David Patrick O'Connor v. The State of Texas--Appeal from County Criminal Court No. 7 of Dallas County

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 
DAVID PATRICK O'CONNER,

Appellant,

 

v.

 

THE STATE OF TEXAS,

 

Appellee.

 

 

 

 

No. 08-03-00035-CR

 

Appeal from the

 

County Criminal Court

 

of Dallas County, Texas

 

(TC# MB01-22438-H)

 
M E M O R AN D U M O P I N I O N

This is an appeal from a conviction for the offense of driving while intoxicated. Appellant pleaded not guilty to the court. Upon finding Appellant guilty, the court assessed punishment at two (2) years' probation and a fine of $600. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

At trial, B.W. Thornton, a trooper with the Texas Department of Public Safety, testified that on October 14, 2001 at approximately 12:20 a.m. he observed a black Infinity vehicle speeding on the North Dallas Turnpike. The vehicle was traveling seventy-two miles per hour on a highway where the posted speed limit was fifty-five miles per hour. After Trooper Thornton stopped the vehicle, he approached and smelled the strong odor of an alcoholic beverage. Appellant was driving the vehicle. When asked, he stated that he was speeding in response to an emergency, but he retracted that statement. It appeared to Thornton that Appellant was trying not to speak as his speech was slurred and his eyes were bloodshot. It also appeared that his clothing had been soiled by spilling an alcoholic beverage. His breath smelled of alcohol. When Appellant was outside the vehicle, his balance was unsteady. He refused to perform any field sobriety tests. There was a can of beer in the map pocket behind the driver's seat and the backseat and floorboard carpet had liquid on it. Thornton informed Appellant that he was in violation of the open container law. Appellant admitted to Thornton that he had consumed three glasses of wine. Thornton testified that in his opinion Appellant was intoxicated and had lost the normal use of his mental and physical faculties by introducing alcohol into his system. Appellant asked to speak to an attorney.

Appellant's wife was in the vehicle sitting in the front passenger seat when Trooper Thornton stopped them. At the police station, she was released to her attorney. Appellant was taken down to the intoxilizer room where he sat still and refused to do any tests.

Appellant presented the testimony of Joseph Thomas Wunderlick who was a long term friend of Appellant. He was attending a wedding reception on the evening prior to Appellant's detention. Appellant and his wife were also in attendance. Wunderlick testified that Appellant had a good reputation for being truthful and law-abiding and both he and his wife were responsible drinkers. Appellant was drinking wine at the reception but Wunderlick did not know how much he had to drink. The witness stated that since Appellant's marriage, he had not seen Appellant in an intoxicated state.

The defense also utilized the testimony of Cristin Chicorelli, a lawyer and former prosecutor. She had known Appellant since high school. On the night of the incident, she received a call from Appellant's wife concerning his detention. The witness testified that she had seen Appellant in an intoxicated state on prior occasions. She stated that Appellant did not seem to be intoxicated at the scene of the arrest.

Appellant testified in his own behalf. He stated that he and his wife had attended a wedding reception on October 14. His wife took a beer and a styrofoam cup from their house and drank some of it on the way to the wedding and left the beer and the cup in the car. At the reception, he sat with Tom Wunderlick for most of the reception. He ate salad, chicken fingers and stuffed mushrooms. He had three glasses of wine. On the way home he was stopped for speeding. Appellant testified that he did not spill a drink on his suit although there might have been some honey mustard dressing on the garment. Appellant stated that he was not intoxicated when he was pulled over.

 
II. DISCUSSION

In Appellant's sole issue, he maintains that the evidence was insufficient to support the conviction. (1)

In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).

Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.--El Paso 1992, pet. ref'd). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex. App.--El Paso 1995, pet. ref'd); 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); Leyva v. State, 840 S.W.2d 757, 759 (Tex. App.--El Paso 1992, pet. ref'd); Bennett v. State, 831 S.W.2d 20, 22 (Tex. App.--El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843, (qouting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness's testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex. App.--El Paso 1995, pet. ref'd).

Viewing the evidence in the light most favorable to the verdict, the testimony indicated that when Appellant was stopped, he exhibited a strong odor of alcohol, his speech was hesitant and slurred, his clothing was soiled, his eyes were bloodshot, his balance was unsteady, and he had an open can of beer in his car. Thornton also believed that Appellant was intentionally trying to hide his slurred speech and he altered his story concerning the emergency nature of his speeding. Thornton testified that he thought Appellant was intoxicated. We find that the evidence was legally sufficient to support the conviction. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979).

When conducting a review of the factual sufficiency of the evidence, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W. 2 126, 129 (Tex. Crim. App. 1996); Levario, 964 S.W.2d. 290, 295 (Tex. App.--El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder's determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 135.

Appellant presented the testimony of three witnesses. Both Wunderlick and Chicorelli testified they did not believe Appellant was intoxicated. However, Wunderlick's testimony did not take into account the fact that Appellant could well have been drinking in the car after the reception. Chicorelli only observed Appellant while he was seated in the police car. Appellant's testimony that he was not intoxicated combined with the other defense testimony does not outweigh the evidence of guilt. Accordingly, Issue No. One is overruled.

Having overruled Appellant's sole issue on review, we affirm the judgment of the trial court.

June 17, 2004

 

RICHARD BARAJAS, Chief Justice

 

Before Panel No. 2

Barajas, C.J., McClure and Chew, JJ.

 

(Do Not Publish)

1. Appellant does not specify whether he is complaining about legal insufficiency, factual insufficiency, or both. The prayer in his brief asks us to reverse and enter a judgment of acquittal or to reverse and remand for a new trial, suggesting he seeks a review of both legal and factual sufficiency. His arguments and the cases he cites pertain to both legal and factual sufficiency. Nonetheless, we will analyze the evidence for both legal and factual insufficiency.