TERRY DON DALE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as MODIFIED; Opinion Filed July 28, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00188-CR
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TERRY DON DALE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law
Rockwall County, Texas
Trial Court Cause No. CR07-1794
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OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Lang
        A jury convicted Terry Don Dale of driving while intoxicated. The trial court assessed punishment at 120 days' confinement in the county jail, probated for two years, and an $800 fine. In a single issue, appellant contends the trial court erred in denying his motion for directed verdict. We affirm the trial court's judgment as modified.
        Appellant argues the trial court erred in failing to grant his motion for directed verdict because the evidence was insufficient to show he was driving the vehicle or was intoxicated while driving. The State responds that the trial court did not err in denying appellant's motion for directed verdict because the evidence was sufficient to show appellant was intoxicated while driving the vehicle.         The standard of review applicable to a motion for directed verdict is the same as that used in reviewing the legal sufficiency of the evidence. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). We examine the evidence in the light most favorable to the judgment and 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, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        There was evidence presented that Texas Department of Public Safety trooper Jeff Berry responded to the scene of a one-vehicle accident on FM 550 near McLendon-Chisholm at approximately 10:00 p.m. on July 4, 2007. Berry found that a motorcycle had struck the guardrail and was pinned under it. When Berry questioned appellant, who was at the accident scene, Berry smelled the odor of an alcoholic beverage on appellant's breath, and noticed appellant's eyes were bloodshot and watery. Appellant said, “[He] wasn't familiar with the area and didn't see the curve.” Berry interpreted appellant's statement to mean appellant had been operating the motorcycle at the time of the accident. Berry later determined appellant was the registered owner of the motorcycle. While at the scene, Berry, who is certified to give standardized field sobriety tests, administered several tests to appellant, including the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand tests. Appellant exhibited six out of six clues on the HGN, four out of eight clues on the walk-and-turn, and four out of four clues on the one-leg stand. Berry believed appellant had lost the normal use of his mental and physical faculties due to alcohol consumption. He arrested appellant and transported him to the jail. A DVD made from Berry's in-car camera was played to the jury. The DVD showed that during the field sobriety tests, appellant swayed back and forth, did not perform the one-leg stand and walk-and-turn tests without losing his balance, leaned against Berry's patrol car while waiting for Berry to reach into the patrol car for something, and refused to give a breath sample.
        Viewing the evidence under the proper standard, we conclude it is legally sufficient to show appellant was intoxicated while driving a motor vehicle. See Lane, 151 S.W.3d at 191-92. Accordingly, the trial court did not err in denying appellant's motion for directed verdict on this basis. See McDuff, 939 S.W.2d at 613. We resolve appellant's sole issue against him.
        We note the written judgment recites appellant was placed on community supervision for “eighteen (18) months.” However, the trial court orally pronounced the sentence as “120 days in jail, probated for two years with an $800 fine.” Thus, the written judgment is incorrect. We modify the trial court's judgment to show appellant was placed on community supervision for two years. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). As modified, the trial court's judgment is affirmed.
 
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080188F.U05