COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-261-CR
MICHAEL HECTOR DIAZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In a single point, Appellant Michael Hector Diaz challenges the legal
sufficiency of the evidence to support his conviction for driving while
intoxicated (“DWI”). We will affirm.
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See Tex. R. App. P. 47.4.
II. Background
Officer Penny Lopez had been a jailer with the Keller Police Department
for three years before she transferred to the patrol division in November 2005.
Around 10:45 on the night of January 11, 2006, she was patrolling with her
field training officer, Corporal Craig Berry, when she saw a white Durango pick
up truck without a front license plate swing wide onto Main Street and then
turn without signaling. In response, Officer Lopez executed a traffic stop.
As she approached the truck, the driver rolled his window down about
eight inches. He had a moderate odor of an alcoholic beverage on his breath,
his eyes were bloodshot, and his eyelids appeared heavy. There was fast food
in the seat but the driver was not eating when he was pulled over. Officer
Lopez identified the driver as Diaz and asked him if he had been drinking. He
denied that he had.
Officer Lopez walked back to the patrol car to consult with Corporal
Berry, who as the department’s DWI enforcement officer, had considerable
experience. He suggested that she administer field sobriety tests to determine
whether Diaz was intoxicated. Officer Lopez had Diaz exit the pickup truck
and, under Corporal Berry’s supervision, she performed the horizontal gaze
nystagmus test (“HGN”) on Diaz. The HGN yielded all six clues of intoxication.
Officer Lopez then asked Diaz to perform a one-leg-stand test, but after failing
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to keep his leg up, he quit and refused to attempt any further tests. Corporal
Berry confronted Diaz about his denying having consumed any alcohol that
night, whereupon Diaz became argumentative.
The officers placed Diaz under arrest and took him to the jail, where he
refused to provide a sample of his breath or blood for testing or to perform any
more tests. Officer Lopez then procured a search warrant for a blood sample
and transported Diaz to North Hills Hospital.
Approximately three hours after the traffic stop, Diane Kirk, a certified
phlebotomist who had performed thousands of blood draws, took a sample of
Diaz’s blood. Following established procedures, she drew the sample into a
standard blood-kit vial that contained preservative and anticoagulant. The vial
was then sealed and transported to the Keller Police Department, where it was
placed in the evidence refrigerator until it could be delivered to the Texas
Department of Public Safety Crime Laboratory (“DPS Lab”) in Garland for
testing.
On February 27 and 28, 2006, Kenneth Evans, drug section supervisor
at the DPS Lab, analyzed the sample drawn from Diaz. Using methods
practiced over his twenty-five years as a forensic analyst, he determined that
the blood alcohol concentration of the sample was 0.09 grams of alcohol per
100 milliliters of blood.
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The State charged Diaz with DWI, alleging, among other things, that Diaz
had been “intoxicated by not having the normal use of his mental and physical
faculties by reason of the introduction of alcohol into his body or by having an
alcohol concentration of at least 0.08.” 2 The case was tried to a jury, which
returned a verdict of guilty. The trial court sentenced Diaz to one year’s
confinement probated for two years and imposed a fine of $850.
III. Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
order 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); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
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; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See Tex. Code Crim.
2
See Tex. Penal Code Ann. § 49.01(2)(A) & (B) (Vernon 2003).
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Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568
(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (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). We must presume
that the factfinder resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
IV. Sufficient Evidence to Prove Intoxication
Diaz contends that the evidence is legally insufficient to prove that he
was intoxicated. Under the penal code, “intoxicated” means not having the
normal use of one’s mental or physical faculties by reason of the introduction
of alcohol into the body or having a blood alcohol concentration equal to or
greater than 0.08 grams of alcohol per 100 milliliters of blood. Tex. Penal Code
Ann. § 49.01.
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Diaz contends that the evidence is insufficient to show he was
intoxicated because his cross examination of the State’s witnesses undermined
the State’s case. In support of this claim, he points to testimony that it was
the arresting officer’s first arrest for DWI, that there was no alcohol found
inside the truck, that there was fast food in it, that the proper HGN testing
protocol was not followed, that Officer Lopez relied on Corporal Berry’s decision
to arrest Diaz, and that the DPS chemist who tested his blood sample testified
only that the blood alcohol concentration was over the legal limit on the day of
testing.
All of these contentions, however, urge that we re-evaluate the weight
and credibility of the evidence. Therefore, none are germane to a legal
sufficiency analysis. See Brown, 270 S.W.3d at 568; Dewberry, 4 S.W.3d at
740.
Moreover, viewing the evidence in the light most favorable to the verdict,
the evidence is legally sufficient. The arresting officer testified that her
observations of and interactions with Diaz on the night of his arrest led her to
believe that he had lost the normal use of his physical and mental faculties by
drinking alcohol, and therefore, had been intoxicated. She arrived at this
conclusion after observing him commit two traffic violations, smelling a
moderate odor of an alcoholic beverage on his breath, performing HGN testing
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that yielded six out of six possible clues indicating intoxication, witnessing him
argue with Corporal Berry and, after attempting and failing to perform a field
sobriety test, refusing to attempt any others. Officer Lopez then obtained a
warrant for a blood sample and transported Diaz to North Hills Hospital where
a licensed phlebotomist drew a sample of his blood which was sealed and later
tested at the DPS Lab in Garland. Evans, the chemist who analyzed the
sample, testified that the it yielded a blood alcohol concentration of 0.09 grams
per 100 milliliters, which Evans testified is above the legal limit of 0.08. Evans
further testified that assuming that blood sample had been drawn three hours
after Diaz had consumed his last alcoholic beverage, the 0.09 result was likely
lower than what it would have been had it been drawn at the time Diaz was
driving. After hearing this and other evidence, the jury found appellant guilty.
Viewed in the light most favorable to the verdict, we hold that the evidence is
legally sufficient to show that Diaz was intoxicated, and we overrule his sole
point. See Maxwell v. State, 253 S.W.3d 309, 316–17 (Tex. App.—Fort
Worth 2008, pet. ref’d).
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V. Conclusion
Having overruled Diaz’s sole point, we affirm the trial court’s judgment.
PER CURIAM
PANEL: WALKER, LIVINGSTON, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 4, 2010
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