Angela Urenda v. The State of Texas--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ANGELA URENDA, )

) No. 08-04-00045-CR

Appellant, )

) Appeal from the

v. )

) 210th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20030D02627)

)

O P I N I O N

Appellant Angela Urenda appeals her felony conviction for driving while intoxicated. A jury found her guilty, and the trial court assessed punishment at 5 years= probation, with 30 days imprisonment as a condition of probation, and a fine of $1,500. On appeal, Appellant contends the evidence was factually insufficient to sustain the conviction. We affirm.

In the early morning of March 19, 2003, Ronald Martin went to Wal-Mart store in Northeast El Paso, Texas. He pulled in behind an SUV that he thought would move, but when it did not move, he honked, backed up, and then went around. As he drove around the SUV, Mr. Martin saw a woman with long, dark hair, later identified as the Appellant, sitting in the driver=s seat. She was slumped over the steering wheel. He also noticed that the vehicle=s taillights were on. As Mr. Martin walked toward the Wal-Mart, he noticed the same

dark-colored SUV, with the motor running and lights on, move forward slowly at an angle for about twenty feet. The vehicle suddenly stopped but the brake lights did not go on. Mr. Martin did not see what caused the vehicle to stop.

At about the same time, Aaron McDonald was inside the Wal-Mart store and had been inside twenty to twenty-five minutes. When he left the store, he found that a black Suburban had run into and damaged his car. The Suburban driver, the Appellant, was slumped over the wheel. Mr. McDonald roused the Appellant and told her that if she did not cooperate, he was going to call the police. At some point during the conversation, Appellant took a swing at Mr. McDonald threatened him saying, AM***** f*****, I=m going to kick your ass.@ Mr. McDonald then flagged down a security guard, Gregorio Carbajal, about 1 a.m. and told the guard that his car had been hit. Mr. McDonald then went inside the store and asked a manager to call the police.

Mr. Carbajal found the Appellant=s Suburban stuck to the bumper of Mr. McDonald=s car. Although he thought Appellant looked Afine,@ Mr. Carbajal did smell alcohol on Appellant=s breath when she told him that the damage was Aa little scratch . . . just nothing.@ Mr. Carbajal testified that about thirty-two minutes passed between the time he was flagged down and the police arrived.

El Paso Police Officers, Frank Rodriguez and Michelle Gomez, were dispatched to the Wal-Mart at about 1 a.m. and arrived about five or ten minutes later. Officer Rodriguez stated Appellant was very agitated and angry at Mr. McDonald. Officer Rodriguez detected alcohol on Appellant=s breath and noticed her balance was unsteady when walking. Officer Rodriguez then testified that she failed the three standard field sobriety tests that he administered, and based on those results, she was arrested. At the police station, the police administered the intoxilyzer test to Appellant. Appellant=s two breath samples indicated an alcohol concentration of .217 and .212. The State introduced evidence of two previous judgments against Appellant for the offense of driving while intoxicated.

In her sole issue on appeal, Appellant contends the evidence to support her conviction for driving while intoxicated, third or more, is factually insufficient. Specifically, she insists there was lack of evidence she was intoxicated at the time she operated a vehicle.

Standard of Review

Appellant does not raise a legal sufficiency issue, so the evidence is presumed to be legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). When considering the factual sufficiency of the evidence, the court is to review the evidence in a neutral light and determine if the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); see also Clewis, 922 S.W.2d at 129. There are two ways the evidence can be factually insufficient: (1) the evidence when considered by itself is too weak to find guilt beyond a reasonable doubt; or (2) contrary evidence is strong enough such that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. This standard acknowledges that evidence supporting guilt can Aoutweigh@ contrary evidence but still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. at 485. Appellate courts must give proper deference to the jury=s findings and find the evidence factually insufficient only to prevent a manifest injustice. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). A proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the Appellant=s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

Elements of the Offense

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). An offense under Section 49.04 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted two times of any other offense relating to the operating of a motor vehicle while intoxicated. Tex.Pen.Code Ann. ' 49.09(b)(2) (Vernon Supp. 2004-05). Intoxicated is having an alcohol concentration of 0.08 or more. Tex.Pen.Code Ann. ' 49.01(2)(B).

Proof of the precise time of an accident or of driving is not the sine qua non of driving while intoxicated. Zavala v. State, 89 S.W.3d 134, 139 (Tex.App.--Corpus Christi 2002, no pet.). Instead, there must be a Alink@ between the driving and intoxication from which the fact finder could conclude that at the time the driving took place, the driver was intoxicated. See id. Establishing the time of driving gives the jury an informed basis to determine the relationship, if any, between the driving and intoxication, if proven. See id., quoting Kennedy v. State, 797 S.W.2d 695, 697 (Tex.App.--Houston [1st Dist.] 1990, no pet.).

Appellant contends the evidence presented by the State was too weak to uphold her conviction for driving while intoxicated beyond a reasonable doubt. She concedes that she was driving at the time of the collision in the parking lot. She concedes that the evidence was sufficient to show she was intoxicated at the time of her arrest. She points to the testimony of Mr. Carbajal, who said she appeared fine to him even though he smelled alcohol on her breath, and to the intervening space of time, forty-seven to fifty-seven minutes, before the police arrived and administered the field sobriety tests. Thus, we understand her argument to be that though she was intoxicated slightly less than a hour after the collision, she was not intoxicated at the time of the collision. This is essentially a reverse or retrograde extrapolation defense, that is, that the accused=s blood alcohol content was lower at the time he or she operated their vehicle than it was at the time a blood alcohol content test was administered. Not surprisingly, she ignores the results of the two breath intoxilyzer tests taken at the police station after her arrest: .217 and .212.

We find no merit in Appellant=s argument. There is overwhelming evidence to support the jury=s verdict. The intoxilizer test alone is evidence that she was intoxicated at the time she operated her vehicle. She concedes that she was intoxicated at the time she was arrested. The evidence is factually sufficient to support the jury=s verdict that she was guilty of felony DWI.

We overrule Issue One and affirm the judgment of the trial court.

August 4, 2005

DAVID WELLINGTON CHEW, Justice

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

(Do Not Publish)