Opinion
No. 04-01-00618-CR
Delivered and Filed: February 26, 2003 DO NOT PUBLISH.
Appeal From the County Court at Law No. 2, Bexar County, Texas, Trial Court No. 695211, Honorable Fred Moore, Judge Presiding. AFFIRMED
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
A jury found Ronald Curtis guilty of driving while intoxicated. He was sentenced to ninety days in jail, probated for two years, and fined $750.00. Curtis appeals, raising three points of error: (1) the evidence is factually insufficient; (2) the trial court erred in overruling his objection to the prosecutor's jury argument commenting on Curtis's failure to testify; and (3) the trial court erred in overruling his objection to the prosecutor's comment on Curtis's failure to produce evidence and witnesses. We affirm.
Factual and Procedural Background
At 2:00 a.m. on May 22, 1998, Officers Ling and Castillo, in separate marked patrol cars, were working traffic patrol at the 8100 block of Blanco. Ling saw a white pickup traveling at a high rate of speed and followed the truck northbound on Blanco. Ling testified that the driver, later identified as Ronald Curtis, drove aggressively and changed lanes through traffic. As Ling approached the intersection of Blanco and West Avenue, he turned on his overhead lights. Curtis seemed unaware of Ling's presence and did not stop. Curtis attempted to turn onto West Avenue but locked up his brakes in the process. Ling testified Curtis seemed unable to control the speed of the vehicle, could not judge the intersection, and came within a few inches of striking a crosswalk pole. Curtis continued down West Avenue at a controlled rate of speed and then pulled into an apartment complex and keyed in the gate code. Ling left his vehicle and approached Curtis, asking him to step from the car. Curtis was surprised by Ling's presence. Officer Castillo arrived after Ling initiated the traffic stop. Ling testified Curtis appeared calm and complied with his requests. However, Curtis seemed to brace himself against the car door and use it to push himself up out of the car. Curtis provided his driver's license and was questioned about how much he had to drink that evening. Curtis replied, "too much." Ling smelled alcohol on Curtis and asked to conduct the field sobriety tests. Curtis agreed; and Ling asked him to perform three tests: the Romberg balance test, the one-leg stand, and the walk-and-turn test. Ling testified Curtis failed all three tests. On the Romberg balance test, Curtis exhibited a three-inch side to side sway, a three-inch circular sway, and incorrectly estimated time. He was unable to complete the one-leg stand and was unable to follow instructions correctly during the walk-and-turn test. Curtis refused to take the Horizontal Gaze Nystagmus (HGN) test. Officer Ling testified that, before he administered the field sobriety tests, he did not have probable cause to believe Curtis was impaired. However, after observing Curtis' performance on the tests, Ling concluded Curtis was intoxicated and placed him under arrest for DWI and transported him to the magistrate's office. Upon arrival, Curtis was placed in a room with a video camera, read his rights, and asked to perform both a breathalyzer and the field sobriety tests on camera. Curtis refused.Factual Sufficiency of the Evidence
In his first point of error, Curtis complains the evidence is factually insufficient to support the jury's finding that Curtis was driving while intoxicated. We disagree.Scope and Standard of Review
In reviewing a factual sufficiency challenge, we neutrally evaluate all the evidence, both for and against the finding of guilt, and reverse only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We must maintain appropriate deference to the jury's verdict by not substituting our own judgment for that of the fact finder. Our "evaluation should not intrude substantially upon the jury's role as the sole judge of the weight and credibility of witness testimony." Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001) (quoting Jones v. State, 944 S.W.2d 642 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832 (1997)).Discussion
Curtis bases his factual insufficiency challenge on the following facts: Ling testified he did not have probable cause to believe Curtis was intoxicated before he administered the field sobriety tests; no other witness corroborated Ling's testimony regarding Curtis' poor performance on the field sobriety tests; Ling was biased; other factors may affect performance on field sobriety tests; and, in the videotape made at the station following Curtis's arrest, he demonstrated sobriety. However, taken as a whole, the evidence shows Curtis's abilities were impaired. Ling initiated the traffic stop based on Curtis's reckless driving. Ling testified Curtis's eyes were bloodshot; and he smelled of alcohol. During the traffic stop, Curtis commented both on his consumption of "too much" alcohol and his inability to complete the one leg-stand ("I can't do this"). Based on experience and training, Ling believed Curtis was intoxicated after he failed the field sobriety tests. Contrary to Curtis's argument these essential portions of Ling's testimony are not contradicted by indisputable visual evidence on the videotape; nor do we find any evidence that Ling was biased in performing his duties. See Carmouche v. State, 10 S.W.3d 323, 332 (Tex.Crim.App. 2000). After examining all the evidence in a neutral light favoring neither side, we hold the jury's finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.Jury Argument
Curtis next contends the trial court erred in overruling his objections to the prosecutor's arguments at the guilt/innocence phase of trial. Curtis complains of the following closing argument:Prosecutor: Let me make this clear that there was no evidence in this case at all, none at all, of there being any food, being any cell phone. And there's no evidence of any physical defects. He said- in opening statements defense attorney said that the defendant was with some friends. Where are these friends? Where are these friends coming in and saying, "I was with him" —
Defense counsel: Objection, Your Honor. He's commenting on the defendant's failure to testify and bringing witnesses on his own behalf. We're going to ask for a mistrial.
Court: Denied. Overruled.
Prosecution: . . . Where are these doctors? Where are these medical records? There's nothing. There's no evidence of any physical defects. And the defendant never said anything. If you were asked to perform something when someone thought you were intoxicated would you not tell them that you had a hurt leg? Sinus medication, again, there's no evidence. . . .