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Court of Appeals of Texas, Fourteenth District, HoustonAug 30, 2007
No. 14-06-00360-CR (Tex. App. Aug. 30, 2007)

No. 14-06-00360-CR

Opinion filed August 30, 2007. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the 122nd District Court, Galveston County, Texas, Trial Court Cause No. 04CR1691.

Panel consists of Justices FROST, SEYMORE, and GUZMAN.


Appellant Joseph Eugene Linkey was convicted for driving while intoxicated ("DWI") and sentenced to four years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On appeal, he argues that he was denied his right to a unanimous jury verdict because the charge permitted the jury to convict if it found that appellant drove while alcohol or drugs deprived him of "the normal use of mental or physical" faculties. In addition, appellant challenges the factual sufficiency of the evidence. We affirm.

This was his third such conviction.


Kira Cox was stopped at a red light when her car was struck from behind by a red truck driven by appellant. The impact caused Cox's car to strike the vehicle in front of her. When the light turned green, Cox and the driver of the first vehicle pulled over, but appellant swerved his truck around the two vehicles and sped away. Cox pursued appellant onto the freeway and followed him at speeds of 90B95 m.p.h. as appellant wove in and out of traffic. Appellant exited the freeway, but according to Cox, he "slammed on the brakes" bringing his truck to a stop and forcing Cox to swerve to avoid a second collision. Cox then pulled in front of appellant and stopped, and appellant moved his truck to Cox's left, stopped next to her, and asked why she was following him. Cox told appellant that he had hit her vehicle, and according to Cox, he responded, "I did'" Cox and appellant then agreed to drive to a gas station. Cox testified that she and appellant parked their vehicles as agreed and she showed appellant the damage to her car. According to Cox, she said, "Look what you did to my car," and appellant responded, "I did that" Cox further testified that appellant asked her if she wanted a drink, and Cox answered, "No, I want you to fix my car." After their conversation, appellant went into the gas station, while Cox waited outside. Cox's passenger, Jacquelyn Lange, also testified at trial. Like Cox, she described the impact as "pretty hard." She similarly testified that Cox and the vehicle in front of her pulled over, and that appellant swerved around them and onto the freeway where Cox pursued him at speeds of 90B95 m.p.h. Like Cox, Lange testified that appellant drove down an exit ramp and stopped quickly, forcing Cox to veer around him. She similarly testified that Cox and appellant stopped at a gas station, and that Cox and appellant had a conversation outside of the vehicles before appellant went into the gas station. During this conversation, Lange was speaking on a telephone to the police. Officer Marty Adcock of the League City Police Department testified that he responded to the call and observed slight damage to Cox's vehicle, including a transfer of red paint to the car's rear bumper. Appellant emerged from the gas station eating potato chips, and Officer Chris Skendziel began to administer field sobriety tests. "dcock testified, "I could smell a strong odor of alcohol. I noticed that the subject had red, glassy, bloodshot eyes; very slurred speech. Motor skills didn't seem normal. He seemed somewhat impaired." Adcock identified these as signs of intoxication, and agreed that slurred speech is not normally a "symptom of tiredness." According to Adcock, appellant "was not very steady on his feet" but did not stumble when taken to the police car. In Adcock's opinion, appellant was intoxicated and did not have the normal use of his mental and physical faculties. Officer Skendziel testified that appellant was eating potato chips as he exited the gas station; Skendziel testified that he did not detect the smell of alcohol on the appellant while at the gas station, but the smell of the chips was "pretty strong." Skendziel described appellant as "kind of surprised or confused. He was slow to answer questions a little bit. He did have slurred speech." Skendziel also testified that he found a knife in appellant's pocket after appellant denied possessing weapons. Skendziel stated that he began to administer the horizontal gaze nystagmus ("HGN") test but had to repeat instructions to appellant three or four times. Skendziel explained that the HGN test can produce six "clues" of intoxication, and people who are tired do not normally fail the HGN test. According to Skendziel, he had administered half of the test and detected three clues of intoxication when appellant refused further testing. The officers' interaction with appellant was videotaped from Skendziel's patrol car. Appellant was initially arrested for public intoxication, but after Cox and Lange verified that appellant was the driver of the truck involved in the collision, Skendziel changed the charge to driving while intoxicated. Appellant was taken to the police station, and Skendziel testified that when he opened the back door of the police car or walked beside appellant, he could smell alcohol. According to Skendziel, appellant was intoxicated and was not in normal control of his mental and physical faculties. At the station, appellant was videotaped as he refused further field sobriety testing and refused to accept or sign a copy of the statutory warning for DWI. He also refused to give a breath sample or to read a questionnaire. This portion of the videotape, however, did not capture sound. Appellant's father testified that appellant's truck had no major damage, and appellant's employer, Larry Barber, testified that appellant had been at Barber's house from approximately 8:00 p.m. until around midnight. According to Barber, there were about ten people at his house at that time, and appellant had three or four beers before 9:30 p.m. He also testified that he could not say how many beers appellant had because he did not keep track. Barber described appellant as bipolar and "a little short tempered" but a dependable worker. When asked if he would lose a valued employee if appellant were convicted, Barber responded, "Absolutely." Finally, appellant's friend and co-worker, Richard McClelland, testified that he had been at Barber's house that evening, and had not seen appellant drinking at all. According to McClelland, appellant "looked like he had been hit by a semi, tired, wore out." McClelland indicated that appellant had worked throughout the preceding night and day. The jury was charged to find appellant guilty if he drove while "intoxicated by not having the normal use of mental or physical facilities [sic]" due to alcohol or drugs. The jury convicted him of the offense with enhancements for two prior convictions, and the court sentenced him to four years' imprisonment. This appeal ensued.


