No. 14-08-00050-CR
Memorandum Opinion filed March 10, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the County Court at Law, Washington County, Texas, Trial Court Cause No. 07-455.
Panel consists of Justices YATES, SEYMORE, and BOYCE.
WILLIAM J. BOYCE, Justice.
Appellant Julian Kuciemba appeals from his conviction for driving while intoxicated. A jury found him guilty, and the trial court sentenced him to 180 days in jail, probated for 18 months, and a $750 fine. In two issues, appellant contends that (1) the evidence was legally insufficient to show that he was intoxicated at the time he was driving, and (2) the trial court erred in failing to exclude evidence of a blood test. We reverse and render a judgment of acquittal.
I. BACKGROUND
In the early morning hours of December 19, 2006, Washington County Deputy Jonathan Prior was dispatched to a one-vehicle rollover accident on U.S. Highway 290. Upon arriving at the scene, he observed a dark-colored pickup truck resting upright in a ditch with its roof crushed. Deputy Prior saw appellant, who was behind the wheel of the truck, slide across the center console into the passenger seat and exit the vehicle. When Deputy Prior approached, he noticed appellant using the vehicle to steady himself. Appellant had sustained some small lacerations to his forehead from the accident. When asked what had happened, appellant told Deputy Prior that he had fallen asleep. Deputy Prior testified that he noticed a strong smell of alcohol on appellant's breath, appellant's eyes were glassy and bloodshot, he had trouble standing, and he was slurring his speech. Approximately three minutes later, emergency medical services (EMS) arrived at the scene and began treating appellant. Paramedic David Zeiders testified that appellant was a little unsteady on his feet, and had lacerations to his hands and face and a red strap mark across his chest. Zeiders smelled alcohol at the scene but could not determine its source. Deputy Prior confirmed that appellant was the only occupant of the vehicle. Appellant told Zeiders that he had not lost consciousness but could not remember the accident. Appellant agreed to be transported to the hospital by EMS. Zeiders testified that because appellant complained of chest pain, he drew appellant's blood so that hospital personnel could determine whether appellant had sustained any cardiac injury. Zeiders left the accident scene with appellant at 12:41 a.m. and arrived at Trinity Medical Center at 12:48 a.m. After transferring appellant to the emergency room, Zeiders deposited the tubes containing appellant's blood at the nurses' station. After EMS left the accident scene, Texas Department of Public Safety (DPS) Trooper Brian Franks arrived to conduct an accident investigation. Deputy Prior told Trooper Franks that appellant had been taken to the hospital and that he suspected the accident was alcohol-related. After inspecting the vehicle and taking an inventory of the property, Trooper Franks released the vehicle to a wrecker service. Sylvia Waxler, a medical technologist and the section head of Trinity's chemistry department, testified that she had retrieved the vials of appellant's blood from the nurses' station to perform the tests ordered by the emergency room doctor, one of which was an alcohol test. She stated that the results of appellant's test revealed a blood-alcohol content of .214. Corin Folsom, Trinity's outpatient records processor, testified that she complied with a subpoena request from the district attorney's office for the release of appellant's medical records. After the State rested, defense counsel moved for an instructed verdict on the grounds that the prosecution had failed to prove that appellant was driving while intoxicated. The court denied the motion. The court also denied a defense motion to exclude the results of the blood test and a second defense motion for instructed verdict based upon the same grounds as the previous motion. Following his conviction, appellant timely filed this appeal. II. ANALYSIS
In his first issue, appellant contends the evidence was legally insufficient to support a conviction for driving while intoxicated. Specifically, he argues that the evidence failed to establish a temporal link between his driving and intoxication. In considering this challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). This standard of review applies to both direct and circumstantial evidence cases. See Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). A person commits the offense of driving while intoxicated if the person is intoxicated while driving or operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003). "Intoxicated" means not having the normal use of mental or physical faculties due to the introduction of alcohol or other substances into the body. Id. § 49.01(2)(A). The essence of driving while intoxicated is that someone drove or operated a motor vehicle in a public place while intoxicated. See Threet v. State, 157 Tex. Crim. 497, 498, 250 S.W.2d 200, 200 (1952); Zavala v. State, 89 S.W.3d 134, 137 (Tex.App.-Corpus Christi 2002, no pet.). In light of appellant's sufficiency challenge, the critical inquiry here is whether there is proof from which a fact finder could conclude that appellant was intoxicated at the time of the driving in question — in other words, a temporal "link" between his driving and the intoxication. See Zavala, 89 S.W.3d at 139. To fix the time of an accused's unlawful driving to support a conviction for driving while intoxicated, there must be independent evidence of (1) how recently the vehicle had been driven; or (2) how much time had elapsed between the accident and the arrival of the police officer. See Stoutner v. State, 36 S.W.3d 716, 721 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (citing Weaver v. State, 721 S.W.2d 495, 498-99 (Tex.App.-Houston [1st Dist.] 1986, pet. ref'd)). Evidence that the accused was intoxicated at the scene of an accident when the police arrived does not, standing alone, establish intoxication at the prohibited time, i.e., while the accused was driving. Stoutner, 36 S.W.3d at 721; Weaver, 721 S.W.2d at 498. Absent evidence in the record establishing the time of the accident or of the defendant's conduct in driving in a public place, the evidence is insufficient to show that the defendant drove while he was intoxicated. Stoutner, 36 S.W.3d at 721; Weaver, 721 S.W.2d at 498-99. Viewed in the light most favorable to the prosecution, the evidence establishes that appellant was intoxicated when Deputy Prior arrived at the scene. However, there is neither direct nor circumstantial evidence to establish the necessary temporal link between the driving and the intoxication. The State presented no witnesses to testify regarding appellant's driving before the accident occurred. Cf. Chaloupka v. State, 20 S.W.3d 172, 175 (Tex.App.-Texarkana 2000, pet. ref'd) (witnesses saw defendant speeding and driving erratically on roadway before accident); Nichols v. State, 877 S.W.2d 494, 496 (Tex.App.-Fort Worth 1994, pet ref'd) (witness testified that defendant drove erratically upon leaving party approximately fifteen minutes before accident occurred). Nor is there any evidence to establish how soon after the accident Deputy Prior arrived at the scene. Cf. Rawls v. State, 167 Tex. Crim. 106, 108, 318 S.W.2d 662, 663 (1958) (radiator and motor of accident vehicle were still hot upon officers' arrival); Turner v. State, 877 S.W.2d 513, 514 (Tex.App.-Fort Worth 1994, no pet) (engine of accident vehicle was still leaking steam when officer arrived). The State does not address appellant's argument that the evidence is insufficient to demonstrate a link between his driving and intoxication. Instead, it asserts that appellant's conviction is supported by evidence that Deputy Prior observed appellant behind the wheel of the vehicle when he arrived at the accident scene; appellant was unsteady on his feet; his eyes were glassy and bloodshot, his speech was slurred, and he had a strong odor of alcohol on his breath; and his blood-alcohol content was .214, more than two-and-a-half times the legal limit. Although this evidence supports a finding that appellant was intoxicated at the accident scene, it is insufficient to show that appellant was intoxicated while driving. Under these circumstances, appellant's first issue challenging the sufficiency of the evidence must be sustained. See Johnson v. State, 517 S.W.2d 536, 538 (Tex.Crim.App. 1975). Therefore, we need not address appellant's second issue. III. CONCLUSION
Accordingly, we reverse the judgment of the trial court and render a judgment of acquittal.