No. 05-03-00108-CR.
Opinion Issued August 25, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
Appeal from the County Criminal Court of Appeals No. 2, Dallas County, Texas, Trial Court Cause No. MB02-52941-M. Affirmed.
Before Chief Justice THOMAS AND Justices WRIGHT and HADDEN.
The Honorable Roby Hadden, Former Judge, Twelfth Court of Appeals, Tyler, Texas, sitting by assignment.
Opinion By Justice HADDEN.
A jury convicted appellant Choice Alford Smith, Jr. of driving while intoxicated. The trial court assessed punishment at 180 days confinement, probated for two years, and an $800 fine. In one issue, appellant asserts the evidence is factually insufficient to support the verdict. We affirm.
Background
On May 22, 2002, at approximately 6:30 p.m., appellant drove his Suburban into the front yard of Thomas Mazeika ("Mazeika") and crashed into two trees. Mazeika witnessed the accident from the front porch of his house. He ran to the vehicle to make sure appellant was not hurt. Appellant was able to exit the vehicle and stated he was fine. When appellant got out of his vehicle, an unopened, cold can of beer rolled out onto the ground. Appellant asked Mazeika to dispose of the can of beer for appellant, but Mazeika refused. Mazeika observed that appellant was swaying, smelled of alcohol, and had red, watery eyes. When Mazeika asked if appellant had been drinking, appellant responded that he had had one or two beers, but a few minutes later said he had five or six beers. Mazeika also testified that his neighbor found a brown paper bag containing empty liquor bottles on the front passenger side floorboard of appellant's car and a cooler full of beer in the back seat of the vehicle. Paul Walukas ("Walukas"), a Dallas fireman and paramedic, arrived at the accident scene. Appellant refused medical treatment, and Walukas did not remain because appellant did not have any signs of significant injury. Walukas testified that he smelled the odor of an alcoholic beverage on appellant's breath. Dallas police sergeant John Madison ("Madison") arrived next at the scene. Madison believed appellant was intoxicated and administered several field sobriety tests. Appellant had to hold onto Madison's squad car for balance when appellant walked to the rear of the vehicle to perform the tests. Madison first attempted to administer the horizontal gaze nystagmus (HGN) test, but could not complete the test because appellant would not follow the instructions and keep his head still. Madison testified that appellant was unable to properly recite the alphabet, count backwards, or successfully perform the one-leg-stand and walk and turn tests. Based on the tests, Madison believed appellant was intoxicated and did not have the normal use of his mental or physical faculties. Madison arrested appellant for driving while intoxicated. At the police station, a videotape was made showing appellant's performance on several more field sobriety tests. Appellant's friend Sharon Palmer testified that she was with appellant about thirty minutes before the accident. Palmer was discussing an insurance policy with appellant during the time she was with appellant. Appellant did not appear to be intoxicated during the time Palmer was with him, nor did Palmer smell an odor of alcoholic beverage on his breath. Applicable Law
In conducting a factual sufficiency review, we neutrally analyze all of the evidence without the prism of "in the light most favorable to the prosecution" to determine whether the proof of guilt is so obviously weak as to undermine confidence in the verdict or the proof of guilt, though adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In conducting this review, we must be appropriately deferential to the jury's role as fact finder. Thompson v. State, 93 S.W.3d 16, 21 (Tex.Crim.App. 2001), petition for cert. filed, ___ U.S.L.W. ___ (U.S. June 13, 2003) (No. 03-5274). We will reverse only if we determine the proof of guilt is so weak or the contrary proof so overwhelming that it renders the guilty verdict clearly wrong and unjust. See id. A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). To prove appellant was intoxicated, the State must show he did not have the normal use of his mental or physical faculties by reason of introduction of alcohol or other substances. Id. § 49.01(2)(A). Analysis
Appellant asserts the verdict is contrary to the overwhelming weight of evidence and is clearly wrong because: (1) appellant's ability to perform the field sobriety tests was compromised by the effects of the accident; (2) the paramedic who tended to appellant after the accident did not testify that appellant appeared intoxicated; (3) Palmer testified appellant did not appear intoxicated when she saw him approximately thirty minutes before the accident; and (4) the videotape shows appellant was not mentally or physically impaired. There is conflicting evidence as to appellant's intoxication. Mazeika, Walukas, and Madison each testified that appellant had the odor of alcoholic beverage on his breath. Madison testified that appellant was unable to perform the field sobriety tests and that it was Madison's opinion appellant was intoxicated. Appellant asserts that his inability to complete the tests was affected by the violent crash of his vehicle into the trees. However, there was no testimony that appellant was shaken or traumatized or physically or mentally impaired by the accident, or that the accident had any effect on appellant's performance of the field sobriety tests. See Thomas v. State, 990 S.W.2d 858, 860 (Tex.App.-Dallas 1999, no pet.) (evidence factually sufficient to support finding of intoxication where there was no evidence defendant physically, mentally, or verbally impaired as result of accident or that accident had any effect on field sobriety tests); Sneed v. State, 964 S.W.2d 764, 766 (Tex.App.-Texarkana 1998, no pet.) (evidence legally and factually sufficient to support DWI conviction where no evidence any injury caused by accident would mimic signs of intoxication, and there was evidence of accident itself, slurred speech, red eyes, odor of alcohol, and balance difficulties). Appellant also points out that Palmer visited with him for fifteen or twenty minutes, and when she left appellant just before 6:00 p.m., he did not appear intoxicated. However, the jury was the sole judge of the credibility of the witnesses and was entitled to reject all or part of Palmer's testimony. See Goodman v. State, 66 S.W.3d 283, 295 (Tex.Crim.App. 2001); Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). The jury was free to place more weight on the testimony of Madison, a trained police officer, than the testimony of a layperson whose opinion was based on a casual encounter. See Scott v. State, 914 S.W.2d 628, 630 (Tex.App.-Texarkana 1995, no pet.) Finally, appellant asserts the videotape taken after his arrest does not show he was intoxicated. The videotape was made about an hour and a half after the accident and about an hour after Madison administered the field sobriety tests. Madison acknowledged that appellant's performance on the tests at the police station was not as bad as his performance at the accident scene. However, Madison testified that the same tests were not administered at both locations and the passage of time allowed appellant's body to metabolize some of the alcohol, lowering the blood alcohol level. Madison did not waiver in his testimony that at the time of the accident, appellant was intoxicated to the extent he had lost the normal use of his mental and physical faculties. See Yates v. State, 1 S.W.3d 277, 280 (Tex.App.-Fort Worth 1999, pet. ref'd) (even if defendant appeared sober on videotape made one-and-a-half hours after arrest for DWI, evidence, including defendant's erratic driving and officer's conclusion that defendant was intoxicated, was factually sufficient to support conviction). Conclusion
Having reviewed all of the evidence under the appropriate standards, we conclude the proof of guilt is not so weak nor the contrary proof so overwhelming as to render the verdict clearly wrong and manifestly unjust. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.