Velasquez, Luis v. The State of Texas--Appeal from County Court at Law No 1 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

LUIS VELASQUEZ, ) No. 08-01-00189-CR

)

Appellant, ) Appeal from

)

v. ) County Court at Law No. 1

)

THE STATE OF TEXAS, ) of El Paso County, Texas

)

Appellee. ) (TC# 20000C08560)

O P I N I O N

Luis Velasquez appeals his conviction for the offense of driving while intoxicated. Following a bench trial, the trial court found Appellant guilty and assessed his punishment at a fine of $500 and confinement for 180 days. The court suspended the sentence and placed Appellant on community supervision for a term of one year. We affirm.

FACTUAL SUMMARY

Naomi Villa is employed by United States Customs. Shortly before 1 a.m. on June 4, 2000, Villa was working at the Paso Del Norte Bridge. Her duties required her to inspect vehicles which were coming into the United States and to question the vehicle occupants regarding citizenship and whether they had contraband or merchandise they were bringing in to the country from Mexico. Appellant, the sole occupant of the vehicle, drove a blue truck up to the primary booth where Villa was working. Villa asked Appellant whether he was a citizen, and he responded by immediately becoming argumentative and complaining about the long lines. Appellant=s speech was slurred and Villa smelled an odor of alcohol in the vehicle. When she saw an empty bottle of Bacardi on the passenger seat, Villa asked Appellant whether he had been drinking. Appellant replied that he had drunk the whole bottle while waiting to cross the bridge. Villa then asked Appellant to turn off his vehicle=s engine so she could inspect the vehicle. Appellant argued that Villa should give him a break and let him proceed on his way.

An El Paso police officer, who was working on the bridge in the secondary inspection area, walked over to stand behind Villa when he saw Appellant being argumentative. When Appellant saw the officer, he got out of the truck, and would not get back inside. He also refused to open the hood or otherwise cooperate with Villa=s inspection. Someone else had to drive the vehicle over to the secondary inspection area and an officer escorted Appellant to the same area. As a result of her job, Villa comes into contact with intoxicated persons on a daily basis and she is familiar with the signs of intoxication. Based upon her observations of Appellant, she formed the opinion that he was intoxicated when he drove up to the inspection booth.

Ernesto Saucedo, an El Paso police officer, was working on the Paso Del Norte bridge in the secondary inspection area. His special assignment duties involved checking for underage drinkers and curfew violations. Saucedo=s training as a police officer included the identification of intoxicated persons. When Saucedo saw Appellant being argumentative with Villa, he walked over and stood next to her in order to ensure her safety. Saucedo saw Appellant stagger as he exited the truck. Villa informed Saucedo that she believed Appellant was intoxicated and she asked for Saucedo=s assistance. He detained Appellant and called for a DWI task force to conduct a field sobriety test. Saucedo could smell a strong odor of alcohol on Appellant=s breath and he noticed Appellant Awasn=t aware of what was going on.@ After the DWI task force arrived, Saucedo had no further involvement in the case.

Jose Antonio Enriquez, an El Paso police officer assigned to the DWI task force, was dispatched to the Paso Del Norte Bridge to investigate a possible drunk driver. After being briefed by Saucedo and Villa, Enriquez talked to Appellant who insisted that he had not been driving the vehicle. Enriquez then conducted the horizontal gaze nystagmus test and had Appellant perform some field sobriety tests. Based on the results of these tests and his own observations, Enriquez concluded that Appellant was intoxicated. Consequently, he arrested Appellant and transported him to Mission Valley Regional Command. Appellant voluntarily submitted to an intoxilyzer analysis of his breath which showed his breath alcohol concentration as 0.162 and 0.163. The trial court found Appellant guilty of driving while intoxicated.

SUFFICIENCY OF THE EVIDENCE

In Point of Error No. One, Appellant challenges the legal and factual sufficiency of the evidence to show that the alcohol concentration in his blood exceeded the legal limit of 0.08. More specifically, he argues that the State failed to offer any evidence of retrograde extrapolation from the time of the breath sample back to the time Appellant drove the vehicle.[1]

Standards of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, 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. Jackson v. Virginia, 443 U.S. 307, 318 19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

When conducting a review of the factual sufficiency of the evidence, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. Clewisv. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App. El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder=s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.

Elements of the Offense

A person commits an offense if he is intoxicated while operating a motor vehicle in a public place. Tex.Pen.Code Ann. ' 49.04(a)(Vernon Supp. 2002). Under the definition provided in Section 49.01(2), Aintoxicated@ means:

(A) 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

(B) having an alcohol concentration of 0.08 or more.

