No. 05-05-00157-CR
Opinion Filed April 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-81181-04. Affirmed.
Before Justices MOSELEY, LANG, and MAZZANT.
Opinion By Justice LANG.
Daniel Eugene Lyons, Jr., appeals the trial court's judgment convicting him of felony driving while intoxicated and assessing his punishment at thirty years of imprisonment. Lyons raises three issues on appeal: (1) the evidence is legally insufficient to prove he was previously convicted of two DWI offenses; (2) the evidence is legally insufficient to prove he had lost the normal use of his mental or physical faculties due to the introduction of alcohol; and (3) the evidence is factually insufficient because the verdict is contrary to the overwhelming weight of the evidence. We conclude the evidence is legally and factually sufficient to support Lyons's conviction. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Around 5:00 p.m. on April 8, 2004, Lyons went to a convenience store and purchased some beer. While at the store Lyons fell. The clerk at the store called the police, reported that a customer may be intoxicated, and provided a description of the customer's truck and the license plate number. Officers Going and Wildes responded to the radio dispatch regarding the clerk's call. Officer Going saw the truck leave the convenience store and followed it in his patrol car. He observed the truck sway within the lane, although it did not cross the white lines. Officer Going activated his siren and the truck turned into a parking lot, bumping the curb. When Officer Going approached the truck and spoke to the driver of the truck, Lyons, he observed the heavy odor of alcohol. Officer Wildes arrived shortly after Officer Going stopped Lyons. He observed the strong odor of alcohol and asked if Lyons had been drinking. Lyons responded that he had consumed a six- or twelve-pack, which he began drinking at 8:00 a.m. that morning. Lyons also stated that alcohol had been spilled in the back seat of his truck. Officer Wildes observed that Lyons turned away when he spoke and believed Lyons was attempting to shield the odor of alcohol on his breath. Officer Wildes conducted the horizontal gaze nystagmus test and observed that Lyons demonstrated six of the six clues. He did not conduct the walk-and-turn or the one-legged-stand tests because Lyons had a physical impairment that affected his motor skills. Officer Wildes concluded that Lyons was intoxicated and arrested him. Officer Wildes asked Lyons where he put the beer he purchased at the convenience store and Lyons told him it was in the truck. Officer Going searched the truck and found five open containers of beer, two that were still cool to the touch and one with beer still in it. Officer Wildes transported Lyons to the intoxilyzer room. While he was driving, Lyons stated he was glad he had been arrested, he was sick of drinking, he does not want to drink anymore, and this was a wake-up call for him. In the intoxilyzer room, Officer Wildes read Lyons the statutory warning and asked him to submit a specimen of his breath. Lyons refused to take the breath test and signed the statutory warning form to that effect. While in the intoxilyzer room, Lyons told Officer Wildes he took only three sips out of one drink. Later, Lyons offered to give a breath specimen, but Officer Wildes told him it was too late. Lyons was indicted for felony DWI. The indictment contained two enhancement paragraphs alleging prior DWI convictions in 1999 and 1993. The jury found Lyons guilty of felony DWI and the trial court assessed his punishment at thirty years of imprisonment. II. STANDARDS OF REVIEW
Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Also, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id. A. Legal Sufficiency
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998). B. Factual Sufficiency
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. III. LEGAL SUFFICIENCY OF THE EVIDENCE TO PROVE PRIOR CONVICTIONS
In his first issue, Lyons argues the evidence is legally insufficient to prove he was previously convicted of two DWI offenses. Specifically, Lyons argues the State properly proved only one prior conviction so he should not have been convicted of felony DWI. Instead, he claims he should have been convicted of the lesser included offense, which was a class A misdemeanor. The State responds that the penitentiary packet for Lyons's 1999 conviction for third-degree felony DWI was linked to him through his fingerprints, the indictment for the 1999 DWI conviction was linked to the pen packet through abundant identical information, and the indictment for the 1999 conviction contained an enhancement paragraph alleging his 1993 DWI conviction. Also, the State argues that Lyons's trial testimony can be construed as an admission to the 1993 DWI conviction. A. Applicable Law
