Michael David Erhardt v. The State of Texas--Appeal from County Court at Law No 1 of Collin County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

Appeal from the

County Court at Law No. 1

of Collin County, Texas

(TC# 001-87284-04)

O P I N I O N

Michael David Erhardt appeals his conviction for driving while intoxicated. A jury found him guilty, and the trial court assessed punishment at 120 days confinement in the county jail, probated for 18 months, and a fine of $1,000. In two issues, Appellant contends that the evidence presented at trial is both legally and factually insufficient to prove that he was intoxicated at the time he was driving. We affirm.

On October 28, 2004, at about 2:30 a.m., State Trooper Shawn Tasby was patrolling the Dallas North Tollway in Collin County, Texas when his radar measured a red two-door Mitsubishi traveling seventy-five miles-per-hour in the sixty miles-per-hour zone. He stopped and approached the driver, the Appellant. Appellant had some trouble finding his driver's license and fumbled around looking for it. While speaking with Appellant, Trooper Tasby smelled an odor of alcohol coming from the vehicle and from Appellant. When asked whether he had been drinking, Appellant stated that he had consumed five drinks between earlier in the afternoon and approximately one hour and a half before the stop.

Trooper Tasby conducted several field sobriety tests. He first asked Appellant if he wore eyeglasses or contact lenses, and Appellant replied that he was wearing contact lenses. He then asked whether Appellant had any problems with his legs, and Appellant stated that he did not. On the horizontal gaze nystagmus test, Appellant displayed six of the six clues of intoxication. On the walk and turn exercise, Appellant was unable to stand heel-to-toe on a line, took the wrong number of steps, did not walk heel-to-toe as instructed, used his arms to balance himself, and made an improper turn. Appellant told Trooper Tasby that he had sinus problems, which impaired his balance "big time." When asked to stand on one leg, Appellant made several attempts but was ultimately unable to complete the test. Trooper Tasby arrested Appellant on the belief that he was intoxicated.

The video from Trooper Tasby's patrol car shows Appellant apparently nodding in and out of sleep, beginning within about one minute after leaving the scene of arrest and continuing throughout the drive to the Collin County Jail. At one point, Appellant appears to briefly fall asleep while leaning his head against the safety belt, with the safety belt caught in between his lips.

Upon arrival at the Collin County Jail, Appellant complained of chest pains and was screened by the jail nurse, Jennifer Walker. Ms. Walker took Appellant's blood pressure, and having found no cause for alarm, took no further action. The Appellant refused to give a sample of his breath. Instead, he offered a sample of his blood, but Trooper Tasby denied his request.

Appellant was later indicted for driving while intoxicated. At trial, Appellant presented an impairment rating report conducted on April 30, 1997 in response to an injury he sustained on January 23, 1996. The report states that Appellant has a 22 percent whole person impairment rating, but that Appellant's gait is "[n]ormal in heel and toe and tandem walking without evidence of weakness or antalgia."

In reviewing the legal sufficiency of the evidence, we must view the evidence 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, 319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In conducting our review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).

In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, 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), overruled on other grounds by Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006). Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. Our evaluation, however, should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481. A clearly wrong and manifestly unjust verdict occurs where the jury's finding "shocks the conscience" or "clearly demonstrates bias." Id. An opinion addressing factual sufficiency 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).

In Issue One, Appellant contends that the evidence of his intoxication is legally insufficient to support the jury's verdict. "Intoxicated" means: (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). In this case, Appellant was tried under the "not having the normal use of mental or physical faculties by reason of the introduction of alcohol" into the body. Evidence of intoxication may include, inter alia: (a) slurred speech; (b) bloodshot eyes; (c) the odor of alcohol on the person; (d) unsteady balance; (e) a staggered gait; and (f) the odor of alcohol on the breath. Cotton v. State, 686 S.W.2d 140, 143 n.3 (Tex.Crim.App. 1985). The uncorroborated testimony of a peace officer, standing alone, is sufficient to establish the element of intoxication. Valles v. State, 817 S.W.2d 138, 141 (Tex.App.--El Paso 1991, no pet.), citing Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979).

