COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00485-CR
CHRISTOPHER DANIEL LANE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
A jury found Appellant Christopher Daniel Lane guilty of driving while
intoxicated (DWI) with a child passenger and assessed his punishment at twenty-
two months’ confinement in state jail. See Tex. Penal Code Ann. § 49.045 (West
2011). The trial court sentenced him accordingly. In a single point, Lane argues
that the evidence was legally insufficient to prove that he was intoxicated.
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See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
At approximately 10:30 p.m. one night, Granbury Police Officer Richard
Branum saw a white truck turn right at an intersection without coming to a
complete stop at the red light. Officer Branum turned on his patrol lights, which
activated the video recorder in his patrol car, and stopped the truck. When he
made contact with the driver of the truck, Lane, the officer noticed that Lane’s
eyes were bloodshot and watery and could smell the odor of alcoholic beverage
on Lane’s breath. Lane’s girlfriend, Joy Holder, and her thirteen-year-old
daughter, Tristan Sandifer, were passengers in the truck.
Believing that Lane might be intoxicated, Officer Branum asked Lane to get
out of the truck. The officer testified that a Bud Ice beer bottle cap fell to the
ground when Lane stepped out, although this was not visible on the video.
Officer Branum conducted field sobriety tests on Lane. The officer observed six
out of six possible clues of intoxication from the HGN test,2 four clues on the
walk-and-turn test, and no clues on the one-leg-stand test. Officer Branum
arrested Lane.
On the drive to the jail, Lane called Officer Branum names and threatened
to “kick [his] ass” if he ever saw the officer out of uniform. At the jail, Lane pulled
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Lane told Officer Branum that he had an eye injury from being recently hit
in the face with a beer bottle and complained of pain when Officer Branum had
Lane follow the officer’s finger with his eye. Officer Branum testified that he had
checked Lane’s eyes for equal tracking and equal pupil size prior to conducting
the horizontal gaze nystagmus (HGN) test to verify that he was a “candidate[].”
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down his pants and made comments to jail staff about them wanting to see his
penis and look in his rectum area, and about the size of his testicles. Lane bent
over, spread his “cheeks,” and asked the jail staff “if they wanted to look up there,
too.” After Lane refused a blood test, Officer Branum submitted paperwork for a
mandatory blood withdrawal and took Lane to the Lake Granbury Medical Center
for the blood draw. Thirty-four minutes after the traffic stop, a phlebotomist drew
Lane’s blood at the hospital. A forensic scientist for the Texas Department of
Public Safety Crime Lab analyzed Lane’s blood sample and determined that it
had an alcohol concentration of .15 grams per 100 milliliters of blood.
At the trial, Officer Branum, the phlebotomist, and the forensic scientist
testified for the State, and the State introduced into evidence the videotape from
Officer Branum’s patrol car and the blood test results. During the punishment
stage of the trial, the State called Texas Department of Public Safety Trooper
Shane Neal, who testified about Lane’s previous arrest for DWI twenty-five days
prior to his arrest for the instant offense. Lane testified on his own behalf.
III. STANDARD OF REVIEW
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict 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, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
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This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Isassi, 330 S.W.3d at 638. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine 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). We
must presume that the factfinder resolved any conflicting inferences in favor of
the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Isassi, 330 S.W.3d at 638.
IV. SUFFICIENCY OF THE EVIDENCE
Lane argues in one point that insufficient evidence exists to prove that he
was intoxicated. Specifically, he argues that the State did not present expert
testimony of retrograde extrapolation regarding the results of his blood-alcohol
test and that no other evidence logically raised an inference that he was
intoxicated at the time of driving.
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The penal code defines intoxication as either “not having the normal use of
mental or physical faculties by reason of the introduction of alcohol” (the
impairment theory) or “having an alcohol concentration of 0.08 or more” (the per-
se theory). Tex. Penal Code Ann. § 49.01(2) (West 2011). The State is required
to prove only one of these definitions of intoxication. See Bagheri v. State, 119
S.W.3d 755, 762 (Tex. Crim. App. 2003). The court of criminal appeals has
explained,
BAC-test results, even absent expert retrograde extrapolation
testimony, are often highly probative to prove both per se and
impairment intoxication. However, a BAC-test result, by itself, is not
sufficient to prove intoxication at the time of driving. There must be
other evidence in the record that would support an inference that the
defendant was intoxicated at the time of driving as well as at the time
of taking the test. . . . Other evidence that would logically raise an
inference that the defendant was intoxicated at the time of driving as
well as at the time of the BAC test includes, inter alia, erratic driving,
post-driving behavior such as stumbling, swaying, slurring or
mumbling words, inability to perform field sobriety tests or follow
directions, bloodshot eyes, any admissions by the defendant
concerning what, when, and how much he had been drinking—in
short, any and all of the usual indicia of intoxication.
Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010); see Stewart v.
State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).
Here, the jury charge contained only the impairment theory of intoxication,
and the State relied on that theory at trial. Lane points to Officer Branum’s
testimony that Lane did not demonstrate any clues on the one-leg-stand test and
only a “few clues” on the walk-and-turn test, that Lane was not speeding or
weaving while driving, and that he pulled his truck over “immediately and without
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incident when the officer signaled him to pull over.” But under the applicable
standard of review, viewing all of the evidence in the light most favorable to the
verdict, a rational trier of fact could have found beyond a reasonable doubt that
Lane was intoxicated when Officer Branum stopped him. See Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638. The results of Lane’s blood-
alcohol test showed that his blood-alcohol concentration was more than twice the
legal limit thirty-four minutes after the stop. See Tex. Penal Code Ann. §
49.01(2)(B). Even without retrograde extrapolation, the results are probative and
relevant under the impairment theory of intoxication because they “‘tend to make
it more probable that [Lane] was intoxicated at the time of driving.’” Kirsch, 306
S.W.3d at 744 (quoting State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App.
2005)); Stewart, 129 S.W.3d at 96; Williams v. State, 307 S.W.3d 862, 868 (Tex.
App.—Fort Worth 2010, no pet.). Moreover, Officer Branum testified that Lane
had bloodshot, watery eyes, that an odor of alcoholic beverage was coming from
his breath, that a beer bottle cap fell from Lane’s truck when he got out, and that
he exhibited several clues of intoxication during the field sobriety tests. See
Kirsch, 306 S.W.3d at 745. Officer Branum testified that, based on his
observations of Lane, he believed that Lane had lost the normal use of his
mental and physical faculties by reason of introduction of alcohol into his system.
See Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.]
2000, pet. ref’d) (“The testimony of a police officer that an individual is intoxicated
is probative evidence of intoxication.”). According to the court of criminal
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appeals, Lane’s refusal to provide a blood sample also tends to show a
consciousness of guilt on his part. See Bartlett v. State, 270 S.W.3d 147, 153
(Tex. Crim. App. 2008) (“Evidence of the [defendant’s] refusal to submit to a
breath test . . . tends to show a consciousness of guilt on his part.”); see also
Tex. Transp. Code. Ann. § 724.061 (West 2011) (providing that refusal to give
blood specimen is admissible at trial). Viewing the evidence in the light most
favorable to the verdict, as we must, we hold that the evidence is sufficient to
support Lane’s conviction for DWI with a child passenger, and we overrule his
sole point. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d
at 638.
V. CONCLUSION
Having overruled Lane’s sole point, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 19, 2012
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