No. 12-05-00351-CR
Opinion delivered July 31, 2006. DO NOT PUBLISH.
Appeal from the 114th Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J. and GRIFFITH, J.
SAM GRIFFITH, Justice.
Appellant Robert D. Courson appeals his conviction for felony driving while intoxicated. In two issues, Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. We affirm.
Background
Appellant was charged by indictment for the third degree felony offense of driving while intoxicated. The charge was enhanced to a felony because Appellant had two prior convictions for driving while intoxicated. See TEX. PEN. CODE ANN. § 49.09(b) (Vernon Supp. 2005). He pleaded "not guilty" and elected to have a jury decide his guilt or innocence. Appellant stipulated to both of his prior convictions. At trial, the State called Donald Rutledge, a City of Tyler police officer. On April 13, 2004, a concerned citizen called the Tyler Police Department to report a possible DWI. Based on that call, Officer Rutlege received a dispatch around 2:00 that afternoon to look for a man in a plaid shirt in close proximity to a Suburban in the 400 block of Vine Street. He found the Suburban parked in the street and Appellant lying on the sidewalk, either unconscious or asleep. Lying close to Appellant was a bottle of Glenlivet Scotch. Officer Rutledge awoke Appellant. He noticed a strong odor of alcohol emanating from Appellant and that Appellant's eyes were bloodshot, his speech was slurred, and he had difficulty standing. Appellant told Officer Rutledge that he had been to "Fat Dog's" on Lake Palestine to buy alcohol and had consumed a "couple of shots of whiskey." The officer performed three field sobriety tests on Appellant, and he failed all three. Officer Rutledge placed Appellant under arrest based on the reported phone call from the citizen, his observations at the scene, and Appellant's response to the field sobriety tests. Officer Rutledge testified that in addition to the bottle of scotch on the sidewalk, he saw a twelve pack of beer in the Suburban. He did not feel the hood of the vehicle, but noticed that the front right wheel had some concrete marks on it. The officer conceded that he never saw Appellant driving the vehicle. When he first approached Appellant, the engine of the vehicle was not running. The officer said that he found the keys on the rear bumper of the Suburban. Although he was not sure, Officer Rutledge believed that Appellant had placed them there after Appellant got up from the sidewalk. After transporting Appellant to the Smith County jail, the officer administered two breathalyzer tests. Appellant's results from the tests were .126 and .134. The State next called LeeAnne Praytor to testify. On April 13, Praytor was driving westbound on Houston Street when she saw a maroon Suburban swerving in front of her. It rubbed the curb and crossed over into the oncoming traffic lane. She followed it as it turned "wide" onto Vine Street, leaving the proper lane of travel and going into the opposite lane. She saw the Suburban stop and park in the street on Vine. Praytor had to stop her vehicle because Appellant parked the Suburban in the lane of traffic in front of her. As she drove her vehicle around the Suburban, she saw Appellant in the driver's seat. She continued driving to the corner parking lot where she turned her vehicle around to continue watching Appellant. Praytor watched as Appellant exited from the driver's seat of the vehicle, staggered to the front of it, and fell onto the sidewalk. Praytor called the police on her cell phone and reported the incident. She then drove back to the scene and gave the Suburban's license plate number to the police dispatcher. She remained at the scene for another thirty minutes as police questioned her. After the State rested, Appellant made a motion for an instructed verdict, which was denied. Appellant then called Tanya Branam to testify. Branam is a cashier at Fat Dog Beverages in Coffee City, Texas. She testified that it is a thirty minute drive from the store to Tyler. Branam said that on the afternoon of April 13, Appellant came into the store between 12:15 and 12:20. He bought his "usual" — a half case of Coors Light and a pint of Glenlivet scotch. Branam had known Appellant for many years and knew that he was a regular customer at the store. She testified that on the day in question, he was sober when he came into the store and that he was not drinking while he was there. Branam said that they talked for five to ten minutes before he left the store. She did not see him driving that day nor could she say whether anyone had driven him to the store. Matthew Gray testified that on April 13, he went to take his fiancé, Maxine Tant, to lunch. Tant worked for Appellant at his bail bond business. Gray stated that Appellant arrived at the office between 12:45 and 12:50 that afternoon, slammed his keys on the desk, opened the bottle of liquor, and began drinking. He seemed upset that Gray was there because he and Gray did not like each other. Gray did not smell alcohol on Appellant nor did he seem to be intoxicated. After smoking a cigarette and talking to Tant for a little longer, Gray left around 1:30 to walk to a convenience store. When he returned to Appellant's business between 1:50 and 1:55, he saw the police had arrived. On cross examination, Gray testified that he was also acquainted with Appellant because Appellant had provided bond for his 2005 arrest for possession of a controlled substance. Conceding that Tant lives with him and helps pay the bills, he said that Appellant still employs Tant and that he pays her paycheck. Gray admitted that if Appellant lost his business, Tant would no longer be employed and that would mean money out of his household budget. However, Gray reiterated his intense dislike for Appellant and stated he would not lie for him. He claimed to have known Appellant for over a year. In that time, Gray said that he has seen