Opinion
No. 05-16-00159-CR
03-08-2017
ANNIE MALONE SALIM, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 6 Collin County, Texas
Trial Court Cause No. 006-86299-2014
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Lang
Annie Malone Salim appeals the trial court's judgment convicting her of driving while intoxicated. The jury found Salim guilty and the trial court sentenced her to one hundred eighty days of confinement, suspended the imposition of her sentence and placed her on twelve months of community supervision, and assessed a $500 fine. In one issue on appeal, Salim argues the evidence is insufficient to support her conviction. We conclude the evidence is sufficient. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL CONTEXT
On September 4, 2013, Linda Boatman called the emergency telephone number, 9-1-1, to report a female driver in a Buick who was "all over the road," "driving so fast," "swerving in and out of lanes," and "stopped at a greenlight. . . . in the middle of the road." Officer Jason Smith responded to the call at 10:47 p.m. When he arrived, he observed the vehicle stopped at a green light "in the middle of the intersection due to the fact that it could be hit by cross traffic that was coming through." He observed the vehicle for several seconds and saw the female driver, who was later identified as Salim, turn on the interior light. According to Officer Smith, Salim "appeared to be messing with something near the center console." To get Salim to drive through the intersection, Officer Smith "shined [his] spotlight on her." "Nothing happened," so he turned on his overhead lights. At that point, Salim drove through the intersection and turned into a parking lot, nearly striking the curb.
Officer Smith walked up to the vehicle and observed Salim trying to find her driver's license and insurance. He noticed that her movements were very slow and lethargic, which he believed indicated that she might be under the influence of alcohol or a drug. Officer Smith advised Salim of the reason for the stop. Salim was eating a candy bar and responded that "she was having a diabetic-like problem" and "when her numbers get low, you get goofy." Also, Salim told Officer Smith that she had been diagnosed with cancer. Salim claimed that she was driving to the Baylor Garland emergency room. Concerned that Salim was having a medical emergency, Officer Smith called EMS to the scene.
While waiting for EMS to arrive, Officer Smith asked Salim about the small dog in the back of her vehicle. Salim answered that her son lives a couple of blocks away from the emergency room and was meeting her there. Officer Smith asked for her son's telephone number because he wanted to get more medical information, but Salim did not have it. Instead, Salim gave Officer Smith her daughter's telephone number. Officer Smith called Salim's daughter and learned that Salim had a thyroid condition, had been told she had precancerous cells, but had not been diagnosed with cancer, and took Ambien. In that communication, Officer Smith learned that Salim's son did not live near the Baylor Garland emergency room, he lived in Denton. Officer Smith confronted Salim with the conflicting information. Salim admitted that she did not have diabetes or cancer, and that she did have precancerous cells and a thyroid condition. Also, Salim stated that "she was on several medications." Officer Smith asked her what medications she was taking, but when she responded, he could not understand her "because a lot of what she was saying was jumbled" and "her speech was mumbled and slurred." Then, after asking several times, hydrocodone was the only drug she mentioned that he could understand. After EMS arrived and checked Salim's vitals, Officer Smith learned that Salim was not having a medical emergency.
The record shows that Officer Smith also testified that he learned Salim's son lived in "Denison."
Officer Smith believed that Salim was intoxicated. He based this belief on the driving behavior he observed, the fact that he had to ask Salim to repeat herself numerous times because he could not understand her, Salim's speech was slurred, her eyes were red and watery, her movements were lethargic, and she admitted that she was on several prescription medications. As a result, he decided to conduct several tests. First, the Horizontal Gaze Nystagmus (HGN) test was conducted, but Officer Smith observed zero clues. Officer Smith acknowledged that the HGN test does not test for hydrocodone. Second, on the walk-and-turn test, Salim exhibited five out of eight clues. Salim refused the one-leg stand test because she said she had a "port" in her back, so Officer Smith administered the alphabet and counting tests. Salim was not able to perform those tests as instructed. Then, at some point, Salim asked Officer Smith if he knew what Meniere's disease is and she mentioned balance.
