No. 01-05-00542-CR
Opinion Issued June 15, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 1005790.
Panel consists of Justices KEYES, ALCALA, and BLAND.
JANE BLAND, Justice.
Appellant Rocky Lee Riddle pleaded not guilty to the felony offense of driving while intoxicated ("DWI"). After a bench trial, the court found Riddle guilty and assessed punishment at seven years' imprisonment. In Riddle's sole issue on appeal, he contends that the evidence is factually insufficient to sustain his conviction. We affirm.
Facts
In October 2004, Riddle and his fiancée drove home from his parents' home. While entering an intersection, a car running a red light struck their vehicle. The force of the impact, which occurred on the driver's side of the vehicle, caused the vehicle, a Suburban, to spin around twice, and ripped all four tires from the wheels. The accident totaled both vehicles. Riddle bumped his head and shoulder on the driver's window and lost his eyeglasses. Police ticketed the other driver for running a red light. The responding officer, who arrived about an hour after the accident, suspected Riddle of being intoxicated, so he called Officer D. Meredith to perform a DWI investigation. Officer Meredith, who needed seven more DWI arrests to become certified in administering field sobriety tests, testified that he rushed to administer the field sobriety tests because his shift was almost over. Meredith testified that Riddle's breath smelled of alcohol, his speech was pretty slurred, and his eyes were bloodshot. Riddle told Meredith he had consumed two or three beers earlier in the day. Meredith administered the horizontal gaze nystagmus ("HGN") test, in which Riddle exhibited six of six possible clues indicating loss of normal use of his mental or physical faculties. Next, Meredith asked Riddle to perform the walk-and-turn test. Riddle failed this test by exhibiting four of the eight possible clues. During the one-leg-stand test, Riddle dropped his foot more than three times, so Meredith terminated the exam as failed. The final field sobriety test was the Rhomberg test, in which Riddle's estimation of thirty seconds was within the acceptable range, but he swayed side to side "pretty abnormal[ly]." Officer Meredith determined Riddle had lost the normal use of his mental and physical faculties based on the results of the field sobriety tests, Riddle's slurred speech, and bloodshot eyes. He arrested Riddle for DWI. While Meredith was conducting the sobriety tests, he saw Riddle's father lean against his patrol car. Meredith and Riddle's father argued about the issue, and Meredith admitted that he was loud and lost his temper. Riddle testified that following the encounter, Meredith repeatedly shined a flashlight in Riddle's eyes while he attempted to complete the field sobriety tests. Riddle also testified that the responding officer told Meredith that Riddle had a criminal history. Though Meredith did not remember Riddle reporting a head injury, he testified that he would have included it in his report if such an injury was reported. Meredith testified that nothing indicated a head injury, and he attributed Riddle's loss of normal use of his mental or physical faculties to alcohol. He also testified that he did not know whether an accident and head trauma would affect performance during an HGN test. Riddle testified that he asked the Emergency Medical Technician at the scene to examine him and test his blood, but that Meredith refused to allow it. Meredith testified that, to his knowledge, Riddle did not request a blood test. Officer Sander investigated Riddle's intoxication at the police station. Sander performed a station video on Riddle. Riddle testified that he refused a Breathalyzer test at the station because, while he waited to be tested, he heard an officer say, "I want this one." Nearly two hours after the accident, Riddle again performed the Rhomberg, one-leg stand, and walk-and-turn tests. He scored within the normal range on the Rhomberg test, and exhibited no clues during the one-leg-stand test. Riddle exhibited three to four clues during the walk-and-turn test. Sander testified that he believed Riddle had lost the normal use of his mental and physical faculties based on the fact that Riddle admitted to drinking earlier in the day, was involved in an accident, and failed the walk-and-turn test, which Sander testified is 83% accurate. Sander has testified in court hundreds of times, but he has never testified that either he or any other officer has made a mistake. Riddle testified that he had two or three non-alcoholic beers at his fiancée's parents' house in the morning, before going to his parents' house that afternoon. Riddle and his father both testified that Riddle's parents do not keep alcohol in their house because they do not want to tempt Riddle, and that Riddle did not have any alcohol during the five hours he was there. Factual Sufficiency
In his sole issue, Riddle contends the evidence is factually insufficient to support his conviction because (1) the accident was not his fault and there was no evidence indicating how he was driving prior to the accident, (2) Meredith was motivated to arrest Riddle for DWI because he needed arrests to complete his certification, and argued with Riddle's father at the scene, (3) Meredith did not conduct the sobriety tests properly because he was in a hurry to leave work that night, (4) neither officer took into account how Riddle's head injury and trauma suffered during the accident, or lack of prescription eyeglasses, could have affected his performance on the sobriety tests, (5) Riddle was not blood tested as he requested, and (6) Riddle and his father both testified that Riddle had not had any alcohol for the five hours preceding the accident. When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence may be insufficient if, considered by itself, it is too weak to support the verdict, or if, weighing all the evidence, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence that tends to prove the existence of the elemental fact in dispute to the evidence that tends to disprove it. Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex.Crim.App. 2005). We are authorized to disagree with the fact-finder's determination even if probative evidence exists to support the verdict, but we must avoid substituting our judgment for that of the fact-finder. Id. Unless the available record clearly reveals that a different result is appropriate, an appellate court conducting a factual sufficiency review must defer to the fact-finder's determination concerning what weight to give conflicting testimony because resolution often turns on evaluation of credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). In conducting such a review, we consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). A person is guilty of felony DWI if he operates a motor vehicle in a public place while "not having normal use of mental or physical faculties by reason of the introduction of alcohol" and has previously been convicted of at least two prior DWIs. See TEX. PEN. CODE ANN. §§ 49.01(2)(A), 49.04 (Vernon 2003); id. § 49.09 (Vernon Supp. 2005). That Riddle operated a motor vehicle in a public place is uncontroverted, and Riddle stipulated to having two prior DWI convictions. We determine whether sufficient evidence supports a finding that Riddle had lost the normal use of his mental or physical faculties due to the introduction of alcohol. In Baker v. State, this court held evidence of intoxication sufficient to support a DWI conviction where the defendant smelled of alcohol, displayed six out of six clues of intoxication during the HGN test, failed the walk-and-turn test by exhibiting four out of eight clues, exhibited three out of four different clues during the one-leg-stand test, and swayed outside the normal range during the Rhomberg test. 177 S.W.3d 113, 120 (Tex.App.-Houston [1st Dist.] 2005, no pet.). Similarly, in Lorenz v. State, this court found the evidence factually sufficient to support a DWI conviction where the defendant exhibited bloodshot eyes, slurred speech, and a strong odor of an alcoholic beverage on his breath; admitted that he had consumed portions of three alcoholic beverages within an hour and fifteen minutes; had six clues on the HGN test; put his foot down three times, swayed three times, and raised his arms for balance twice during the one-leg-stand test; missed stepping heel-to-toe seven times, raised his arms for balance four times, could not keep his balance during the instructions phase and turned in the wrong direction during the walk-and-turn test; and estimated eighteen seconds for thirty seconds and exhibited a one-to-two-inch circular sway while he attempted to balance during the Rhomberg test. 176 S.W.3d 492, 495-96 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). Here, the evidence of intoxication is similar. Riddle displayed six out of six possible clues on the HGN test administered to him at the scene, and he failed the walk-and-turn test by exhibiting four out of eight clues. During the one-leg-stand test, Riddle dropped his foot more than three times, which counts as four clues, automatically terminating the exam as failed. Riddle's estimation of thirty seconds was within the acceptable range, but his sway from side to side was not normal for a Rhomberg test. Riddle had bloodshot eyes, smelled of alcohol, and had slurred speech. Riddle also told Officer Meredith at the scene that he had two or three beers earlier in the day, and later refused a Breathalyzer test. Meredith testified that he believed Riddle had lost the normal use of his mental and physical faculties. Additionally, Officer Sander testified that he too formed the opinion that Riddle had lost the normal use of his mental and physical faculties based on the fact that Riddle admitted to drinking earlier in the day, was involved in an accident, and failed the walk-and-turn test. Riddle contends that hitting his head on the window during the accident and the traumatic experience of the accident itself explain his bloodshot eyes and poor performance on the field sobriety tests. However, Riddle did not offer any evidence indicating his injuries could or did cause his bloodshot eyes or negatively affected his performance on the sobriety tests. Meredith testified that if Riddle had told him at the scene that he had a head injury, he would have noted such in his report, yet his report contained no such notation. The judge, as fact-finder, was free to believe the officer's testimony that Riddle's behavior and performance on the sobriety tests resulted from his intoxication and disbelieve Riddle's contention that his performance resulted from the trauma of the accident. See Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). The effect of Meredith's inexperience, hurriedness, incentive to make an arrest to finish his certification, and argument with Riddle's father are issues of credibility within the province of the fact-finder to resolve. Meredith testified that he had completed all of the coursework necessary for his certification, and was lacking seven field sobriety tests. Meredith testified that he did not arrest Riddle because of the altercation he had with Riddle's father. In addition, his testimony regarding his desire to leave work on time was in response to a question as to why he did not inspect the damage to the vehicles, but no witness who testified, including Meredith, indicated that he rushed through the field sobriety testing. Furthermore, Officer Sander also concluded Riddle was intoxicated nearly two hours after the accident. The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony and could have concluded that Riddle was intoxicated. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). It was for the trial judge to resolve any inconsistencies in determining if Riddle was intoxicated. Baker, 177 S.W.3d at 118. Riddle also complains that the State presented no evidence that he was driving poorly before the accident, but lack of this evidence does not render a DWI conviction factually insufficient. Cooper v. State, 961 S.W.2d 229, 232 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). The same can be said about the State's failure to rebut Riddle's claim that his repeated requests for a blood-alcohol test were denied. Riddle further contends the evidence is factually insufficient because he and his father both testified that he had not had any alcohol for five hours preceding the accident. However, the trial judge was free to accept this testimony or to reject it. See Johnson, 23 S.W.3d at 8; Cain, 958 S.W.2d at 407. Because this case is based in the main on whether the police officers or Riddle's witnesses were more credible, which testimony was more persuasive, and what weight to give conflicting versions of vital facts, we should not circumvent the trial judge's finding. See Johnson, 23 S.W.3d at 8; Cain, 958 S.W.2d at 407. Conclusion
We hold that the evidence was factually sufficient to support Riddle's conviction for DWI and thus affirm the judgment of the trial court.