is not known.
Macey opined that “[i]t is possible” that a person “could have consumed two beers,
been pulled over at 1:15 and then at 3:00 a.m. have an alcohol concentration of [.06].” In
Macey’s opinion, after an hour and 45 minutes of not drinking, a subject would be “more
on the elimination side than on the absorption side.” However, “[b]ecause the alcohol
curve goes up as you’re drinking and then you go down as you’re eliminating, there’s a
possibility in that hour and 45 minutes that you actually could be the same as you were
at the time of the draw or higher or lower.” He stated that, given Lerma’s blood test result
and the time elapsed since the traffic stop, his blood alcohol concentration at the time of
driving could have been “anywhere from .03 to .04” and “up to .08, .085.”
Lerma testified that he is forty-two years old, that he has lived in the Dallas/Fort
Worth area for about twenty years, and that he has lived in Lewisville in particular for
7
about six years. He works as an analyst at a data center in Lewisville. Lerma stated he
was not intoxicated on the night in question. He acknowledged that his memory regarding
what happened was not clear, but he stated that he suffered “flu-like symptoms” that day.5
He stated that he got off work at around 6:00 p.m. and later met some friends at Pier 121,
a marina and restaurant in Lewisville where alcohol is sold.6 Lerma testified that he “took
three beers with [him]” to Pier 121—because “from my experience, I knew my limit”—but
that he drank only two of them. While he was at Pier 121, he started getting a “really
massive headache” such that he “fe[lt his] head [was] about to explode.” His legs became
“wobbly and shaky” and his “vision started to go out after a while.” He stated he “couldn’t
focus” and “couldn’t think right.” Nevertheless, he testified: “I decided, you know, I just
could go home and sleep it off or something like that. So I thought I could drive and go
home, you know.”
When asked how he knew that he only drank two beers if his memory was faded,
Lerma stated: “Because I—I told the officer there was another beer in the car, you know.
And, like I said, I knew my limits, after the second beer I already started feeling nauseated
and headache and stuff—with a headache.” The next thing he remembered was being
in jail.
Lerma did not recall hitting anything with his car, driving on a rim, or how he ended
up in McKinney. He denied taking any illegal drugs that evening. He stated his headache
5 Lerma elaborated:
I just thought it was the flu, and I had to wait to get over it. It was one thing after another
one, you know, allergies and then a cough, and then this stuffed nose and just—just like—
I thought it was flu symptoms that I could just fight, you know, medication over the counter
and get it over with.
6 Lerma denied knowing about, or ever having been to, Social 121.
8
“lasted probably close to three months” and that he continued to have blurred vision for
“two, three days after” the night in question. He saw a doctor and was prescribed blood
pressure medication and antibiotics for a sinus infection. His symptoms did not go away,
however, which scared him. He did not see a specialist because he did not have
insurance at the time. He has since had other diagnostic tests. He is currently being
treated for cholesterol, high blood pressure, and “a bad nerve coming from my head back
over here.” He agreed with defense counsel’s suggestion that he is “being treated at this
time for possibly having an onset of a ministroke.” Lerma stated that a doctor informed
him that he experienced a ministroke, but a CAT scan of his brain “didn’t show anything
yet.” Lerma denied that his behavior on the night in question was the result of any
accidents suffered at work.
Lerma stated that he knew that his behavior on the night in question was due to a
“medical issue,” not due to intoxication, because “two beers are not going to make me act
like that, the way I was acting; that’s not going to happen, no.”
The jury convicted Lerma as charged and the trial court sentenced him as set forth
above. This appeal followed.
II. DISCUSSION
Lerma argues by two issues on appeal that (1) the evidence was insufficient to
support the conviction, and (2) the indictment was defective because it failed to define
intoxication.
A. Evidentiary Sufficiency
In reviewing the sufficiency of evidence supporting a conviction, we consider the
evidence in the light most favorable to the verdict to determine whether any rational trier
9
of fact could have found the essential elements of the crime beyond a reasonable doubt.
Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier of fact to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) (citing Jackson, 443 U.S. at 318–19). When the record of historical facts supports
conflicting inferences, we must presume that the trier of fact resolved any such conflicts
in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326
S.W.3d 195, 200 (Tex. Crim. App. 2010).
Sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id. A hypothetically correct jury charge in this case would
state that Lerma is guilty if he: (1) operated a motor vehicle in a public place while he
was intoxicated; and (2) had twice been previously convicted of DWI as alleged in the
indictment. See TEX. PENAL CODE ANN. §§ 49.04, 49.09. “Intoxicated” means:
(A) not 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; or
(B) having an alcohol concentration of 0.08 or more.
10
Id. § 49.01(2) (West, Westlaw through 2013 3d C.S.).7 The two definitions of “intoxicated”
are referred to as the “impairment” theory and the “per se” theory, respectively. Kirsch v.
State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010).
Lerma does not dispute that the evidence was sufficient to show that he operated
his vehicle in a public place or that he was twice previously convicted of DWI. He
contends solely that the evidence was insufficient to support a finding of intoxication. We
disagree. Platt and Kasenic testified that Lerma drove his car without a front tire,
generating a trail of sparks. Platt stated that Lerma “[d]idn’t react at all” to his emergency
lights but instead drove slowly, “weaving the whole time,” and did not stop until Kasenic
pulled up alongside him and Platt used his public address system to order him to stop.