In his first issue, appellant contends that he was denied his constitutional and statutory right to a unanimous jury verdict because the trial court's charge permitted the jury to convict him if some jurors found he had lost the normal use of his physical faculties, but others found he had lost the normal use of his mental faculties. In his second issue, appellant contends the evidence is factually insufficient to support his conviction. Specifically, appellant asserts that the evidence against the verdict is so strong that the "beyond a reasonable doubt" standard for conviction could not have been met.


A. Jury Unanimity

When analyzing allegations of charge errors, we perform a two-step review: first, we determine whether the charge is erroneous; if so, we determine whether the error caused sufficient harm to require reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). In determining whether a jury charge erroneously permitted a non-unanimous verdict, we begin by examining the language of the statute to determine the elements of the crime and whether the legislature has created a single offense with multiple or alternate methods of commission. Jefferson v. State, 189 S.W.3d 305, 311 (Tex.Crim.App. 2006). While jury unanimity is required on the essential elements of an offense, the jury generally is not required to return a unanimous verdict on the specific method of committing a single offense. Id.; see also Ngo v. State, 175 S.W.3d 738, 747 n. 32 (Tex.Crim.App. 2005) (en banc). Texas law provides that a person is "intoxicated" for purposes of the DWI statute if (a) he has a blood alcohol concentration of 0.08 or more, or (b) he does not have "the normal use of mental or physical faculties by reason of the introduction of alcohol," drugs, "a combination of two or more of those substances, or any other substance into the body. . . ." TEX. PENAL CODE § 49.01(2)(B) (A) (Vernon 2003). The separate statutory definitions of "intoxicated" constitute two alternate means of committing the one offense of driving while intoxicated. Ex parte Crenshaw, 25 S.W.3d 761, 766 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd); Fulenwider v. State, 176 S.W.3d 290, 298B99 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd); Kilgo v. State, 880 S.W.2d 828, 830 (Tex.App.-Dallas 1994, pet. ref'd). In this case, for a unanimous verdict, each juror must have agreed that appellant was intoxicated while operating a motor vehicle in a public place. It is not necessary for all jurors to agree that appellant's impairment was physical or that the impairment was mental. See Ngo at 747 ("criminal jury must unanimously agree on each `element'" of the crime in order to convict, but need not agree on all the `underlying brute facts [that] make up a particular element'") (quoting Richardson v. United States, 526 U.S. 813, 817 (1999)); Stewart v. State, 129 S.W.3d 93, 97 (Tex.Crim.App. 2004) (en banc) ("The jury only needed to believe beyond a reasonable doubt that either her blood alcohol concentration was 0.10 or more, or that she failed to have the normal use of her mental or physical faculties by reason of introduction of alcohol into her body, at the time she drove."). We were presented with the identical argument in Bradford v. State. BS.W.3dB, No. 14-06-00349-CR, 2007 WL 1814203 (Tex.App.-Houston [14th Dist.] June 26, 2007, no pet. h.). There, we explained:
[A]ppellant was charged in this case with one instance of committing one criminal act or offense, driving while intoxicated. See Bagheri, 119 S.W.3d at 762. Intoxication, an element of that offense, can be demonstrated through either the impairment theory or the per se theory. Stewart 129 S.W.3d at 97. The impairment theory, in turn, requires proof of not having the normal use of mental or physical faculties. Id. Because there was only a single criminal act of driving while intoxicated alleged in this case, there were no separate criminal acts on which the jurors could disagree to produce a lack of unanimity.
Id. at *3. The same reasoning applies in the present case. Regardless of the nature of appellant's impairment, jurors unanimously agreed that he was guilty of the essential elements of the charged offense. We therefore overrule appellant's first issue.