Section 49.04 provides that a person commits DWI if the person is intoxicated while operating a motor vehicle in a public place. See Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). The offense is a Class B misdemeanor unless it is an offense under section 49.09. Id. § 49.04(b). Section 49.09(b) provides that a defendant may be tried as a felon if he has two prior convictions for DWI. See id. § 49.09(b) (Vernon Supp. 2005). The two prior DWI convictions are elements of the DWI felony offense, which the State must prove beyond a reasonable doubt. See Hollen v. State, 117 S.W.3d 798, 802 (Tex.Crim.App. 2003), cert. denied 541 U.S. 992 (2004). B. Application of the Law to the Facts
Viewing the evidence in the light most favorable to the verdict, there was evidence that Lyons had been convicted of the 1993 DWI. The penitentiary packet for Lyons's 1998 DWI conviction was admitted into evidence, as was the indictment on which that conviction was based. The indictment contained an enhancement paragraph alleging Lyons was previously convicted of DWI in 1993. Although this manner of proving the more remote DWI conviction may not always be legally sufficient, here, we conclude the evidence is legally sufficient to prove Lyons was previously convicted of two DWI offenses. Lyons's first issue on appeal is decided against him. IV. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
In his second and third issues, Lyons argues the evidence is legally and factually insufficient to prove he had lost the normal use of his mental or physical faculties due to the introduction of alcohol and the verdict is contrary to the overwhelming weight of the evidence. Specifically, Lyons argues the arresting police officer did not conduct any field sobriety tests to measure his physical or mental faculties and the evidence does not support a finding that he was intoxicated. The State responds that the evidence of intoxication and Lyons's statement at the time of arrest support his conviction. Also, the State responds that the only contradictory testimony was Lyons's self-serving trial testimony. A. Applicable Law
A person is intoxicated when he does not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into the body. See Tex. Pen. Code Ann. § 49.04; see also Ford v. State, 129 S.W.3d 541, 551 (Tex.App.-Dallas 2003, pet. ref'd). The uncorroborated testimony of an arresting officer is sufficient to prove the element of intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979); Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). A suspect's consent to a breath test must be "voluntary." Turpin v. State, 606 S.W.2d 907, 914 (Tex.Crim.App. 1980); see also Tex. Transp. Code Ann. § 724.013 (Vernon 1999). However, a jury can consider a defendant's failure to submit to a breath test as evidence of guilt. See Tex. Transp. Code Ann. § 724.061 (Vernon 1999) (suspect's refusal to submit breath specimen may be introduced into evidence); Scott v. State, 914 S.W.2d 628, 630 (Tex.App.-Texarkana 1995, no pet.); Finley v. State, 809 S.W.2d 909, 913 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd). B. Application of the Law to the Facts
Viewing the evidence in the light most favorable to the verdict, there was evidence that Lyons had lost the normal use of his mental or physical faculties due to the introduction of alcohol. Officer Going testified Lyons bumped the curb as he was turning into the parking lot and he smelled of alcohol. Officer Wildes testified Lyons smelled of alcohol, failed the HGN test, and he concluded Lyons was intoxicated. See Annis, 578 S.W.2d at 407; Dumas, 812 S.W.2d at 615. There was evidence that Lyons refused to submit a breath specimen for the breath test. See Scott, 914 S.W.2d at 630; Finley, 809 S.W.2d at 913. Also, Lyons told the officers he had consumed a six- or twelve-pack starting at 8:00 a.m. that morning and that the alcohol he had purchased at the convenience store was in the truck. The officers stated they found five open containers of beer in the truck, two that were still cool and one with beer still in it. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that Lyons was guilty of felony DWI. It is clear that Lyons's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that Lyons's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Lyons's conviction for felony DWI. Lyons's second and third issues on appeal are decided against him. VI. CONCLUSION
The evidence is legally sufficient to prove Lyons was convicted of two prior DWI offenses and he had lost the normal use of his mental or physical faculties due to the introduction of alcohol. The evidence was factually sufficient to support Lyons's conviction for felony DWI. The trial court's judgment is affirmed.