Jerry Miller v. The State of Texas--Appeal from County Criminal Court No. 1 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JERRY MILLER, )

) No. 08-03-00268-CR

Appellant, )

) Appeal from the

v. )

) County Criminal Court at Law #1

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20010C16034)

)

O P I N I O N

Jerry Miller appeals his conviction for driving while intoxicated. A jury found Appellant guilty of the charged offense, and the trial court assessed punishment at 180 days= imprisonment probated for 18 months together with a $1,000 fine. Finding the evidence sufficient to support the verdict, we affirm.

FACTUAL SUMMARY

On the evening of October 17, 2001, Johnny Rivers was at his home in the 4100 block of O=Keefe Drive in El Paso when he noticed a Dodge Durango pull in front of his house and stop. The front end of the Durango was pointed out into the street with the rear end facing the curb. Rivers went outside, wondering who it was. He watched the vehicle but no one exited. Rivers then got in his own truck, backed down the driveway, and looked at the vehicle. He drove up O=Keefe and flashed his lights on high beam, but he could not see anyone inside the vehicle. He did notice that the vehicle was still running. He then went back inside and told his girlfriend to call the police.

Officers Paul Ramsey and Curtis Hamilton were dispatched to the scene around 10:20 p.m. in response to a suspicious vehicle. They found a white Dodge Durango approximately six feet from the curb facing northeast with its brake lights activated. The street was uphill, undivided, and approximately one-fourth wider than a normal residential street.

The officers spotted Appellant slumped over to the right side in the driver=s seat. Officer Ramsey approached the driver=s side and tried to get Appellant=s attention by knocking on the window and shining his flashlight in Appellant=s face. Hamilton went to the passenger side of the vehicle. When there was no response from Appellant, Ramsey knocked harder and louder and then opened the driver=s side door. Ramsey immediately detected the odor of alcohol. He shook Appellant=s arm two times, and Appellant woke up. He sat up in the seat, moving his feet and causing the brake pedal to be released so that the vehicle moved forward about five feet. Ramsey told Appellant to stop the vehicle and he reached inside to put the gear in park.[1] Ramsey identified himself as an officer, and Appellant answered, AI don=t do cops.@ Ramsey was concerned about the statement and did not believe he was joking. Appellant explained that he meant he would not give the officers any trouble.

Officer Ramsey described Appellant=s hair as mussed and his appearance disheveled. Hamilton characterized him as disoriented. Ramsey had Appellant exit the vehicle and confirmed that the odor of alcohol was coming from Appellant=s person. The officers were not able to determine the precise beverage from the smell. Appellant had red, glassy eyes and slurred speech, his balance was unsteady, and he had to place his hands on the vehicle twice when walking to the back of it.[2]

Appellant told Ramsey that he was coming from Coronado Country Club where he had consumed two glasses of Cabernet. He was on his way to a friend=s house on Excalibur but had taken a wrong turn. He pulled over to catch a cat nap when he became sleepy. He angled the car toward the edge of the curb to prevent it from rolling, put it in park, locked the doors, and left the air conditioning running.

Ramsey believed that Appellant was intoxicated and instructed Officer Hamilton to conduct field sobriety tests. Appellant refused to take the tests. Ramsey looked at the vehicle and found no damage. He also found no damage to mailboxes in the area.

Officer Hamilton tried to frisk Appellant, but he was not standing in the proper manner. Hamilton then placed his hand on Appellant=s belt. The officers asked Appellant to spread his feet apart numerous times. Finally, Hamilton did it for him. Appellant lost his balance and fell into the back of the vehicle. As he dropped to the ground, he was yelling, ABeat me like I=m Rodney King.@[3]

Appellant was arrested, handcuffed, and placed in the patrol car. He slept during the ride to the station. He was awakened upon arrival and placed in a holding cell where he again fell asleep. Awakened once more, Appellant was taken to the videotaping room where the requisite warnings and sobriety tests were administered. Ramsey did not know of a medical condition but he recalled that Appellant was taking a medication called ADarson.@ Appellant testified that he took ADapsone,@ not ADarson,@ to treat a skin condition. He also regularly took Skelaxin, a muscle relaxant, Celebrex, and Tylenol. Skelaxin was taken for his chronic back pain. Although Appellant denied that the medications had any effect on his faculties, he did admit that Skelaxin could make a patient sleepy and this could be exacerbated by alcohol use. Appellant had taken three pills that morning.

