Opinion
No. 14-04-00729-CR
Memorandum Opinion filed March 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Criminal Court at Law No. 2, Harris County, Texas, Trial Court Cause No. 1,211,100. Affirmed.
Panel consists of Justice FOWLER, EDELMAN, and GUZMAN.
MEMORANDUM OPINION
A trial court convicted appellant Lee West Adams of driving while intoxicated ("DWI"), sentenced her to 180 days in jail, and fined her $300.00. The trial court suspended the sentence and placed appellant on community supervision for nine months. In her sole issue on appeal, she contends the evidence is factually insufficient to support her conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 25, 2003 at approximately 11:45 p.m., appellant was stopped by Officer C.D. Allen of the Houston Police Department's DWI task force while driving her vehicle on Westheimer Road in Houston's Galleria neighborhood. After a brief conversation with appellant, Allen asked her to submit to the horizontal gaze nystagmus test, and she agreed to do so. He also administered a "modified A-B-C's" test. Following the tests, Allen asked appellant about her alcohol consumption that evening. Appellant was subsequently taken into custody and transported to Houston's central intoxication facility, where she refused to provide a breath sample and also refused to undergo additional videotaped sobriety tests. After a bench trial, appellant was found guilty of driving while intoxicated.II. ISSUE PRESENTED
In a single issue, appellant argues the evidence presented to the trial court is factually insufficient because the overwhelming weight of the evidence established that appellant had not lost the normal use of her mental or physical faculties. Specifically, appellant argues that "other witnesses who had been with appellant for a much longer period of time that evening established she was not intoxicated." Appellant points out that these witnesses included "well-known, reputable, and credible attorneys," and a medical doctor and asserts that their combined testimony greatly outweighed that of Officer Allen.III. DISCUSSION
A. Standard of Review In reviewing the evidence for factual sufficiency, we ask only one question: Considering all the evidence in a neutral light, was the fact finder rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways the evidence may be factually insufficient: (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Id. at 484-85. In our evaluation of the evidence, we must be deferential to the findings of the fact-finder and resist intruding on its role as the sole judge of the witnesses' credibility and of the weight to be given to the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (en banc). In a bench trial, the court acts as the fact-finder. Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App. 1995) (en banc). Our standard of review remains the same whether the evidence we consider is direct or circumstantial. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986) (en banc).B. Analysis
To sustain a conviction for driving while intoxicated, the State must offer evidence to prove beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place. TEX. PEN. CODE § 49.04(a) (West 2005). "Intoxicated" is defined as:(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.§ 49.01(2). Appellant does not dispute that she was operating a motor vehicle in a public place at the time she was detained. Moreover, appellant did not agree to any scientific means of determining her level of intoxication. Accordingly, our inquiry focuses solely on the evidence addressing appellant's consumption of alcohol to the extent that she lost the normal use of her mental or physical faculties.
1. State's Evidence of Intoxication
The State's evidence of appellant's intoxication came from the testimony of Officer Allen and also from the videotape of appellant's detention and arrest. Allen testified he became suspicious of appellant when he observed her vehicle swerving in and out of the lane in which it was traveling. He stated he decided to signal that she pull over her vehicle when she stopped her vehicle in the middle of a crosswalk. Both Allen's testimony and the videotape demonstrate that appellant continued to proceed for several blocks after Allen turned on his vehicle's emergency lights, and that appellant did not stop until Allen activated his siren. Allen testified he detected a "strong odor of an alcoholic beverage" after his initial conversation with appellant. He also observed she had red, bloodshot eyes, and noticed she was speaking in a slow and slurred manner. Allen testified appellant's performance on the horizontal gaze nystagmus ("HGN") test provided him with six clues that she was intoxicated. He also testified that she swayed in a front-to-back motion while performing the HGN test. When Allen asked appellant to recite the alphabet from "G" to "X," appellant began at "G" but failed to stop at the letter "X" as she was instructed. The videotape corroborates Allen's testimony that appellant gave widely inconsistent statements of what she had been drinking and the times at which she consumed the beverages. Additionally, the video evidences the following dialogue immediately prior to appellant's arrest:APPELLANT: I'm not going to tell you that I'm absolutely 100 percent okay.
ALLEN: Why wouldn't you be 100 percent okay?
APPELLANT: Because I'm not.
ALLEN: How come you're not?
APPELLANT: Because I've had a few drinks.
ALLEN: Do you think you're intoxicated right now?
APPELLANT: A little bit.
ALLEN: Well, how much is a little bit?
APPELLANT: A little bit.
ALLEN: Well, I mean, at what — what do you consider to be intoxicated?
APPELLANT: What do you consider to be intoxicated?