Platt testified that Lerma exhibited three clues of intoxication in the horizontal nystagmus
test; that he failed to keep his balance or “touch heel-to-toe” in the walk-and-turn test; and
that he swayed back and forth, put his foot down, and hopped during the one-leg stand
test. Kasenic stated that Lerma’s speech was slurred and both officers related that Lerma
gave nonsensical and confused answers to their questions. Crucially, the officers both
testified that there was a “strong odor” of alcohol coming from Lerma’s breath when he
was removed from the car. All of this evidence, taken together, would allow a reasonable
trier of fact to conclude beyond a reasonable doubt that Lerma did “not have[] the normal
use of mental or physical faculties by reason of the introduction of alcohol.” See TEX.
PENAL CODE ANN. § 49.02(1)(A); Kirsch, 306 S.W.3d at 745 (noting that “evidence that
would logically raise an inference that the defendant was intoxicated at the time of driving”
7 For blood tests, “alcohol concentration” means the number of grams of alcohol per 100 milliliters
of blood. TEX. PENAL CODE ANN. § 49.01(1) (West, Westlaw through 2013 3d C.S.)
11
includes “erratic driving,” “post-driving behavior such as stumbling, swaying, slurring or
mumbling words” and “inability to perform field sobriety tests or follow directions”).
Lerma contends that his “erratic behavior could be easily explained by
medical/neurological conditions.” Even assuming that is true, it was the jury’s prerogative
to believe or disbelieve that explanation. See Padilla, 326 S.W.3d at 200. It chose not to
believe that explanation, and because there was evidence to support its decision, we may
not disturb it.
Lerma also argues that “it should be undisputed that there was insufficient
evidence to support that [his] blood alcohol concentration was of .08 or more.” See TEX.
PENAL CODE ANN. § 49.01(2)(B). It is indeed undisputed that Lerma’s blood sample
contained an alcohol concentration of .062, and that this is under the legal limit. See id.
However, Macey testified generally that a person’s alcohol concentration at the time of
driving may be higher or lower than the level established by the blood test results
depending on the length of time that elapsed between the driving and the blood test and
on the absorption and elimination rates.8 In any event, under the statute, the jury was
authorized to convict if it found that Lerma was intoxicated either under the “impairment”
or “per se” definitions.9 See id. § 49.01(2); Kirsch, 306 S.W.3d at 743. We have already
8 Macey testified that, given the blood test results and the elapsed time between the arrest and the
blood draw, Lerma’s blood alcohol concentration at the time of driving could have been “anywhere from .03
to .04” and “up to .08, .085” depending on the rates of absorption and elimination. However, there was
confusion at trial as to how much time elapsed between the arrest and the blood draw. Platt testified that
the stop “was around 1:15 in the morning” and the blood sample was taken “probably about 2:10, 2:15 in
the morning”; but in questions posed to Macey, the prosecutor repeatedly referred to the time of the blood
draw as “3:00 a.m.” It appears that Macey assumed that the blood sample was taken at 3:00 a.m. in giving
his estimates regarding retrograde extrapolation. For this reason, we do not consider this specific testimony
probative as to Lerma’s potential alcohol concentration at the time of driving.
9The jury charge in this case contained only the “impairment” definition of “intoxicated.” See TEX.
PENAL CODE ANN. § 49.01(2)(A) (West, Westlaw through 2013 3d C.S.). Generally, if there is evidence to
support both definitions of the term, both should be submitted in the jury charge. Kirsch v. State, 306
S.W.3d 738, 743 (Tex. Crim. App. 2010).
12
concluded that there was sufficient evidence to prove intoxication under the “impairment”
definition. Accordingly, even if the evidence was insufficient to establish “per se”
intoxication, the conviction was nevertheless supported by sufficient evidence.
We overrule Lerma’s first issue.
B. Indictment
By his second issue, Lerma argues that the indictment was defective because it
failed to define intoxication. He argues that “[t]he definition of intoxication as found in
[penal code section] 49.01 is essential to make the offense a crime, and is indispensable
to the indictment.”
The State contends that Lerma waived the issue because he did not move to quash
the indictment or otherwise object to it prior to trial. We agree.
If the defendant does not object to a defect, error, or irregularity of form or
substance in an indictment or information before the date on which the trial
on the merits commences, he waives and forfeits the right to object to the
defect, error, or irregularity and he may not raise the objection on appeal or
in any other postconviction proceeding.
TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West, Westlaw through 2013 3d C.S.). Because
Lerma did not present this argument to the trial court at any time, it has not been
preserved for appeal. See id.; see also TEX. R. APP. P. 33.1(a).
Even if the issue had been preserved, it would not be meritorious. The United
States and Texas Constitutions grant criminal defendants “the right to fair notice of the
specific charged offense.” State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App.
2008) (citing U.S. CONST. amend. VI; TEX. CONST. art. I, § 10); see TEX. CODE CRIM. PROC.
ANN. art. 21.11 (West, Westlaw through 2013 3d C.S.). But in a DWI case, “the definitions
of ‘intoxicated’ are purely evidentiary matters” and “do not need to be alleged in a charging
instrument to provide a defendant with sufficient notice.” Barbernell, 257 S.W.3d at 256
13
(Tex. Crim. App. 2008) (noting that the definitions “set forth alternative means by which
the State may prove intoxication, rather than alternate means of committing the offense”);
see Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012).
Lerma’s second issue is overruled.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of April, 2015.
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