Appellant drunk many times and knew that he was an alcoholic. But he maintained that Appellant was not drunk when he arrived at the office on April 13. Maxine Tant then testified that she had worked for Appellant between three and four years. Tant said that on April 13, Appellant was having a bad day, went to run some errands around 10:45 that morning, returned "sober" around 12:45 in the afternoon, and began drinking scotch. Tant said that Appellant played games on his computer for two hours while he continued to drink. She said that Appellant had almost finished the bottle of scotch when he walked outside around 1:50 to retrieve the beer. She saw him talking to his friend, Kay Lievens, who had driven by and stopped in front of the office. Tant said that she was watching out for him because he was drunk and she did not want him to hurt himself on the broken curbs and sidewalks in front of the office. Although she was filing and answering the phone, she kept looking outside every fifteen to twenty seconds, checking on him. After Lievens drove away, Tant saw that Appellant was sitting down on the curb. The next time she looked up, she saw the flashing lights of the police car. Tant claimed that she did not see Appellant operate his vehicle in any way after he arrived back at the office around 12:45 that afternoon. Tant said that after Appellant had been arrested, she moved his vehicle closer to the curb at the police officer's request. Tant conceded that she had been convicted for possession of marijuana and theft in the previous five years, but said she would not lie for Appellant. On cross examination, Tant maintained that she looked at the clock when Appellant arrived and when he walked outside. She admitted that she might have been confused about the time that Appellant spent playing computer games, but estimated that the police arrived around 2:00. She also conceded that when Appellant returned from his errands at 12:45, he parked his vehicle approximately three feet from the curb although there was plenty of room to parallel park in front of the office. Kay Lievens testified that she has a bail bond business and has known Appellant for over a year. She considers her relationship with Appellant to be "friendly competitors." On April 13, Lievens drove to Appellant's office at approximately 1:52 to see why Appellant had failed to show up for their lunch appointment. When she arrived, she saw that Appellant's vehicle was parked too far from the curb and saw Appellant wandering around outside, drunk. Concerned that he might be thinking about driving, she asked him where his keys were, but he did not know. Lievens never saw Appellant in his vehicle, but he was carrying a green bottle of liquor in his hand. On cross examination, Lievens conceded that she did not know how long Appellant had been outside, if he had just driven to the office, or how long his vehicle had been parked there. She said that Appellant has much more experience in the bail bond business than she and that he has been a source of information for her. At the conclusion of the guilt/innocence phase, the jury found Appellant guilty. After hearing evidence and argument from the parties, the jury sentenced Appellant to six years of imprisonment and assessed a $10,000.00 fine. This appeal followed. Sufficiency of the Evidence
In his two issues, Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. He does not deny that he was shown to be intoxicated, nor does he challenge the proof of his previous convictions. He contends, however, that the evidence is legally and factually insufficient to sustain a conviction for driving while intoxicated because the State failed to establish that he was actually driving while intoxicated. Legal Sufficiency Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Escobedo v. State , 6 S.W.3d 1, 6 (Tex.App.-San Antonio 1999, pet. ref'd) (citing Jackson v. Virginia , 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979)). In reviewing a legal sufficiency challenge, the appellate court examines the evidence in the light most favorable to the judgment to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State , 871 S.W.2d 183, 186 (Tex.Crim.App. 1993) (citing Jackson , 443 U.S. at 319, 99 S. Ct. at 2789). The conviction will be sustained "unless it is found to be irrational or unsupported by more than a `mere modicum' of the evidence." Moreno v. State , 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). The jury is the exclusive judge of (1) the facts, (2) the credibility of the witnesses, and (3) the weight to be given to the testimony of each witness. Barnes v. State , 876 S.W.2d 316, 321 (Tex.Crim.App. 1994); Penagraph v. State , 623 S.W.2d 341, 343 (Tex.Crim.App. 1981). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury's domain. Losada v. State , 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State , 763 S.W.2d 587, 588-89 (Tex.App.-Corpus Christi 1988, pet. ref'd). A successful legal sufficiency challenge results in the rendition of an acquittal by the reviewing court. See Tibbs v. Florida , 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982). Discussion A person commits felony driving while intoxicated if he operates a motor vehicle in a public place while intoxicated and has been previously convicted at least twice for driving while intoxicated. See TEX. PEN. CODE ANN. 49.04, 49.09(b)(2) (Vernon Supp. 2005). In support of his legal sufficiency argument, Appellant cites two cases: Reddie v. State , 736 S.W.2d 923 (Tex.App.