Nos. 05-04-01211-CR, 05-04-01212-CR
Opinion issued October 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 3, Collin County, Texas, Trial Court Cause Nos. 003-84226-03 003-85757-03. Affirmed.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice WRIGHT.
Donald Eugene Thompson appeals his convictions for driving while intoxicated (DWI) and leaving the scene of an accident involving damage to a vehicle over $200.00 (LSA). See Tex. Penal Code § 49.04 (Vernon 2002); Tex. Transp. Code § 550.022 (Vernon 2002). After a jury found him guilty, punishment was assessed at sixty days confinement in each case. The trial court imposed a fine of $750.00 in the DWI case and a fine of $500.00 in the LSA case. In two issues, appellant claims the evidence is insufficient to support his conviction and that the trial court erred in admitting testimony that appellant refused to submit to a breathalyzer test in the DWI case. In three issues, appellant claims that the application paragraph in the jury charge did not adequately identify the victim, that the trial court erred in denying his request for an instructed verdict, and that the trial court erred in failing to submit his requested jury instruction in the LSA case. We overrule appellant's issues and affirm the trial court's judgment.
Facts
On July 19, 2003, Michelle Simmons was travelling on McCreary Road in Wylie when she saw a black sport utility vehicle (SUV) suddenly swerve into oncoming traffic and hit a pick-up truck. Simmons and other eyewitnesses pulled over to the side of the road and waited for the police to arrive so that they could give their statements. Before Simmons left the scene, she saw the SUV drive off into an adjoining neighborhood. Susan Brown testified that she was traveling on McCreary Road when she passed a pick-up truck traveling in the other direction. She heard the pick-up truck honking its horn. After the truck passed her, she looked in her rearview mirror and saw a black Ford Explorer collide head-on with the pick-up truck. Brown and her husband were on an errand to deliver food to a needy family, so they continued without stopping. After they delivered the food, they went back to the accident scene and gave a statement to police. Brown estimated that by the time they returned, only about five minutes had passed since the time of the accident and she was surprised to see that the black Ford Explorer was no longer there. Adam Kirby was working as a lifeguard at a community pool on the day of the accident. While he was on a break, he heard a large "bang" and looked over to see that two cars had collided. He ran over to see if he could help because he was worried someone might have been injured. Kirby approached the pick-up truck and saw that the driver was okay. He then turned to the Explorer and asked the driver if he was okay. The driver of the Explorer, who Kirby identified as appellant at trial, did not respond and only stared blankly. Kirby noticed that appellant had "little pieces of white chunks" on his face and it appeared he had vomited. Kirby also smelled alcohol on appellant's breath. Without saying anything, and without getting out of his vehicle, appellant drove off into the adjoining neighborhood. Officer Matthew Mayes of the Parker Police Department testified that immediately after the accident in this case occurred, he was dispatched to search for a black Ford Explorer that had fled the scene. He and his partner, Officer Lisa Howell, located the vehicle approximately a half-mile or so from where the accident took place. Officer Rodney Henderson of the Murphy Police Department also arrived at the residence and the three officers observed a black Ford Explorer with extensive front-end damage parked in the driveway. They approached the residence and were allowed in by the owner. There, they encountered appellant. Officer Mayes noticed that it appeared appellant had urinated on himself, that his eyes were bloodshot, and that he swayed when he walked. Officer Howell testified likewise. Officer Henderson led appellant outside and asked him if he was drunk. Appellant responded that he had "had a few." Appellant also admitted he had just been in a car wreck. Officer Henderson smelled a strong alcoholic odor coming from appellant and observed that appellant's speech was slurred. In Officer Henderson's opinion, appellant was intoxicated. The factors that contributed to his opinion were that appellant's speech was slurred, his eyes were bloodshot, he was staggering, and he had left the scene of the accident. Officer Joddy Warren of the Wylie Police Department arrived at the residence and encountered appellant and Officer Henderson. Officer Henderson had to hold appellant up because he was having trouble standing. Appellant's eyes were bloodshot, his speech was slurred, and Officer Warren detected a strong smell of alcohol coming from him. Officer Warren assisted appellant to the area in front of his patrol car to conduct field sobriety tests. Officer Warren demonstrated the first test and asked appellant if he understood how to do it. Appellant did not respond. Officer Warren then asked appellant to begin the test, but appellant said he did not want to take part in the test. Officer Randy Hooker of the Wylie Police Department arrived and Officer Warren advised him that appellant was the suspected driver of the Ford Explorer involved in the accident. Officer Hooker testified at trial that it appeared appellant had urinated on himself and that he smelled of alcohol. Officer Hooker asked appellant if he had been in an accident, but appellant shook his head and would not