COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CARLTON McMANUS, §
No. 08-11-00312-CR
Appellant, §
Appeal from the
v. §
County Criminal Court Number Four
THE STATE OF TEXAS, §
of Denton County, Texas
Appellee. §
(TC# CR-2010-05274-D)
§
OPINION
Appellant, Carlton McManus, appeals his conviction for driving while intoxicated,
contending that it is not supported by sufficient evidence.1 We affirm the judgment.
DISCUSSION
Standard of Review
In reviewing the sufficiency of the evidence to support a conviction, we view all of the
evidence in the light most favorable to the prosecution to determine whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d
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As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the
precedent of that court. TEX. R. APP. P. 41.3.
893, 895 (Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Such a standard not only gives full play to the responsibility of the trier of fact to resolve conflicts
in the testimony and to weigh the evidence accordingly, but it also enables the fact finder to draw
reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235
S.W.3d at 778. Indeed, the trier of fact is the sole judge of the weight and credibility of the
evidence, see Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S.Ct.
2075, 173 L.Ed.2d 1139 (2009), and therefore we, in performing our sufficiency review, may not
re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the
fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S.
1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). Instead, we determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.
Crim. App. 2007). Moreover, we presume that the fact finder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d
at 778.
To prove that a person was driving while intoxicated, the State must prove that the
defendant operated a motor vehicle while intoxicated in a public place. TEX. PENAL CODE ANN. §
49.04(a) (West Supp. 2012). “Intoxicated” means not having the normal use of mental 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 having an
alcohol concentration of 0.08 or more. TEX. PENAL CODE ANN. § 49.01(2)(A), (B) (West 2011).
A fact finder’s conclusion that a person was intoxicated may be based upon evidence of the
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defendant’s bad driving, unusual actions, sound of speech, appearance, smell of alcohol, and
unsteadiness. See Bagheri v. State, 329 S.W.3d 23, 27-28 (Tex.App. – San Antonio 2010, pet.
ref’d).
Before the trial court was evidence that Officer Justin Shaffer of the Dallas Police
Department observed Appellant’s failure to signal two lane changes for which Officer Shaffer
initiated a traffic stop. Appellant continued driving his vehicle for several blocks without
stopping and then pulled into an apartment complex parking lot and attempted to enter the complex
through a locked gate without noticing the flashing lights on the patrol car or that the officers were
attempting to stop him. When Officer Shaffer and his patrol partner, Officer Stephen McKee,
eventually encountered Appellant, Appellant’s eyes were bloodshot, his speech was slurred, and
an odor of an alcoholic beverage was emanating from his person. Appellant admitted that he had
consumed alcohol and the officers found cool-to-the-touch open containers of alcoholic beverages
in the center console of Appellant’s vehicle. Appellant was uncooperative during most of the
DWI investigation. After the officers formally requested a breath or blood specimen and warned
Appellant that his refusal could be used against him, Appellant refused to provide any specimens.
Appellant was asked to perform the horizontal gaze nystagmus test but Officer Shaffer was
unable to score more than two components, which indicated signs of intoxication, either because
Appellant was physically incapable of performing the test or was not cooperating. Appellant
demonstrated four of eight clues on the walk-and-turn test but only one clue of intoxication on the
one-leg-stand test.
Although a video recording was made, the file containing the recording was corrupted and
unavailable as evidence. A recording of Appellant in the “intox” room after his arrest was
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admitted into evidence.
The trial court was permitted to consider Appellant’s refusal to provide a breath or blood
specimen as evidence of his guilt. Standefer v. State, 59 S.W.3d 177, 183 n.26 (Tex.Crim.App.
2001); TEX. TRANSP. CODE ANN. § 724.061 (West 2011) (evidence of a defendant’s refusal to
submit to breath or blood testing in a driving-while-intoxicated investigation is admissible at trial);
Finley v. State, 809 S.W.2d 909, 913 (Tex.App. – Houston [14th Dist.] 1991, pet. ref’d) (fact
finder may make proper inference of guilt from refusal to provide specimen). Moreover, the
unavailability of a video recording of the DWI investigation does not render the evidence
insufficient. Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979); Irion v. State, 703
S.W.2d 362, 364 (Tex.App. – Austin 1986, no pet.). The testimony of the officer is sufficient to
prove elements of intoxication in the absence of a video recording. Irion, 703 S.W.2d at 364.
The determination that Appellant was intoxicated while driving a motor vehicle is also supported
by evidence that Appellant was observed driving a motor vehicle, his failure to signal lane changes
and to pull over for officers while driving the vehicle, his refusal to provide specimens for testing,
the sound of Appellant’s speech, his bloodshot eyes, the standardized clues indicating intoxication,
the open containers of alcoholic beverages in Appellant’s vehicle, as well as Appellant’s
admission to officers that he had been drinking.
While recognizing that the low score on tests administered could be weighed in
Appellant’s favor, they are certainly not conclusive. We presume the fact finder resolved any
conflicts in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326; Clayton,
235 S.W.3d at 778. We find the trial court’s inferences to be reasonable based upon the combined
and cumulative force of all the evidence when viewed in the light most favorable to the verdict.
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Hooper, 214 S.W.3d at 16-17. Appellant’s issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
GUADALUPE RIVERA, Justice
August 7, 2013
Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating
(Do Not Publish)
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