-San Antonio 1987, pet. ref'd) and Ballard v. State , 757 S.W.2d 389 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd). In Reddie , the appellant was found slumped over the driver's wheel with the motor idling. Reddie , 736 S.W.2d at 924-25. The car was stopped in the middle of the road in "park." Id. One witness testified that the car had not been at that location two and a half hours earlier, but there was no other evidence as to how long the car had been parked on the road. Id. The court of appeals acknowledged that the evidence showing that the motor was running and that the gear was in the park position supported an obvious inference that the person found intoxicated and sleeping behind the wheel was the person who had been driving it. Id. at 926. But the court found the evidence insufficient because other reasonable hypotheses existed. In the absence of evidence showing how long the car had been at that location, when the appellant became intoxicated, or whether the appellant was the one who drove the car and parked it there, the court refused to infer that he drove the car while intoxicated. Id. at 926-27. In Ballard , the appellant was found unconscious and slumped over the driver's wheel in a vehicle with the engine still running, parked on the shoulder of the highway. Ballard , 757 S.W.2d at 390. No evidence was presented showing whether the appellant was intoxicated before the time the car was parked, how long appellant had been intoxicated or in the car, or who had parked the car. Id. at 391. Following the reasoning in Reddie , the court concluded that the evidence was not legally sufficient to prove that the defendant operated the car while intoxicated although there was ample evidence of intoxication. Id. at 391-92. In 1991, the court of criminal appeals abandoned the alternative reasonable hypothesis analysis applied in Reddie and Ballard. See Geesa v. State , 820 S.W.2d 154 (Tex.Crim.App. 1991), overruled in part on other grounds, Paulson v. State , 28 S.W.3d 570, 571-72 (Tex.Crim.App. 2000). Under that analysis, the reviewing court accepted the inculpatory circumstances and then considered whether a reasonable hypothesis other than guilt would also account for such circumstances. See Barton v. State , 882 S.W.2d 456, 458 (Tex.App.-Dallas 1994, no pet.). If the evidence did not exclude all reasonable hypotheses raised by the evidence except the defendant's guilt, the evidence was legally insufficient. Id. Now, reviewing courts do not consider whether the evidence eliminates all reasonable hypotheses other than guilt nor do they disregard reasonable inferences. Id. at 459. Instead, appellate courts examine both direct and circumstantial evidence in the same manner, considering the totality of the circumstances. Id. As outlined above, when considering legal sufficiency, we examine the evidence in the light most favorable to the judgment to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State , 871 S.W.2d at 186. This standard supports the trial court's responsibility, as 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. Praytor testified that she was driving behind Appellant's suburban and watched as he swerved across the road into the oncoming lane of traffic. She followed him until he parked his vehicle in front of his office. Praytor identified Appellant as the person she saw exiting the vehicle from the driver's seat, then walking to the sidewalk and falling down. Praytor never lost sight of Appellant until after a police officer was on the scene with Appellant. Viewing all of the evidence in the light most favorable to the jury's verdict, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant was driving the motor vehicle while intoxicated in a public place. Therefore, we hold that the evidence was legally sufficient to support the jury's verdict. We overrule Appellant's first issue. Factual Sufficiency Turning to Appellant's contention that the evidence is not factually sufficient to support the jury's verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State , 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State , 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). Although we are authorized to disagree with the jury's determination, even if probative evidence exists that supports the verdict, see Clewis , 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Santellan , 939 S.W.2d at 164. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See Van Zandt v. State , 932 S.W.2d 88, 96 (Tex.App.-El Paso 1996, pet. ref'd). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State , 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). A verdict will be set aside "only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." Ortiz v. State , 93 S.W.3d 79, 87 (Tex.Crim.App. 2002); see Sims v. State , 99 S.W.3d 600, 601 (Tex.Crim.App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury's finding "shocks the conscience" or "clearly demonstrates bias." Zuniga , 144 S.W.3d at 481. As the court of criminal appeals explained in Zuniga , "There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt?" See id. at 484. Discussion In addition to the evidence already discussed, the record contains some evidence in Appellant's favor. The record shows that Appellant was not intoxicated when he arrived at the liquor store. Appellant's employee and her boyfriend both testified that he arrived at the office around 12:45 p.m. and did not become intoxicated until an hour later. Neither saw Appellant operate his vehicle in any way after that time. Officer Rutledge and Lievens also testified that they did not see Appellant operating a vehicle. We have reviewed the record in its entirety. The jury accepted the State's version of the facts and found against Appellant. In our evaluation, we should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See Santellan , 939 S.W.2d at 164. Further, where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See Van Zandt , 932 S.W.2d at 96. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury's finding, has not revealed to us any evidence causing us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant's conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury's verdict. We overrule Appellant's second issue. Disposition
Having overruled both Appellant's issues, we affirm the judgment of the trial court.