answer. Officer Hooker then performed a horizontal gaze nystagmus test on appellant's eyes. When the test resulted in six out of six clues, meaning that appellant was most likely intoxicated, Officer Hooker asked appellant to submit to some additional field sobriety tests. Appellant refused. When Officer Hooker asked appellant if he had been drinking, appellant stated that he had had three or four beers. Officer Hooker then took appellant into custody and transported him to the Wylie Police Department. While there, Officer Hooker conducted another horizontal gaze nystagmus tests which yielded the same results as the previous test. He then asked appellant to submit to the field sobriety tests he had earlier refused, and to take a breathalyzer test. Appellant refused both requests. When Officer Hooker tried to advise him of his statutory warnings, appellant became very uncooperative. He would not read his statutory warnings and claimed he did not understand them when Officer Hooker read them to him repeatedly. In Officer Hooker's opinion, appellant was intoxicated and had lost the normal use of his mental and physical faculties. Jesus Garcia testified that on July 19, 2003, he worked for Juan's Trenching and was driving a work vehicle owned by his boss, Juan Aparicio. While traveling on McCreary Road, a black Ford vehicle struck the pick-up truck he was driving. The collision stunned Garcia so he got out of his vehicle and sat on the grass on the side of the road. The driver of the Ford left the scene of the accident without getting out of his car, without giving his name, and without providing any insurance information. Juan Aparicio testified that on July 19, 2003, his employee, Garcia, was driving his 1994 Chevrolet pick-up truck when it was involved in the accident in this case. The vehicle was totaled and Aparicio received insurance proceeds of $4,100.00 for the loss. Appellant called two witnesses to testify, Roger and Susan Holloway, who own the house where appellant was apprehended. Roger, appellant's friend of over thirty years, related that when appellant arrived at his home he came inside and kept repeating that he did not know what had happened and was acting as if he had a head injury. While appellant sat in the living room for approximately ten to fifteen minutes, Roger did not smell alcohol on appellant's breath, nor did he smell urine on his clothing. When Roger inspected appellant's car, he noticed that a cooler with ice in it had overturned inside and the seats in the car were wet. Roger and Susan had determined that appellant had been in an accident and were preparing to take him to the accident site when the police arrived. Roger did not observe appellant having difficulty standing when he was detained by the police; nor did he hear appellant speak in a slurred manner. Susan testified similarly. Specifically, she said that she did not smell alcohol on appellant's breath, that he did not stagger when he walked, and that appellant was preparing to return to the scene of the accident when the police arrived. The DWI Case
In his first point of error, appellant challenges the sufficiency of the evidence to support his conviction. When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether a rational jury could have found appellant guilty of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When reviewing the factual sufficiency of the evidence, we review all of the evidence in a neutral light and will reverse only if the evidence supporting the verdict is too weak to support a finding of guilt beyond a reasonable doubt, or if the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 483-84 (Tex.Crim.App. 2004). The jury is the sole judge of the credibility of the witnesses and we afford great deference to the jury's findings on that issue. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 648 (1997). A person is guilty of the offense of driving while intoxicated if the evidence shows that he operated a motor vehicle in a public place while intoxicated. Tex. Penal Code § 49.04(a) (Vernon 2002). In this case, four officers testified that minutes after the accident, appellant had bloodshot eyes, smelled of alcohol, and had difficulty standing. Three of the officers also believed appellant had urinated on himself, thus exhibiting a loss of his physical faculties. The horizontal gaze nystagmus test indicated that appellant had been drinking. By appellant's own admission, he was the driver of the car involved in the collision and had "had a few." Although appellant contends the evidence shows only that he was intoxicated when he was arrested, but not that he was driving while intoxicated, we cannot agree. Kirby, the lifeguard who ran to the scene to offer assistance, testified that appellant was driving the SUV when the accident occurred, he smelled of alcohol, and had vomited on himself. This evidence is sufficient to show appellant was driving while intoxicated. See Jones v. State, 111 S.W.3d 600, 606 (Tex.App.-Dallas 2003) (holding that lay testimony is admissible to show intoxication). Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support the jury's verdict of guilt. Jackson, 443 U.S at 319. Likewise, the evidence is also factually sufficient because the evidence supporting appellant's guilt was not so weak that it could not support a finding of guilt beyond a reasonable doubt; nor was the contrary evidence so strong that the State could not prove its case beyond a reasonable doubt. Zuniga, 144 S.W.3d at 483-84. Appellant's first point of error is overruled. In his second point of error, appellant contends that the trial court erred in allowing Officer Hooker's testimony that he refused to submit to a breathalyzer test. Appellant did not object to Officer Hooker's testimony at trial. Therefore, he has failed to preserve error on appeal. Tex.R.App.P. 33.1(h) (Vernon 2002). Accordingly, appellant's second point of error is overruled. The LSA Case