Officer Ramsey testified that while bloodshot eyes are not an indicator of intoxication, slurred speech, posture, odor of alcohol, and balance are. Passing out at the wheel is another indicator. Hamilton added that he would not expect a person with normal use of his mental faculties to fall asleep in a running vehicle in the middle of a street. On the other hand, Appellant testified that he is a cardiologist who works long irregular hours. It was not unusual for him to pull over to sleep.

The officers testified that Appellant told them he had no medical problems or injuries which would interfere with his performance on the tests. At trial, Appellant described his back pain and explained his previous knee surgery. He admitted that he never told the officers of his condition, but claimed he was never asked. Hamilton admitted that such conditions could invalidate the results of the tests. In fact, the tests are not recommended if the performer has a bad back or knees. Appellant was given an opportunity to provide a breath sample but refused.[4] He claimed he was not offered a blood test but admitted he did not offer to provide one.

The testimony also differed as to the sobriety testing. Officer Hamilton explained Appellant=s performance on the walk and turn test. Appellant was required to stand in a particular posture while he was read the instructions. Instead, Appellant was swaying slightly side to side. He claimed he simply refused to stand in an uncomfortable position. Both Hamilton and Ramsey described the four clues on the one-leg stand test. Appellant was swaying badly, using his arms for balance, and putting his foot down. Hamilton observed three out of four clues. Appellant maintained he was merely sleepy and that he was scared of losing his medical license.

SUFFICIENCY OF THE EVIDENCE

In four points of error on appeal, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction.[5] He argues first that there was insufficient evidence to show he drove or operated a motor vehicle. He then contends that the evidence was insufficient to show that his mental or physical faculties were impaired. He offers the following defensive theories: (1) the officers did not ascertain whether Appellant had any limitations which would affect the outcome of the field sobriety tests; (2) there were insufficient indicators of intoxication at the scene; (3) the officers did not know what alcoholic beverage he had consumed and his testimony regarding how much he drank and when he drank it was not contradicted; and (4) indicators such as bloodshot eyes and a disheveled appearance were explained by his sleeping.

Standard of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See 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). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder=s determinations. See id. at 8 9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may Abelieve all, some, or none of the testimony.@ Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

Driving While Intoxicated

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex.Pen.Code Ann. ' 49.04(a)(Vernon 2003); Tex.Pen.Code Ann. ' 49.09(c)(Vernon Supp. 2004-05). ATo find operation under [the DWI] standard, the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of [the] vehicle in a manner that would enable the vehicle=s use.@ Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App. 1995). While driving involves operation, operation does not necessarily involve driving. Denton, 911 S.W.2d at 389.

AIntoxication@ is statutorily defined as: (A) 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, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more. Tex.Pen.Code Ann. ' 49.01(2)(A)(B). Appellant was charged with intoxication by not having the normal use of his mental and physical faculties.

Was He Operating the Car?

Officers Ramsey and Hamilton came upon Appellant=s Durango as he was sitting slumped over in the driver=s seat, asleep, with the engine running and the brake lights engaged. The vehicle was on a residential street approximately six feet from the curb, blocking the roadway. When the officers finally awakened Appellant, his foot left the brake pedal and the vehicle lurched forward. Officer Ramsey told Appellant to stop but had to reach inside the car to put it into park. We conclude that Appellant was operating a motor vehicle. See Denton, 911 S.W.2d at 390; see, e.g., Hearne v. State, 80 S.W.3d 677, 679 81 (Tex.App. -Houston [1st Dist.] 2002, no pet.)(holding evidence of operation legally and factually sufficient where truck was in moving lane of traffic on service road to highway, with engine running, gearshift Ain park,@ and driver was alone); Freeman v. State, 69 S.W.3d 374, 375 (Tex.App.- Dallas 2002, no pet.) (holding evidence of operation legally and factually sufficient where SUV=s motor was running, gearshift was in the Adrive@ position, lights were on, right front tire was resting against a curb of a public street, and driver was asleep at the wheel).

Was He Intoxicated?

