Summary
holding evidence factually sufficient to support DWI conviction, despite testimony that appellant had undergone three brain surgeries and spinal surgery
Summary of this case from Bryant v. StateOpinion
No. 11-08-00003-CR
Opinion filed August 14, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the County Court at Law No. 2, Ector County, Texas, Trial Court Cause No. 06-4094.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
The jury convicted Donna Wolsey Guyett of driving while intoxicated. Pursuant to the plea bargain agreement reached after the jury returned its verdict, the trial court assessed her punishment at confinement for six months. Following the terms of the agreement, the trial court suspended the imposition of the sentence and placed appellant on community supervision for six months. We affirm. In two issues, appellant challenges the legal and factual sufficiency of the evidence. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The record reflects that at the time of the accident appellant had had three brain surgeries and one spinal surgery. She had a total of seventeen prescription medicines she took during the day. The labels on some of these medications contained a warning against operating heavy machinery or driving a vehicle. Texas Department of Public Safety Officer Alejandro Montoya, Jr. testified that he responded to the accident call. Appellant was the only occupant of a vehicle that had been driven through a fence. Appellant was "very disoriented, very groggy." Officer Montoya stated that appellant did not appear to be aware of "what was going on" and "definitely did not appear to be in a condition to be operating a motor vehicle." Appellant's speech was very slurred, and she fumbled around for her identification. Officer Montoya did not smell any alcohol or illegal substances. Appellant could not keep her balance and "nearly" fell into the roadway. Because appellant was disoriented, Officer Montoya asked her if she was taking any medication and if she had taken any prior to the accident. Appellant could not recall. Appellant told Officer Montoya that her medications were listed on her palm pilot that was in her purse. Appellant then showed Officer Montoya the following list: Topamax 100 milligrams, hydrocodone 325 milligrams, Cymbalta 60 milligrams, Geodone 80 milligrams, Lyric 100 milligrams, tizanidine, Allegra 180 milligrams, baclofen 10 milligrams, desmopressin 0.2 milligrams, Adderall XR 40 milligrams, isosorbide 30 milligrams, meteclopramide 10 milligrams, sulfasalazine 500 milligrams, Nexium 40 milligrams, Ambien 12.5 milligrams, Aricept 10 milligrams, and Miralex 17 milligrams. Officer Montoya testified that appellant's condition, her failure to recall taking medication that day, and the list she provided him so alarmed him that he contacted the paramedics so that medical professionals could attend to her. At the scene, Officer Montoya conducted the horizontal gaze nystagmus test and the walk-and-turn test. Appellant swayed and had difficulty maintaining her balance. While her pupils were the same size, appellant exhibited involuntary jerking of her eyes. Officer Montoya decided to take appellant to a "safe environment" to conduct the remaining portions of the field sobriety examination. The results of appellant's breath test reflected that she had not had any alcoholic beverage. Officer Montoya stated that appellant told him that she had dropped something and was reaching for it when the accident occurred. Officer Montoya further stated that, while appellant was a little upset, she was very polite under the circumstances and answered his questions to the best of her ability. Phillip Tally testified that he was a registered nurse and that he examined appellant at the scene. Appellant had no injuries or complaints other than that she did not want to be there. Tally stated that appellant's speech was slurred and that she did not have good motor skills. Tally also stated that people who were overmedicated exhibit these same signs. Tally said that her condition was not consistent with any possible injuries associated with the type of accident appellant had. Appellant testified that she was driving home when a "bobble head armadillo" that she had on the dashboard of her car "vibrated off." When she tried to catch it, she drove over into the gravel on the side of the road. She overcorrected, spun out, and went through the fence. Appellant stated that the cause of her accident was trying to catch the "bobble head armadillo." Appellant described her three brain surgeries and her spinal surgery. As a result of her surgeries, her balance was not very good; she was unsteady when she walked; and she sometimes used a cane. At the time of the accident, she had seventeen prescription medications. At the time of trial sixteen months later, appellant stated that she was taking only a "part" of those medications. Appellant testified that she only took prescription medicine pursuant to her doctors' orders, that she did not take other people's medicines, that she did not buy drugs on the street, and that she did not use illicit or dangerous drugs. She stated that, "once in a blue moon," she might drink. Appellant said that her children were grown and that she lived with her mother. She was just two and one-half blocks from her home when she had the accident. Appellant acknowledged that some of her prescription medicines carried a warning that the medicine might cause drowsiness and lessen the ability to drive. She stated that she had been on these medications for "many, many years" and that she was "acclimated" to them. She stated that neither her doctors nor the Department of Public Safety had told her that she could not drive. She also stated that, when her children still lived at home, they had had to care for her. Appellant argues that there is "a complete absence of any evidence regarding the amount, type, and effects of any medication taken" and, therefore, that the evidence is legally insufficient. Further, appellant contends that this absence of proof undermines the verdict and reflects a factual insufficiency of the evidence. TEX. PENAL CODE ANN. § 49.01(Vernon 2003) defines intoxicated for the purposes of the offense of driving while intoxicated to mean "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body" or "having an alcohol concentration of 0.08 or more." Just as these provisions do not require the State to prove the type or amount of alcohol that resulted in the defendant's intoxication, these statutes do not require the State to prove the type or amount of drug or "other substance" that resulted in the intoxication. These statutes only require that the State establish impairment beyond a reasonable doubt. The jury was the finder of fact and was the sole judge of the weight and credibility of the witnesses' testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). This court reviews the factfinder's weighing of the evidence but cannot substitute our own judgment for that of the jury. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). The law requires that we give due deference to the jury's determinations, particularly concerning the weight and credibility of the evidence, and allows this court authority to disagree with the jury "only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Johnson, 23 S.W.3d at 9. When reviewed in the light most favorable to the verdict, the evidence is legally sufficient to sustain the conviction. A rational jury could have determined from Officer Montoya's testimony, from Tally's testimony, and from appellant's own testimony concerning her medications and their effects on her that appellant did not have the normal use of her mental and physical faculties and that she committed the offense as defined and alleged. Likewise, when viewed in a neutral light, we find neither that the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust nor that the verdict is against the great weight and preponderance of the conflicting evidence. Therefore, under the standards cited above, the evidence is factually sufficient. Both issues are overruled. The judgment of the trial court is affirmed.
TEX. PENAL CODE ANN. § 49.04 (Vernon 2003).