Officer Smith arrested Salim for driving while intoxicated and Salim refused to provide a blood sample. Before Salim's vehicle was inventoried and towed, Officer Smith removed Salim's purse from her vehicle. At the police station, the police made an inventory of the items in Salim's purse. Inside her purse the police found a prescription pill bottle of alprazolam, which Officer Smith stated is the generic name for Xanax. The prescription pill bottle was in Salim's name. Inside the pill bottle, Officer Smith found five alprazolam pills, one hydrocodone pill, and one cyclobenzaprine pill. There was no indication on the bottle that Salim had a prescription for the hydrocodone or cyclobenzaprine. Although Officer Smith testified that he was not a drug recognition expert, he stated that, based on his training and experience, he recognized the hydrocodone pill and he identified the cyclobenzaprine pill through drugs.com.
Salim was charged by information with the offense of driving while intoxicated. After a trial, the jury found her guilty. The trial court sentenced Salim to one hundred eighty days of confinement, suspended the imposition of her sentence and placed her on twelve months of community supervision, and assessed a $500 fine.
II. SUFFICIENCY OF THE EVIDENCE
In her sole issue on appeal, Salim argues the evidence does not support her conviction because the State did not present sufficient evidence of intoxication. Salim maintains that the person who called 9-1-1 and spoke with the dispatcher did not provide sufficient evidence of intoxication, the caller's statements were not adequately corroborated by Officer Smith, there was no evidence showing when she took any medication, and Officer Smith is not medically trained and has no understanding of the effects of medication on the body. The State responds that the testimony, the recording of the call to 9-1-1, the roadside video, and Salim's admissions to Officer Smith are sufficient to prove she was intoxicated. Also, the State contends that Salim's proffered medical explanations address only the physical issues, they do not address her performance on the mental portion of the tests administered by Officer Smith.
A. Standard of Review
When reviewing the sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). Appellate courts are required to determine whether any rational juror could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.19. An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Merritt, 368 S.W.3d at 525; Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 558 U.S. 120 (2010) (per curiam); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319.
B. Applicable Law
A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2016); Crouse v. State, 441 S.W.3d 508, 513 (Tex. App.—Dallas 2014, no pet.). The term "intoxicated" means: (1) not having the normal use of mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of those substances, or any substance into the body; or (2) having an alcohol concentration of 0.08 or more. See TEX. PENAL CODE ANN. § 49.01(2); Crouse, 441 S.W.3d at 513. Section 49.01(2) provides two alternative methods for the State to prove intoxication. See Crouse, 441 S.W.3d at 513. These are referred to as the impairment theory (loss of use of physical or mental faculties) or the per se theory (alcohol concentration of 0.08 or more). See Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010); Crouse, 441 S.W.3d at 513.
The definition of "intoxicated" in the driving-while-intoxicated statute focuses on the state of intoxication, not on the intoxicant. See TEX. PENAL CODE ANN. § 49.01(2)(A); Ouellette v. State, 353 S.W.3d 868, 869 (Tex. Crim. App. 2011). The State is required to prove a defendant did not have the normal use of his mental or physical faculties by reason of introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of those substances, or any substance. See TEX. PENAL CODE ANN. § 49.01(2)(A); Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010); Crouse, 441 S.W.3d at 513.
