Troy Dewayne Bell v. The State of Texas--Appeal from Crim Dist Ct 4 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-97-062-CR

TROY DEWAYNE BELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 4

Dallas County, Texas

Trial Court # F95-43580-K

O P I N I O N

Appellant appeals his conviction for driving while intoxicated, third offense, for which he was sentenced to eight years in the Institutional Division of the Texas Department of Criminal Justice.

Appellant was convicted after a trial before the court and was assessed a sentence of eight years in prison and a fine of $500.

He appeals on one point of error: The evidence was factually insufficient to show that Appellant was intoxicated.

This court, in an opinion filed February 18, 1998, sustained Appellant s point of error and reversed and remanded the case for a new trial. The Court of Criminal Appeals granted a petition for discretionary review, vacated the judgment of this court, and on November 18, 1998, remanded the case to this court to perform a proper factual sufficiency review under Clewis, taking into account our holding in Cain.

Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997) states:

We delineated the proper standard of review for the courts of appeals to apply in reviewing factual sufficiency grounds in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). In reviewing factual sufficiency of the elements of the offense, the court of appeals views all the evidence without the prism of in the light most favorable to the prosecution and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis at 129. In Clewis this court discussed three major principles to guide courts of appeals when conducting a factual sufficiency review.

First is the principle of deference to jury findings. . . . In Clewis we explained that appellate courts should only exercise their fact jurisdiction to prevent a manifestly unjust result; those courts are not free to re-weigh the evidence and set aside a jury verdict merely because the judges feel that a different result is more reasonable. Clewis at 135 . . . . A court of appeals may not reverse a jury s decision simply because it disagrees with the result; the appellate court must defer to jury findings and may find the evidence factually insufficient only where necessary to prevent manifest injustice.

Second, courts of appeals must support a finding of factual insufficiency by providing a detailed explanation of that finding so that this court can ensure that the appellate court accorded the proper deference to the jury finding. Clewis at 135. . . . We explained that where a court of appeals reverses a lower court decision on factual sufficiency grounds, it should detail the evidence relevant to the issue in consideration and clearly state why the jury s finding is factually insufficient . . . as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias. Further those courts, in their opinions, should state in what regard the contrary evidence outweighs the evidence in support of the verdict. Clewis at 135.

Third, the standard of review for factual insufficiency states that courts of appeals must review all the evidence. This differs from a legal sufficiency review where the court of appeals considers only the evidence that supports the verdict. The court of appeals must consider the evidence as a whole, not viewing it in the light most favorable to either party.

Clewis further states: In consideration of a factual sufficiency review, an appellate court reviews the factfinder s weighing of the evidence and is authorized to disagree with the factfinder s determination. This review, however, must be appropriately deferential so as to avoid an appellate court substituting its judgment for that of the jury. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

The court of appeals avoids substituting its judgment for that of the factfinder by remanding the cause for a new trial. Id. at 133-134.

Officer Denk testified that about 2:00 a.m. on February 2, 1995, he observed Appellant speeding on Thornton Freeway; that he followed Appellant; that Appellant exited on East 8th Street; that Appellant pulled up to a red light, stopped and then ran through the light. The officer stopped Appellant and had him exit his vehicle. Officer Denk testified he could smell alcohol on Appellant s breath and that he was unsteady on his feet; that in his opinion Appellant did not have normal use of his physical and mental faculties due to the introduction of alcoholic beverage into his system; that Appellant was intoxicated; and that he arrested him.

Officer Denk did not give Appellant field-sobriety tests because he felt it was unnecessary, but transported him to the county jail where he was video-taped.

Appellant s girlfriend, Rosalinda, testified that Appellant drank two beers the evening of February 1, 1995; that he had his last beer about 9:00 p.m.; that he left home about 2:00 a.m. to pick up a cousin at a Dallas club.

