Blanchard v. State

Full title: RAYMOND BLANCHARD, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 24, 2006

No. 05-05-01194-CR (Tex. App. Aug. 24, 2006)

Opinion

No. 05-05-01194-CR

Opinion Filed August 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the County Criminal Court, Dallas County, Texas, Trial Court Cause No. MB04-27142-A. Affirmed as Modified.

Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

Raymond Blanchard waived a jury and was convicted by the court of driving while intoxicated. The court assessed punishment at thirty days' confinement and a $500 fine. Appellant raises three issues on appeal: the trial court improperly weighed the expert testimony and the evidence is legally and factually insufficient to support the conviction. By cross-point, the State argues the judgment does not reflect the trial court's oral pronouncement of a $500 fine and asks that we reform the judgment to reflect the fine orally imposed. We reform the judgment to reflect a $500 fine and, as reformed, affirm.

Background

Garland police officer Michael May saw appellant run a flashing red light and turned on his lights to initiate a traffic stop. Appellant stopped quickly in the middle of the road. Officer May approached the vehicle and told the driver to pull off the road for their safety. After they moved their cars off the road, Officer May again approached appellant's vehicle. He noticed appellant's speech was slurred; he had red, watery eyes; and his coordination was slow. Appellant denied he had been drinking. Officer May performed field sobriety tests. On the horizontal gaze nystagmus test, appellant displayed a lack of smooth pursuit in both eyes, distinct nystagmus at maximum deviation in both eyes, and nystagmus prior to the onset of 45 degrees in both eyes (six out of six clues). Officer May next asked appellant to perform the one-leg stand. On this test, appellant used his arms for support, swayed, and placed his left foot down one time. On the walk-and-turn test, appellant began walking before he was instructed to begin, used his arms for support, and made an improper turn. Officer May arrested appellant for driving while intoxicated and transported him to jail. At the jail, appellant voluntarily submitted to an intoxilyzer test. While waiting for the test to be administered (the room was in use), Officer Shaun Roden, a drug recognition expert who was called to conduct a drug influence evaluation, observed that appellant's speech was slurred and he appeared drowsy. Appellant asked to use the rest room twice while waiting and, on the second occasion, Officer Roden asked for consent to take a specimen of his urine. Appellant consented. While waiting to go into the intoxilyzer room, appellant fell asleep. Appellant's intoxilyzer test results showed a blood alcohol content of 0.00. Officer Roden conducted a 12-step evaluation to determine if appellant was under the influence of drugs. Officer Roden observed six out of six clues on the horizontal gaze nystagmus test and appellant's eyes were able to converge during the lack of convergence test. Appellant had a one-half inch sway side-to-side and rear-to-rear; he estimated the passage of 30 seconds in 32 seconds; and he had two clues on the walk-and-turn test. Appellant's pulse and temperature fell within normal ranges, but his blood pressure readings were high. Appellant's nasal and oral cavities showed no evidence of ingestion of drugs, and Officer Roden did not find any evidence of injection sites on appellant's body. During the interrogation phase of the evaluation, appellant stated he had been working long hours and was tired. He also admitted that he smoked marijuana approximately two to three hours before he was stopped and that he took one anti-depressant pill approximately twelve hours earlier. The urinalysis detected tetrahydrocannabis (THC), a metabolite of marijuana, present in appellant's urine. Based on his evaluation, Roden concluded appellant's intoxication was caused by the introduction of cannabis into appellant's body. The State charged that appellant did

then and there unlawfully operate a motor vehicle in a public place, while intoxicated, in that the defendant did not have the normal use of his mental and 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, namely: 9-CARBOXY-THC, and any other substance into defendant's body. . . .

Standards of Review

When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001). Viewing the evidence in the light most favorable to the verdict, we determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). When the evidence suggests the existence of a reasonable alternative hypothesis, as in this case, we must consider it in our factual sufficiency analysis. Richardson v. State, 973 S.W.2d 384, 387 (Tex.App.-Dallas 1998, no pet.); Harris v. State, 133 S.W.3d 760, 763-64 (Tex.App.-Texarkana 2004, pet. ref'd) (citing Richardson). However, the mere existence of an alternative reasonable hypothesis does not render the evidence factually insufficient; the standard of review remains the same. Richardson, 973 S.W.2d at 387. A verdict may be overturned only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Escamilla, 143 S.W.3d at 817. We cannot reverse the verdict if reasonable minds could differ about the conclusions to be drawn from the evidence. Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). The fact finder, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). We give due deference to the fact finder's determination of the credibility of the witnesses and the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003).

Applicable Law

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). "Intoxicated" means:

(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.