Evidence of intoxication may include: (1) slurred speech; (2) bloodshot eyes; (3) the odor of alcohol on the person or on the breath; (4) an unsteady balance; and (5) a staggered gait. See Cotton v. State, 686 S.W.2d 140, 142 & n. 3 (Tex. Crim. App. 1985); see also Kirsch, 306 S.W.3d at 745 (evidence that logically raises inference of intoxication includes, among other things, stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, and any admissions concerning what, when, and how much defendant had been drinking); Crouse, 441 S.W.3d at 513 (trial court could reasonably conclude defendant did not have normal use of mental or physical faculties resulting from introduction of drug or combination of drugs based on driving facts, sobriety tests, officer's evaluation and opinion of defendant's performance and condition, defendant's admissions, substantial period of time before arrest for which defendant had no memory, defendant's use of prescription medication, and morphine dosage recently administered by hospital). A defendant's refusal to submit to the taking of a specimen of breath or blood may be introduced into evidence at the defendant's trial. See TEX. TRANSP. CODE ANN. § 724.061 (West 2011). Such evidence is relevant because it tends to show a consciousness of guilt. See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008). As a general rule, the testimony of an officer that a person is intoxicated provides sufficient evidence to establish the element of intoxication for a D.W.I. offense. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979); Watkins v. State, 741 S.W.2d 546, 549 (Tex. App.—Dallas 1987, pet. ref'd). Also, while the specific substance is not an element of the offense, it is an evidentiary matter which may be proved by circumstantial evidence. See Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004); Crouse, 441 S.W.3d at 513.
C. Application of the Law to the Facts
The record shows that the during the trial, the recording of the call to 9-1-1 was published to the jury. Although he was not a drug recognition expert, Officer Smith testified he had conducted several D.W.I. investigations during his eight years as a police office. Officer Smith stated he believed that Salim had lost the normal use of her mental and physical faculties by reason of the introduction of drugs into her system. He stated that he reached this conclusion based on the driving behavior reported by the caller to 9-1-1, his own observations of Salim's driving, the physical clues he observed Salim to exhibit, i.e., slurred speech, red and watery eyes, and lethargic movements, and she admitted that she was on several prescription medications. See Cotton, 686 S.W.2d at 142 & n.3; see also Kirsch, 306 S.W.3d at 745; Crouse, 441 S.W.3d at 513. Also, Officer Smith testified that he had difficulty understanding Salim when she spoke. Finally, the record shows that a prescription pill bottle in Salim's name was found in her purse and was removed from her vehicle. As noted above, the bottle contained five alprazolam pills, one hydrocodone pill, and one cyclobenzaprine pill. In addition, Officer Smith stated that Salim failed the walk and turn test, the alphabet test, and the counting test. The video from Officer Smith's vehicle was also published to the jury.
As a general rule, Officer Smith's testimony that Salim was intoxicated provides sufficient evidence to establish the element of intoxication. See Annis, 578 S.W.2d at 407; Watkins, 741 S.W.2d at 546. Further, the record shows that Salim refused to provide a blood specimen for testing, which tends to show a consciousness of guilt. See Bartlett, 270 S.W.3d at 153.
In her reply brief, Salim argues we should apply the ruling in Burnett v. State, 488 S.W.3d 913 (Tex. App.—Eastland 2016, pet. granted). In Burnett, the court of appeals concluded the trial court erred when it admitted evidence related to the pills found at the scene of the offense because the State failed to present any evidence as to the chemical makeup of the pills. Burnett, 488 S.W.3d at 922. That case does not apply because it addressed the admissibility of the evidence. In contrast, the case before us involves a sufficiency review of the evidence. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel, 558 U.S. 120; Lockhart, 488 U.S. at 41-42; Jackson, 443 U.S. at 319.
We conclude that a jury could reasonably conclude that Salim did not have the normal use of her mental or physical faculties resulting from the introduction of drugs or a combination of drugs based on the driving facts, the sobriety tests, Officer Smith's evaluation and opinion of Salim's performance and condition, Salim's admissions, Salim's use of prescription medication, and her refusal to provide a blood specimen for testing. See Bartlett, 270 S.W.3d at 153; Crouse, 441 S.W.3d at 513. Accordingly, we conclude that the evidence is sufficient to support Salim's conviction.
Salim's sole issue on appeal is decided against her.
III. CONCLUSION
The evidence is sufficient to support Salim's conviction.
The trial court's judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160159F.U05
JUDGMENT
On Appeal from the County Court at Law No. 6, Collin County, Texas
Trial Court Cause No. 006-86299-2014.
Opinion delivered by Justice Lang. Justices Brown and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 8th day of March, 2017.