B. Factual Sufficiency

We begin a factual-sufficiency review by viewing all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (citing Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997) (en banc)). We may not re-weigh the evidence or substitute our judgment for that of the jury. See Cain, 958 S.W.2d at 407. Unless the record clearly reveals a different result is appropriate, we "must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor." Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000) (en banc). We will reverse only if we are able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. In his brief on appeal, appellant contends that "[t]he State's video was the best evidence to show sobriety" because the video shows appellant "was steady on his feet." He further argues that appellant's employer was "just kind of guessing whether or not and how much [appellant] was drinking" and McClelland did not see appellant drink anything. Appellant also suggests that he could not have driven 90B95 m.p.h. while weaving in and out of traffic without an accident if he had been impaired. Appellant's statement that the videotape shows him standing steadily at the police station is correct, but in the portion of the videotape filmed at the gas station, appellant is so far from the camera that he appears as a partial and indistinct silhouette largely blocked from view by his truck. This portion of the film, however, is accompanied by an audio recording. In the recording, the jury could hear that appellant seemed markedly confused, his speech was slurred, and he was slow to answer questions. When asked about drugs or medication, appellant said, "I take Depakote and Trazodone but I haven't been on them." Appellant's conduct in driving into the back of Cox's car is also evidence of physical or mental impairment, and his high-speed flight from the scene of the accident demonstrates a significant lapse in judgment. Appellant's decision to stop suddenly in the middle of the road, nearly causing a second accident only minutes after causing one collision, is further evidence that appellant did not have the normal use of his mental faculties. On this record, we are unable to say that the great weight and preponderance of the evidence contradicts the jury's verdict. There is no requirement that the State produce an eyewitness to testify that the accused consumed a certain quantity of alcohol within a certain time of the alleged offense; thus, the testimony of Barber and McClelland, if believed by the jury, is not inconsistent with the finding that appellant was intoxicated — by alcohol or otherwise — at the time he later drove his truck. The jury may have assessed the evidence and the credibility of the witnesses and concluded that appellant was intoxicated through the use of alcohol or through the use of another substance, singly or in combination. The preponderance of the evidence does not contradict such a conclusion. Accordingly, we overrule appellant's second issue.


We conclude the jury charge was not erroneous and the evidence is factually sufficient to support the verdict. We therefore affirm the trial court's judgment.