The record as a whole also illustrates that ample proof of Appellant=s intoxication was offered to the jury. Officers found Appellant slumped over in the driver=s seat of his vehicle asleep. It was difficult to awaken him. His was mussed, his appearance disheveled, his eyes bloodshot, and his speech slurred. Officer Ramsey also smelled alcohol and confirmed the smell was coming from Appellant=s person. Appellant told the officer he had come from the country club where he had drunk two glasses of wine. His balance was unsteady and he braced himself on the vehicle while walking to the rear. He was uncooperative when Officer Hamilton tried to frisk him, and when he lost his balance and fell during the frisk, Appellant yelled, ABeat me like I=m Rodney King.@ Appellant refused to perform field sobriety tests at the scene. On the way to the station and again in the holding cell, Appellant fell asleep. He refused to give a breath sample and performed poorly on the sobriety tests conducted at the station. Officer Hamilton found three of four clues on the one leg stand test, and Appellant refused to properly complete the walk and turn test. Even if Appellant=s performance on the sobriety tests could be invalidated due to his alleged physical incapacities, it was within the province of the jury to disbelieve his testimony regarding his back and knee problems and to believe the officers= testimony that they knew of no physical limitation which would have prevented Appellant=s performance of the tests. Appellant also argues that no evidence of blood alcohol concentration levels from two glasses of wine was presented at trial. However, the State did not charge Appellant under the second prong of Aintoxication@ dealing with blood alcohol level but under the loss of faculties provision. The officers testified they believed Appellant had a loss of use of his mental and physical faculties at the scene. Finally, while Appellant argued that bloodshot eyes or a disheveled appearance did not show intoxication, the jury obviously found that Appellant=s bloodshot eyes and disheveled appearance coupled with his slurred speech, unsteady balance, and uncooperativeness and the fact officers found him in a running car in the middle of a roadway provided sufficient evidence of his intoxication.

Viewing all of the evidence in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt that Appellant was intoxicated in that he had lost the normal use of his mental or physical faculties at the time Officers Ramsey and Hamilton encountered and arrested him. See, e. g., Fogle v. State, 988 S.W.2d 891, 893 (Tex.App.- Fort Worth 1999, pet. ref=d)(holding evidence legally sufficient to support finding of intoxication by reason of introduction of alcohol and loss of normal use of mental and physical faculties); Reagan v. State, 968 S.W.2d 571, 572 73 (Tex.App.- Texarkana 1998, pet. ref=d)(holding evidence of alcohol odor on defendant=s breath and defendant=s poor performance of field sobriety tests legally sufficient to support DWI conviction due to defendant=s loss of normal use of mental and physical faculties).

Likewise, viewing the evidence in a neutral light and giving due deference to the jury=s responsibility to resolve conflicts in the evidence, we cannot say that the jury=s verdict is against the great weight of the evidence. See, e. g., Fogle, 988 S.W.2d at 893 94 (holding evidence of defendant=s loss of mental and physical faculties factually sufficient to support DWI conviction); Reagan, 968 S.W.2d at 572 73 (holding evidence of defendant=s loss of mental and physical faculties factually sufficient to support DWI conviction). We conclude that the evidence was both legally and factually sufficient to support the jury=s verdict. The four points of error are overruled and the judgment of the trial court is affirmed.

February 17, 2005

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

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

Larsen, J., Not Participating

(Do Not Publish)

[1] Appellant testified that he rolled down the window and that it was the officer who knocked the vehicle out of park when trying to retrieve the keys.

[2] Appellant claimed he stepped on some rocks which caused him to lose his balance.

[3] Rivers had come back outside when the officers arrived. Although he testified that the officers took no violent or aggressive actions and assisted Appellant in getting back up, Appellant claimed the officer kicked his feet out from underneath him.

[4] Appellant believed that breath test results were unreliable since the breathalyzer was not calibrated on a per use basis.

[5] In Point of Error One, Appellant complains that the trial court should have directed the verdict since the evidence was legally insufficient to show Appellant was driving while intoxicated. In Point of Error Two, he complains that the trial court should have directed the verdict since the evidence was factually insufficient. In Point of Error Three, he argues that the trial court erred in receiving the jury=s verdict of guilty. In Point of Error Four, he challenges the sufficiency of the evidence to support his conviction. He has addressed all four points together, as shall we.