Steven J. Perez v. The State of Texas--Appeal from County Crim Ct No 9 of Tarrant County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00186-CR

Steven J. Perez,

Appellant

v.

The State of Texas,

Appellee

From the County Criminal Court No. 9

Tarrant County, Texas

Trial Court No. 0955181

MEMORANDUM Opinion

  Appellant Steven Perez appeals his conviction for Driving While Intoxicated. We will affirm.

Background

On October 25, 2004, near midnight, Officer M.E. Byrd of the Fort Worth Police Department observed an automobile turn without signaling or using the merge lane. As there had been several burglaries in the area, Byrd followed the car without turning on his emergency lights to investigate. Almost immediately, the driver pulled over to the side of the road and exited the vehicle.

Before Byrd had an opportunity to run the plates on the car, he saw Perez walking towards his car. He noted that Perez shifted forward on his toes then back on his heels as he walked, and had to control his body weight as it moved in a counterclockwise motion. Perez leaned into the passenger-side window of Bryd s patrol car and asked, Is there a problem, officer? Perez smelled of alcohol mixed with peppermint, his speech was slurred, and his eyes were bloodshot and heavy. When asked if he had been drinking, Perez responded that he had a few.

Byrd administered a series of field sobriety tests including the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand test. Byrd arrested Perez after determining that he had failed the three tests. Officer Phillip Whitehead transported Perez to jail while Byrd searched Perez s vehicle. Byrd found a cooler behind the driver s seat, which contained four unopened bottles of an alcoholic beverage.

Approximately one hour and fifteen minutes after pulling over his car, Perez submitted to an intoxilyzer test. The results indicated that his body s alcohol concentration was 0.169 and 0.170.

Perez was convicted of D.W.I., fined $750, and sentenced to 120 days in the Tarrant County Jail. His sentence was probated for a period of two years. In his sole issue, he complains that the evidence was legally insufficient to support the conviction.

Legal Sufficiency

When reviewing a challenge to the legal sufficiency of the evidence, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); 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). Inconsistencies in the evidence are resolved in favor of the verdict. Curry, 30 S.W.3d at 406; Matson, 819 S.W.2d at 843.

A person commits the offense of Driving While Intoxicated if he is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. 49.04(a) (Vernon 2003). Intoxicated is defined as: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body; or (B) having an alcohol concentration of 0.08 or more. Tex. Pen. Code Ann. 49.01(2) (Vernon 2003).

At trial, Byrd testified that he had no doubt that Perez had lost the normal use of his mental and physical faculties due to drinking alcohol. He stated this opinion was based on Perez s failure to use his turn signal or the merge lane, the signs of intoxication he exhibited as he walked to the police car, his admission that he had been drinking, and the results of three field sobriety tests.

He stated that Perez exhibited all six possible clues of intoxication on the HGN test. Perez failed the walk-and-turn test by failing to maintain the starting position, trying to start the test before the instructions for the test had been provided, losing his balance and staggering backward when he tried to turn, and losing his balance when he returned to the starting position. He failed the one-leg-stand test by beginning the test before Byrd provided all the instructions, being unable to maintain his balance, and placing his foot down more than three times. The jury viewed the videotape from Byrd s patrol car which showed Perez taking the field sobriety tests. Additionally, Byrd testified that Perez s speech was slurred, his eyes were bloodshot and heavy, and he smelled of alcohol.

Whitehead also testified that Perez smelled of alcohol. He further testified that he administered the intoxilyzer test, and Perez s results showed an alcohol concentration of 0.169 and 0.170, over the legal limit of 0.08. Whitehead stated that he had no doubt that Perez was intoxicated although he was able to follow directions in the test room and did not stumble when asked to walk a straight line.[1]

In viewing the evidence in the light most favorable to the verdict, we cannot say that a rational trier of fact could not have found guilt beyond a reasonable doubt or that the jury was not rationally justified in finding guilt. See Curry, 30 S.W.3d at 406. Accordingly, we find that the evidence is legally sufficient to support a finding that Perez was intoxicated while operating a motor vehicle in a public place.

Conclusion

Having overruled Perez s sole issue, we affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed May 16, 2007

Do not publish

[CR25]

[1] The State argues that the videotape of Perez taking the intoxilyzer test shows that Perez did not follow directions, swayed, and placed his hand on the wall to steady himself.