Tex. Pen. Code Ann. § 49.01(2) (Vernon 2003).

Discussion

Appellant frames his first issue as one complaining that the trial court improperly weighed the expert testimony. He appears to contend that the expert testimony was inconclusive about, and tended to negate, whether appellant was intoxicated and that the trial court erred by concluding otherwise. Appellant does not cite the record or any legal authority to support this argument and it is inadequately briefed. See Tex.R.App.P. 38.1(h). To the extent this issue actually complains about the sufficiency of the evidence, we address it under appellant's second and third issues. As a result, we overrule appellant's first issue. In his second and third issues challenging the legal and factual sufficiency of the evidence, appellant complains specifically that (1) Officer Roden's conclusions that appellant was intoxicated on a central nervous system depressant and marijuana are unsupported by the evidence, and (2) the State did not rebut the defense expert's alternative reasonable hypothesis for appellant's appearance of intoxication.

1. Legal Sufficiency

Officer May testified that appellant exhibited signs of intoxication at the scene of the traffic stop. And appellant's own expert agreed that appellant demonstrated signs of intoxication on the videotape from the roadside. When the intoxilyzer results did not confirm that appellant was intoxicated by alcohol, Officer May requested a drug recognition evaluation to determine whether appellant was intoxicated from a drug. Officer Roden testified the urinalysis showed the presence of THC, a metabolite of marijuana. And appellant admitted that he smoked marijuana approximately two to three hours before he was stopped. Based on his evaluation, Officer Roden concluded cannabis caused appellant's intoxication. We conclude this evidence is legally sufficient to sustain appellant's conviction for driving while intoxicated. We overrule appellant's second issue.

2. Factual Sufficiency

The evidence contrary to the verdict showed that appellant had worked a long and hard day and was fatigued when he was arrested for driving while intoxicated. Officer Roden did not know whether the level of THC detected in appellant's system was sufficient to cause him to lose the normal use of his mental or physical faculties. Officer May agreed that fatigue mimics signs of intoxication. Officer Roden also testified that taking one anti-depressant pill would not produce impairment. And he "would assume" that a central nervous system depressant, such as the anti-depressant appellant admitted he took, would show up in a urine test if present in appellant's body at a level sufficient to cause intoxication. The defense called its own expert witness. Gary Harold Wimbish, a toxicologist with thirty years' experience, pointed out the discrepancies in appellant's performance of the field sobriety tests on the videotapes at the roadside and at the jail. Wimbish testified that appellant demonstrated signs of intoxication on the videotape from the roadside but demonstrated no signs of intoxication on the videotape from the jail. He noted that appellant's eyes were able to converge and that appellant should not have been able to converge if he was under the influence of marijuana. And that marijuana does not cause horizontal gaze nystagmus, which appellant had, but that fatigue does. Although an anti-depressant can also cause the horizontal gaze nystagmus, the urinalysis did not detect any anti-depressant in appellant's system. The State's witnesses did not dispute any of these discrepencies and, in fact, testified similarly. Dr. Wimbish explained these discrepancies by concluding that appellant suffered from a condition known as postprandial narcolepsy. About forty-five minutes before he was stopped, appellant ate a hamburger, french fries, and drank a Coke. According to Wimbish, consuming a large meal after many hours of being awake and tired can produce drowsiness. Wimbish believed this caused appellant to perform poorly on the field sobriety tests at the roadside. However, by the time appellant reached the jail, the caffeine from the large meal woke appellant up and allowed him to respond appropriately to the field sobriety tests at the jail. Based on his evaluation of the evidence, Wimbish concluded appellant was not intoxicated. Although the test results are conflicting, appellant admitted he recently smoked marijuana, the urinalysis detected a metabolite of marijuana in appellant's system, and appellant exhibited signs of intoxication. After objectively reviewing all the evidence presented in this case, and applying the appropriate standard, we conclude the evidence is factually sufficient to support the verdict of guilt. We overrule appellant's third issue.

Imposition of Fine

The State raises by cross-point that the trial court imposed a fine of $500 and asks us to reform the judgment to reflect the imposition of the fine. A reviewing court has the power to reform a judgment when it has the necessary information to do so. See Tex.R.App.P. 43.2(b); see also Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd), modified on other grounds, Lockett v. State, 874 S.W.2d 810, 818 (Tex.App.-Dallas 1994, pet. ref'd). The record reflects the trial court orally imposed a $500 fine. Because we have the necessary information to do so, we reform the judgment to reflect a $500 fine.

Conclusion

We reform the judgment to reflect a $500 fine. As reformed, we affirm the trial court's judgment.