In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00100-CR
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TRACI LOWE THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court
Hardin County, Texas
Trial Cause No. 59082
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MEMORANDUM OPINION
After a bench trial, the trial court convicted appellant Traci Lowe Thomas of
misdemeanor driving while intoxicated and assessed punishment at confinement in
the Hardin County jail for ninety days, but suspended imposition of the sentence
and placed Thomas on community supervision for one year. In her sole appellate
issue, Thomas challenges the legal sufficiency of the evidence supporting her
conviction. We affirm the trial court’s judgment.
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THE EVIDENCE
Officer Robert Brothers III of the Lumberton Police Department testified
that he made contact with Thomas on March 22, 2008, at approximately 7:00 a.m.
after receiving a report of a vehicle being in a ditch. Officer Brothers testified that
when he arrived, he observed Thomas in the fetal position in the driver’s seat of
the car that had crashed into the ditch. Officer Brothers testified that no one else
was in the vehicle when he arrived on the scene, but Thomas’s husband was at the
scene.
When Officer Brothers began investigating what had happened and talking
to Thomas, he noticed that Thomas’s speech did not seem normal. According to
Officer Brothers, Thomas’s speech was slow, depressed, and slurred, and it was
difficult to understand what she was saying. Officer Brothers also testified that
Thomas was speaking “below a normal tone[,]” and he found her slow and
depressed speech suspicious. When EMS personnel arrived and began assisting
Thomas with stepping out of her car, Officer Brothers was sitting in his vehicle
watching, and he testified that Thomas’s movements seemed atypical and she
required assistance getting out of her vehicle. Thomas’s movements made Officer
Brothers suspicious that she might have been driving while intoxicated. Officer
Brothers spoke to Thomas after she was in the ambulance and he asked her if she
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had taken any medication, and she responded that she had taken Vicodin
approximately two hours earlier. Officer Brothers explained that based upon his
observations and his investigation, he believed Thomas had lost the use of her
mental and physical faculties due to the introduction of a drug into her system.
Officer Brothers testified that an in-car video was made of the scene, and the
DVD was admitted into evidence and viewed by the trial judge. On the DVD,
officers can be heard telling Thomas that her speech is slurred and they cannot
understand her, and Thomas is visible upon being assisted from her car. According
to Officer Brothers, Thomas was taken to Baptist Hospital, and she declined to
give a blood sample upon being asked to do so. On cross-examination, Officer
Brothers testified that he does not know the difference between the signs of
intoxication and the signs of a concussion.
The trial court found Thomas guilty of driving while intoxicated and
assessed punishment at ninety days in jail, suspended over a period of one year,
and assessed a $500 fine. Thomas filed this appeal, in which she raises a single
issue for our consideration.
ISSUE ONE
In her sole issue, Thomas argues that the evidence was insufficient to
support her conviction. The “Jackson v. Virginia legal-sufficiency standard is the
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only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893,
895 (Tex. Crim. App. 2010). In evaluating the legal sufficiency of the evidence, we
review all the evidence in the light most favorable to the verdict to determine
whether any rational fact-finder could have found the essential elements of the
offense beyond a reasonable doubt. Id. at 902 n.19 (citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
The fact finder is the ultimate authority on the credibility of witnesses and
the weight to be given their testimony. Brooks, 323 S.W.3d at 902; Penagraph v.
State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the
fact finder’s responsibility to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we must
presume that the fact finder resolved such facts in favor of the verdict and defer to
that resolution. Brooks, 323 S.W.3d at 900 n.13; Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007). We also determine whether the necessary inferences
are reasonable based upon the combined and cumulative force of all the evidence
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when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at
778. We may not substitute our judgment for that of the fact finder concerning the
weight and credibility of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex.
Crim. App. 2000).
A person commits the offense of driving while intoxicated if the person is
intoxicated while operating a motor vehicle in a public place. Tex. Penal Code
Ann. § 49.04(a) (West Supp. 2012).1 The Texas Penal Code defines “intoxicated”
as follows: “(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 . . . .” Id. § 49.01(2)(A) (West 2011).
The trial court heard the testimony concerning Thomas’s slow, depressed,
slurred speech and difficulty moving, and viewed an in-car video recording of the
scene. The trial court also heard testimony that Thomas refused to give a blood
sample at the hospital when requested to do so. See Finley v. State, 809 S.W.2d
909, 913 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (Fact finder could
consider refusal to provide blood sample as evidence of guilt.). It was the trial
court’s responsibility as fact finder to fairly resolve any conflicts in the testimony,
1
Because the amendments to section 49.04 are not material to this appeal, we
cite to the current version of the statute.
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to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts, and we must presume that the trial court resolved conflicting
inferences in favor of the verdict and we defer to that resolution. See Brooks, 323
S.W.3d at 900 n.13, 902; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.
Viewing the evidence in the light most favorable to the verdict, we conclude that
the evidence was legally sufficient to support Thomas’s conviction. See Brooks,
323 S.W.3d at 902 n.19. Accordingly, we overrule issue one and affirm the trial
court’s judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on April 30, 2013
Opinion Delivered May 8, 2013
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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