DEBORAH KAY WHITSITT, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 17, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00199-CR
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DEBORAH KAY WHITSITT, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 1
Collin County, Texas
Trial Court Cause No. 004-86264-09
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OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice FitzGerald
        A jury convicted Deborah Kay Whitsitt of driving while intoxicated (DWI). During the punishment phase, appellant pleaded true to having one prior DWI conviction. The trial court assessed punishment at twelve months' confinement in the county jail, probated for two years, and a $1000 fine. In a single point of error, appellant contends the evidence is factually insufficient to support the jury's verdict. We affirm.
Background
 
        The jury heard testimony from Trooper Brian Coleman, a certified peace officer with the Texas Department of Public Safety. Coleman testified that on July 26, 2009, he was patrolling Highway 75 in Collin County when he saw a vehicle with a defective license plate light. Coleman intended to let the driver know of the defect, issue a warning, and send her on her way. Coleman activated his patrol car's overhead flashing lights to pull over the vehicle. The in-dash camera automatically activated at this time, producing a videotape of the traffic stop. The vehicle continued down the highway, exited at McDermott, and drove by at least four entrances where the driver could have pulled over. Coleman activated the siren. The vehicle eventually pulled into a restaurant parking lot and stopped. It was about 2:00 a.m. Coleman approached the vehicle and asked appellant, who was sitting in the driver's seat, for her driver license and insurance. When Coleman asked appellant why it took her so long to stop, appellant said she “did not know he was behind her.” Coleman testified he smelled the odor of an alcoholic beverage on appellant's breath, her reactions were slow, she “fumbled” when finding her insurance card, and said she drank two “Miller Lites” that evening. Appellant had lit a cigarette when Coleman approached her vehicle. Coleman believed appellant was trying to “mask the scent of something inside the vehicle.”
        Coleman, 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 four out of six clues on the HGN, four out of eight clues on the walk-and- turn, and three out of four clues on the one-leg stand. Coleman said he did not administer the HGN test perfectly because he skipped over the part of the test where he was supposed to look for “distinct nystagmus at maximum deviation.” However, on the two parts of the HGN that he administered, appellant exhibited a total of four clues. Appellant refused to give a breath specimen. Coleman believed appellant had lost the normal use of her mental and physical faculties due to alcohol consumption. He arrested appellant.
        Coleman testified that when he began to administer the field sobriety tests, appellant began chewing gum. He believed appellant was again trying to mask the odor on alcohol on her breath. He asked appellant to “spit it out” before she began the tests. Coleman testified that if a person fails all three of the standardized field sobriety tests, there is a “93% reliability factor” that she is intoxicated. A videotape of Coleman administering the field sobriety tests to appellant was admitted into evidence and shown to the jury. The videotape shows: appellant continued driving after Coleman activated flashing lights; Coleman activated his siren to make appellant stop the vehicle; appellant had difficulty following Coleman's instructions; Coleman demonstrated the walk-and-turn test three times for appellant; appellant swayed and used her arms for balance during the walk-and- turn test; and appellant lost her balance on the one-leg-stand test.
        Three witnesses testified on appellant's behalf. Mary Sue Mason, appellant's mother, testified appellant had osteoarthritis that affected appellant's knees and back. Mason also testified appellant has had three strokes.
        Carol Stankis testified she has known appellant since childhood, and that appellant works as an accountant and also attends classes at a community college. On July 26, 2009, Stankis and several friends met at a restaurant bar in Richardson to celebrate a friend's birthday. They all arrived separately at the bar sometime between 7:30 p.m. and 8:00 p.m. They stayed at the bar for about three hours. During that time, they ate birthday cake, talked and danced, and appellant drank two beers. Stankis is certain appellant consumed only two beers because she sat at a table with appellant for the entire time they were there. Appellant and Rhonda Cole left the bar separately at 11:00 p.m. Rhonda had said she and appellant were going to “IHOP to get something to eat.” Appellant was not intoxicated when she left, and Stankis did not smell alcohol on appellant's breath.
        Rhonda Cole testified she has been appellant's friend for twenty years. She met appellant and others at a restaurant bar in Richardson for a birthday party. Cole did not know how many drinks appellant had while at the bar, but appellant was not intoxicated when they left at about 10:30 p.m. or 11:00 p.m. Cole and appellant drove separately to an IHOP in Plano. The IHOP does not sell alcoholic drinks. They ordered food, and stayed there for a “few hours” because appellant was helping Cole with her math homework. Appellant drank coffee while at the restaurant. They both left the restaurant sometime between 1:45 a.m. to 2:00 a.m. Cole testified appellant does not carry alcohol in her car, appellant was “100% sober when she left IHOP,” and appellant behaved normally. Cole testified appellant smoked about “two cigarettes” a day, and that when appellant left the IHOP, she could have “walked a straight line and followed simple instructions.” Appellant did not testify during the guilt-innocence phase of the trial.
Applicable Law
 
        In a single point of error, appellant challenges the factual sufficiency of the evidence. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010). Therefore, we will address appellant's point under the Jackson v. Virginia standard.
        In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a 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); Brooks, No. PD-0210-09, 2010 WL 3894613, at *1. We are 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 their testimony. See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).
        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) (West 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).
Discussion
 
        Appellant contends the evidence is insufficient because Coleman did not observe any erratic driving or unsafe operating behavior, he did not properly perform the HGN test, and he never said she had bloodshot or glassy eyes. Appellant asserts other witnesses who were with her that evening testified that she was not intoxicated. Appellant argues that because she had consumed only two beers earlier in the evening, and her car was not stopped until 2:00 a.m., she was not intoxicated at the time she was stopped. The State responds that the evidence is sufficient to sustain appellant's conviction because the jury was entitled to believe Coleman's testimony over that of appellant's witnesses.
        Appellant does not dispute the fact that she was operating a motor vehicle in a public place. In her sole point of error, she challenges the sufficiency of the evidence to prove she was intoxicated at the time she drove the vehicle. The jury heard Coleman's testimony that when he first approached appellant, he smelled the odor of an alcoholic beverage on her breath and that her reactions were “slow.” When Coleman administered standardized field sobriety tests to appellant, she failed all three tests. Coleman told the jury he believed appellant had lost the normal use of her mental and physical faculties due to alcohol consumption. The jury also heard Stankis's and Cole's testimony that they were with appellant earlier in the evening, they knew appellant had only consumed two beers that evening, and appellant was not intoxicated when she left a restaurant. It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant was intoxicated at the time she was stopped by Coleman. Thus, the evidence is sufficient to support the verdict. See Brooks, No. PD-0210-09, 2010 WL 3894613, at *1. We overrule appellant's point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
100199F.U05