ALLEN: Loss of the normal use of your mental or physical faculties. Or, to have a blood-alcohol concentration of .08 or greater.
APPELLANT: It would probably be greater.
ALLEN: You think your blood-alcohol would be greater?
APPELLANT: I would assume so considering I probably have a small frame —
ALLEN: Yes.
APPELLANT: And just a little bit would probably make that greater.
ALLEN: Is it a wise decision to drive if you think you're above the legal limit?
APPELLANT: Well, I think it would probably be — not a wise decision, but I'm headed to some place and I'm going to be there for the night.
ALLEN: That's not the question I asked you. I asked you do you think it's a wise decision to even drive, whether it be one block or ten blocks. If you think — if you already think you're above the legal limit, do you think it's a wise decision to get out here and drive?
APPELLANT: Probably not.Following this conversation, appellant refused to undergo additional field sobriety tests, and was then placed under arrest.
2. Appellant's Contrary Evidence
At trial, appellant took the stand in her own defense. She testified she had been very sick with a cold on the day of her arrest, and, despite having stayed up late on the previous evening wrapping gifts, she was up early the next morning to celebrate Christmas with her family. She went on to say she spent the evening visiting her father and stepmother from about 5:00 p.m. to 8:00 p.m., and then attended a friend's party from approximately 8:30 p.m. to 11:30 p.m. Appellant claimed the only alcoholic beverages she consumed that day were part of one glass of wine at her parents' home, and a glass of wine and a small glass of vodka at the party. Appellant also testified about the circumstances surrounding her arrest. She stated her car's swerving motions were caused by her effort to make calls on her cell phone while also attempting to untangle the cords to her phone charger and headset. She justified her inconsistent statements as to what and when she was drinking by stating, "I did not stop and look at my watch every time I either got in the car or . . . took a sip of something or . . . transported myself from one place to the other." Finally, she explained she told Adams she had "a lot" to drink because she was "referring to . . . different forms [of alcohol] to drink, not as in quantity . . . because there had been different things that I had drank at different points . . . and at different places." Appellant's testimony was corroborated by five witnesses. Her stepmother, Linda West, testified appellant had only one glass of wine with dinner. West also testified that through her work, she was very familiar with Texas' definition of intoxicated, and that in West's opinion, appellant had not lost the normal use of her mental and physical faculties when she left their home. Appellant's claim that she drank only one glass of wine at the party was supported by the testimony of Charlie Davidson, an attorney; Kelly Sigler, an attorney and the co-host of the party; Kelly's husband and co-host Sam Sigler, a physician who also has a law degree; and Gregory Nassar, appellant's boyfriend. Although Davidson left the party before appellant, he stated he had "no doubt" appellant was not intoxicated. Kelly and Sam Sigler, both of whom indicated their familiarity with Texas law, testified that in their opinion, appellant was not legally intoxicated at the time she left the party. In her brief, appellant also directs us to testimony elicited on cross-examination regarding the motivation of the DWI task force officer:Q: Now, as a prosecutor, would you place more relevance in the opinion of a DWI task force officer . . . as opposed to the opinion of a friend or someone who was with the defendant at the time, at a party, as to the issue of whether or not that person had lost her normal use of her mental and physical faculties?
A: It would depend on the motivation of each of them, the friend and the cop.
Q: Okay. And if the cop's motive were to remove people who were not driving safely, to stop them and determine whether or not they were intoxicated, if there were no other motive involved, then would you rely on his opinion as to intoxication?
A: Well, I think you would also have to factor in the fact that the DWI task force guys are very gung-ho. Put that in the pot and put that motivation in there . . . we are all going to believe the cops first and best and most, but we are talking about DWI task force gung-ho cops.In a factual sufficiency review, we are required to consider the most important evidence the appellant claims undermines the fact-finder's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The testimony at issue, however, is unrelated to the State's evidence on the issue of intoxication; its only value is to place Allen's credibility at issue. As stated above, we do not re-assess the weight given to the credibility of the evidence by the fact-finder in a factual sufficiency review. Johnson v. State, 23 S.W.3d at 7. After viewing all of the evidence in a neutral light, we conclude the trial court was rationally justified in finding guilt beyond a reasonable doubt. Allen's testimony and appellant's own statements on the videotape are not so contrary to the overwhelming weight of the evidence to require a reversal. See Lorenz v. State, 176 S.W.3d 492, 495-96 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (holding evidence of bloodshot eyes, slurred speech, a strong odor of an alcoholic beverage, six clues on the horizontal gaze nystagmus test, and appellant's own admission of some alcohol consumption factually sufficient to support DWI conviction). Accordingly, we affirm the judgment of the trial court.