Tex.Pen.Code Ann. ' 49.01(2). Given this definition, the Penal Code provides two alternative means of committing the offense of driving while intoxicated. Ex parte Crenshaw, 25 S.W.3d 761, 766 (Tex.App. Houston [1st Dist.] 2000, pet. ref=d); Kilgo v. State, 880 S.W.2d 828, 829 (Tex.App. Dallas 1994, pet. ref=d). Harris v. State, 866 S.W.2d 316, 324 (Tex.App. San Antonio 1993, pet. ref=d). Where the charging instrument alleges both means of committing driving while intoxicated, as in this case, a conviction under a general verdict is valid if either theory is supported by the evidence. Chauncey v. State, 837 S.W.2d 179, 182 (Tex.App. -El Paso 1992), aff=d, 877 S.W.2d 305 (Tex.Crim.App. 1994); Sims v. State, 735 S.W.2d 913, 915 (Tex.App. Dallas 1987, pet. ref=d).

Appellant does not challenge the legal or factual sufficiency of the evidence supporting the trial court=s implied determination that he had lost the normal use of his mental or physical faculties. The evidence showed that Appellant failed the field sobriety tests and he demonstrated nystagmus in both eyes which is indicative of intoxication. Further, he smelled of alcohol, had slurred speech, staggered when he walked, was belligerent, and appeared confused. Additionally, the trial court had before it the opinions offered by Villa and the police officers, all of whom were trained to recognize an intoxicated person, that Appellant was intoxicated. This evidence is both legally and factually sufficient to prove intoxication under the definition found in Section 49.01(2)(A). See Reagan v. State, 968 S.W.2d 571, 573 (Tex.App. -Texarkana 1998, pet. ref=d)(evidence legally and factually sufficient to show defendant had lost normal use of mental or physical faculties where defendant had slurred speech, red eyes, odor of alcohol, balance difficulties, and inability to complete horizontal gaze nystagmus test). Therefore, we need not address whether the evidence is also legally and factually sufficient to show that his blood alcohol concentration exceeded the legal limit. Point of Error No. One is overruled.

LEGALITY OF THE STOP

In Point of Error No. Two, Appellant asserts that the trial court erred in convicting Appellant because the investigatory stop was made without reasonable suspicion. An illegal arrest or detention is not grounds for reversal unless fruits of the illegality are admitted over objection at trial. Hamm v. State, 709 S.W.2d 14, 14 (Tex.App. -Corpus Christi 1986, no pet.). As correctly pointed out by the State, Appellant did not file a motion to suppress evidence prior to trial nor did he timely object at trial to the admission of any evidence on this ground. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion, and the trial court ruled on the request, objection, or motion. Tex.R.App.P. 33.1(a)(1) and (2); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999); Richardson v. State, 981 S.W.2d 453, 455 (Tex.App. -El Paso 1998, pet. ref=d). Even constitutional error may be waived by failure to make an appropriate objection. See Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990). While Appellant moved for a directed verdict on the ground that there was no probable cause to arrest in that he had not violated any traffic laws, he did not object to the admission of any evidence. By failing to object to the introduction of evidence seized as a result of the allegedly illegal arrest, Appellant has preserved nothing for review. See Hamm, 709 S.W.2d at 15 (rejecting complaint that the trial court erred in failing to grant defendant=s motion for instructed verdict because there was no probable cause for law enforcement officers to stop, question, or apprehend him). Point of Error No. Two is overruled. Having overruled both points of error, we affirm the judgment of the trial court.

August 22, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Extrapolation or retrograde extrapolation evidence explains the correlation between the breath test results and the level of intoxication at the time of the arrest in a given case. O=Neal v. State, 999 S.W.2d 826, 832 (Tex.App.--Tyler 1999, no pet.), citing Martin v. Dept. of Public Safety, 964 S.W.2d 772, 776 (Tex.App. Austin 1998, no pet.); see Mata v. State, 46 S.W.3d 902, 908-09 (Tex.Crim.App. 2001). Although it is unnecessary to review the sufficiency of the evidence related to this means of proving intoxication, we note that the State is not required to offer evidence of extrapolation in order to sustain a conviction for DWI. See Forte v. State 707 S.W.2d 89, 95 (Tex.Crim.App. 1986); Price v. State, 59 S.W.3d 297, 300 (Tex.App.--Fort Worth 2001, pet. ref=d); O=Neal, 999 S.W.2d at 830; Owen v. State, 905 S.W.2d 434, 438-39 (Tex.App.--Waco 1995, pet. ref=d).