Appellant also testified he left the house about 2:00 a.m. to pick up his cousin who had called him for a ride from a night club. He testified that he had one beer with his evening meal and two 12-ounce cans of beers afterward; that his cousin had left when he arrived at the club so he started back home. He testified that he stopped at the red light and made a right turn after stopping; that Officer Denk stopped him, asked for his driver s license, waited ten minutes for a backup, and then asked him to step out of his car. He stepped from his car and was then arrested for DWI. He said no field-sobriety tests were given; that he gave the officer Rosalinda s phone number; that he was not intoxicated at any point during the evening; and that he was transported to the police station and was video-taped.

The State introduced the video-tape into evidence. It was made 50 minutes after Appellant was stopped by the officer. This court has viewed the video. It fails to demonstrate that Appellant was intoxicated or was mentally or physically impaired. On the tape Appellant was cooperative with the officers, spoke clearly and followed directions. He did not stumble or appear to be disoriented in any way. He recited the alphabet without error. The tape clearly shows that Appellant was not intoxicated, which contradicted the officer s conclusion. Therefore, the conclusion of the trier of facts to the contrary was in error and cannot withstand the application of a factual sufficiency analysis.

A detailed analysis of all the evidence, including the video-tape, puts into question the reliability of the officer s opinion and the conclusion of the trier of facts. The tape begins at 3:12 a.m. on February 2, 1995, at the Lew Sterrett jail in Dallas. At 3:13 a.m. Appellant speaks his first and last name and spells his last name exactly as directed. At the same time Appellant receives a copy of the DWI statutory warning. He turns around and goes to footprint number two as directed. At 3:14 a.m. the DWI statutory warning is read to him. He stands normally while the warning is being read to him. At 3:16 a.m. Appellant was requested to give a sample of his breath and declines to do so. He was not offered and did not decline a blood test as was stated by the Court of Criminal Appeals in its opinion.

At 3:17 a.m. Appellant gets the six flags card out of its wall holder as directed, and gets it without any problem. He reads the six flags card accurately and puts it back in the wall holder also without any problem. At 3:18 a.m. Appellant is requested to profile, tilt his head, close his eyes, and estimate the passing of 30 seconds. He estimates the time exactly. At 3:19 a.m. he is instructed to face the camera and repeat the procedure of tilting his head, closing his eyes, estimating the passage of 30 seconds, and again he estimated the 30 seconds precisely.

At 3:19 a.m. Appellant is directed to stand on footprint number three and count backward from 38 to 22. He counts down to 22 and then asks, What did you want me to stop at? The operator replies, I asked you to count backward from 38, stopping at 22. Appellant then starts again at 38 and stops at 22. At 3:21 a.m. Appellant is read his 38.22 rights and says he understands them. He declines to waive his rights. At 3:22 a.m. the tape concludes.

The video-tape clearly shows that Appellant was not intoxicated. The officer only thought he was intoxicated. He did not confirm his suspicions by mental and physical field-sobriety tests. The video-tape made some twenty minutes later contradicted the officer s suspicion. One picture is equal to a thousand words.

Other evidence refuted the officer s subjective opinion. Appellant s girlfriend, Rosalinda, testified that Appellant drank only two beers that evening; that he was not intoxicated when he left about 2:00 to pick up his cousin from a club. Appellant s testimony was that he had only three beers that evening. He said the red light was flashing when he stopped and then turned right. He also denied being intoxicated and in his view he had the normal use of his mental and physical faculties.

We hold the State failed to prove beyond a reasonable doubt that Appellant was intoxicated. The video-tape and other contrary evidence did not confirm the officer s subjective opinion and it contradicts the trial court s finding.

We sustain Appellant s point of error and hold the evidence factually insufficient to show Appellant was intoxicated; that the evidence is contrary to the conviction, outweighs the evidence in support of the verdict, and that the verdict is clearly wrong and unjust. For Appellant to serve eight years when he was not intoxicated would be manifest injustice.

The judgment is reversed and the cause remanded for a new trial.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance, and

Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed July 7, 1999

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