In his first point of error, appellant claims "the trial court erred in the application paragraph of the court's charge." He seems to be arguing that the trial court erred when drafting the application paragraph because it identifies the victim in this case as "Jesus Garcia," while the indictment alleges the victim is "J. Garcia." He states that "there was no evidence brought to the jury that the J. Garcia presented in the information to them was also the one and same Jesus Garcia who had been called to testify." Appellant did not object to the application paragraph at trial. Therefore, he is only entitled to relief if he can show egregious harm which resulted in a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). Appellant cannot show egregious harm because the variance between the name listed in the indictment and the name listed in the application paragraph is immaterial. See Fuller v. State, 73 S.W.3d 250, 254 (Tex.Crim.App. 2002) (holding that a variance between the victim's name as alleged in the indictment and the proof of the victim's identity presented at trial was immaterial because there was no indication in the record that the defendant did not know who the victim was or was surprised in any way because of the variance). Accordingly, appellant's first point of error is overruled. In his second point of error, appellant contends that the trial court erred by denying his motion for instructed verdict. "We treat a point of error complaining about a trial court's failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence." Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether a rational jury could have found appellant guilty of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Appellant claims the motion should have been granted because the State failed to show that the pecuniary loss to both of the vehicles involved in the accident was more than $200. His claim fails for two reasons. First, there is evidence in the record to show that the damage to the victim's car was more than $200.00. Aparicio testified that his pick-up truck was totaled and that he received insurance proceeds of $4,100.00. Second, the State was not required to prove any monetary damage to appellant's vehicle, provided that the damage to the victim's car was more than $200.00. See Tex. Transp. Code § 550.022 (c)(2). Even assuming it was, Officers Henderson, Mayes, and Howell all testified that appellant's vehicle sustained extensive front-end damage. Therefore, viewing the evidence in the light most favorable to the verdict, we conclude that the evidence was legally sufficient to show that the monetary damages caused by appellant were more than $200.00. See Jackson, 443 U.S. at 319. Appellant's second point of error is overruled. In his third point of error, appellant argues that the trial court erred in refusing to submit his requested jury instruction. Specifically, he asked the trial court to instruct the jury that it is a defense to the offense of leaving the scene of an accident if the defendant can show he was prevented from returning to the scene of the accident. Appellant cites two cases in support of his position. The first, Bowden v. State, 361 S.W.2d 207 (Tex.Crim.App. 1962), is a case in which the defendant challenged the sufficiency of the evidence used to convict him of the offense of failing to stop and render aid. In that case, the defendant's car collided with another car when one of his tires blew out. Id. at 208. The collision occurred in front of the other driver's house and her family took her to the hospital. Id. The defendant claimed the evidence was insufficient to convict him because he was prevented from taking the victim to the hospital. Id. However, there is no mention of jury instructions or defensive theories. The claim made here, that appellant was entitled to an instruction on a defensive theory, was not an issue in Bowden. Therefore, it does not apply to the instant case. The second case appellant cites is Davis v. State, 199 S.W.2d 155 (Tex.Crim.App. 1946). In Davis, the defendant's car collided with another car right down the road from where a military police jeep was parked. Id. at 156. At trial, appellant claimed that he was prevented from aiding the victim because he was arrested by the military police. Id. His defensive theory was presented to the jury, but it was rejected. Id. While the court held that the trial court's submission of the defensive instruction was proper because the issue was raised by the evidence, the facts of that case were very different from the facts of the present case. Id. at 157. In Davis, the defendant was arrested at the scene of the accident and testified at trial that he asked the police officer to let him go so that he could aid the other driver. Id. at 156. In this case, appellant immediately fled the scene of the accident and went to a friend's house, where he remained for fifteen to twenty minutes until the police found him. Therefore, the commission of the offense was already completed. See Tex. Transp. Code § 550.022 (a) (Vernon 2002). Appellant's reliance on Davis is misplaced because the facts in that case are easily distinguishable from the facts of this case. Accordingly, appellant's third point of error is overruled. We affirm the trial court's judgment.