JESUS ALBERTO FUNES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 12, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01047-CR
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JESUS ALBERTO FUNES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MB06-38881-K
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OPINION
Before Chief Justice Wright and Justices Francis and Fillmore
Opinion By Chief Justice Wright
        Jesus Alberto Funes waived a jury and pleaded not guilty to driving while intoxicated (DWI). After finding appellant guilty, the trial court assessed punishment at ninety days' confinement in the county jail, probated for twelve months, and a $500 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).
        In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the fact- finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        To support appellant's conviction for DWI, the State was required to prove beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). “Intoxicated” means 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, or a combination of two or more of those substances or any other substance into the body. See id. § 49.01(2).
Evidence Presented
 
        On April 23, 2006, Irving Police Officer Kevin Burkleo was patrolling in the area of Grauwyler and West Irving Boulevard. At 2:00 a.m., he drove into a parking lot to check the bars because they were closing at that time. Burkleo testified he saw a Honda Civic being driven erratically through the lot at a high rate of speed. The vehicle was weaving in and around cars without its headlights on. The vehicle passed Burkleo as it sped through the lot. Burkleo believed the driver noticed that he was looking at him because the vehicle pulled out of the lot and went on the south service road going east. Burkleo was caught in traffic as he tried to turn around and pursue the vehicle. Burkleo lost sight of the vehicle for approximately two minutes, then realized the driver must have pulled into another parking lot. Burkleo circled back and saw the vehicle “hiding” between another car and a building in a parking lot that was two lots over from where he had initially seen it. As Burkleo approached, appellant was standing outside of the vehicle on the driver's side. There was a woman in the front passenger seat and a man in the back seat of the vehicle. Burkleo asked appellant why he “took off at such a high rate of speed.” Appellant initially said he was not driving the vehicle, then he said that his wife had to go to the bathroom, so he was in a hurry. Burkleo smelled a strong odor of an alcoholic beverage on appellant's breath, and observed that appellant had bloodshot eyes, slurred speech, and swayed back and forth. When Burkleo asked appellant how much he had to drink, appellant initially said he had consumed three beers. A few minutes later, appellant said he had consumed four beers.
        Burkleo, who is certified to give standardized field sobriety tests, administered the tests to appellant, including the horizontal gaze nystagmus (HGN), the walk-and-turn, and one-leg stand tests. Appellant exhibited six out of six clues on the HGN, eight out of eight clues on the walk-and- turn, and two out of four clues on the one-leg stand. Burkleo also administered a finger-count test, asking appellant to take his thumb and touch each finger while counting one through four and then counting backwards four to one. Appellant was unable to follow the directions, used two hands to count, and was unable to touch his fingers correctly. Burkleo believed appellant had lost the normal use of his mental and physical faculties due to alcohol consumption. He arrested appellant. The passengers were also intoxicated; another officer at the scene gave them a ride to their homes. A videotape from the patrol car's in-dash camera was admitted into evidence and play for the judge.         Burkleo testified he spoke in English and Spanish to appellant, and appellant verbally responded in both English and Spanish. Although not a fluent Spanish-speaker, Burkleo testified he speaks Spanish well enough to conduct traffic stops, investigate DWIs, and be understood by Spanish-speakers. Appellant did not testify or present any evidence at the trial.
Discussion
 
        Appellant now contends the evidence is legally and factually insufficient because the arresting officer never saw him driving a motor vehicle, and appellant never admitted he was driving the vehicle. The State responds that the evidence is legally and factually sufficient to support appellant's conviction for DWI.
        The trial judge heard Buckloe's testimony that appellant admitted he was driving the vehicle, stating he was in a hurry because his wife had to go to the bathroom. When Buckloe approached the parked vehicle, appellant was standing outside at the driver's side door, while his passengers were sitting in the front passenger seat and the back seat of the vehicle. As the fact-finder in this case, the trial judge was free to accept or reject any and all of the evidence presented by either side. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
        Citing Threet v. State, 250 S.W.2d 200 (Tex. Crim. App. 1952), appellant argues that even if this court finds he made statements indicating he drove the vehicle, a confession of an accused alone cannot establish the “corpus delicti” that he was operating the motor vehicle. Appellant asserts that no corroborating evidence exists that shows he was driving the vehicle. In Threet, a highway patrolman was called to an accident scene where he found an overturned pickup truck but no driver. The patrolman later found the accused in a hospital. The accused admitted to the patrolman that he was the driver of the truck. Threet, 250 S.W.2d at 200. The patrolman testified that he believed the accused to be drunk at the time of the confession. Id. The Court of Criminal Appeals found that the accused's confession could not support the corpus delicti of DWI. Id.
        This case is distinguishable from Threet. Here, appellant was present at the scene, and Burkleo had an opportunity to personally observe him. Appellant admitted at the scene that he had consumed four beers and that he was driving the vehicle fast. Appellant fled from the initial parking lot and attempted to conceal his vehicle in another parking lot. Finally, appellant was standing by the driver's side door when Burkleo approached the vehicle; his two passengers were sitting in the front passenger seat and the back seat of the vehicle. We conclude there is ample corroboration of appellant's confession that he was the driver. See Sandoval v. State, 422 S.W.2d 458, 459 (Tex. Crim. App. 1968) (evidence that defendant who was at scene, talked to officer, and was registered owner of vehicle involved in collision corroborated defendant's confession that he was driving and had an accident).
        Viewing all the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's DWI conviction. We overrule appellant's two points of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          CHIEF JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081047F.U05