Viewed in the light most favorable to the verdict, the evidence shows that Trooper Tasby observed Appellant traveling at seventy-five miles-per-hour in a sixty mile-per-hour zone. When Trooper Tasby approached Appellant, he smelled an odor of alcohol coming from the car and from Appellant. Appellant failed three standardized field sobriety tests, including the walk and turn and the one-leg stand tests because he was unable to maintain his balance. At the time of the stop, Trooper Tasby had been a State Trooper for three and a half years and testified that he believed the Appellant was intoxicated, and no longer had the normal use of his mental and physical faculties. Appellant admitted to Trooper Tasby that he had been drinking throughout the day, and refused to give a sample of his breath. Based on the above evidence, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Appellant did not have the normal use of his mental or physical faculties by reason of introduction of alcohol into his body, and thus was intoxicated. We conclude the evidence is legally sufficient to sustain Appellant's conviction for driving while intoxicated. Issue One is overruled.

In Issue Two, Appellant asserts that the evidence adduced at trial is factually insufficient to establish that he was intoxicated. Discussing the most important and relevant evidence that supports Appellant's complaint, he testified that he fell from a twenty-foot ladder in 1996, shattering his skull and breaking his neck and lower back. Appellant stated that because of this injury, he could not physically perform the tasks Trooper Tasby had requested of him. He also testified that he suffers from inner ear and sinus problems, which "throws [his] balance off." Appellant testified that he wears contact lenses and is supposed to wear them for a maximum of ten hours per day, but had been wearing them for over fifteen hours at the time of the stop. Both Trooper Tasby and Nurse Walker testified that nystagmus may be affected by factors other than alcohol, including head injuries.

Appellant also asserts that he did not display the usual signs of intoxication. Trooper Tasby testified that the only thing unusual about Appellant's driving was his speeding. He also testified that Appellant was compliant, had no trouble exiting his vehicle or walking over to where he was instructed, and did not stumble, fall, or lean against the car for support. Trooper Tasby further testified that there was nothing unusual about Appellant's behavior during their ride to the jail. Appellant offered to submit to a blood test. However, the statute allows the peace officer to request a breath or blood test. Tex.Transp.Code Ann. 724.012(c)(Vernon Supp. 2007); Aguirre v. State, 948 S.W.2d 377, 379 (Tex.App.--Houston [14th Dist.] 1997, pet. ref'd)(no law exists authorizing the officer to allow an accused to furnish a blood sample instead of taking a breath test). The courts have held that the officer has the discretion to choose which type of test to request of the accused. Aguirre, 948 S.W.2d at 380, citing Drapkin v. State, 781 S.W.2d 710, 712 (Tex.App.--Texarkana 1989, pet. ref'd). Finally, Appellant testified that he was simply not intoxicated at the time of the stop.

As stated above, there is evidence that Appellant was speeding, smelled of alcohol, appeared to a law enforcement officer to be intoxicated, and failed three field sobriety tests. Thus, the evidence of Appellant's intoxication is not so weak as to make the verdict seem clearly wrong or manifestly unjust. As for the evidence contrary to the jury's verdict, we likewise find that it does not outweigh the evidence of Appellant's guilt. While Appellant testified that his 1996 injury caused him a 22 percent impairment from which he painfully suffers every day, neither he nor Trooper Tasby could recall that Appellant had mentioned this injury at the time of the stop. In fact, Appellant told Trooper Tasby that he did not have any problems with his legs. The impairment rating report, the only evidence of Appellant's injury other than his own testimony, explicitly states that Appellant was able to walk heel-to-toe normally one year after his injury. There is no evidence that Appellant was or appeared to be in pain while walking or while attempting to perform the various field sobriety tests. The medical records also state that he is independent with a home exercise program, and works out at the gym on a daily basis. It also shows that he denied any neurological deficits such as numbness, tingling, or radiating pains into his arms or legs. Appellant testified that he does not take any medication, not even pain medication, to treat the pain he stated he suffers whenever he walks. Appellant also testified that he formerly received disability benefits for his impairment but no longer does. While we agree there was evidence presented that Appellant's prior injuries could have affected his performance on the field sobriety tests, this evidence was not so strong that the beyond a reasonable doubt standard could not have been met. The jury could have reasonably accepted Trooper Tasby's testimony that Appellant was speeding, smelled of alcohol, failed the three sobriety tests, and appeared to be intoxicated. The jury was also able to view the videotape of the stop. We find that the jury's verdict is not so contrary to the overwhelming weight of the evidence so as to be clearly wrong and manifestly unjust. Thus, we conclude the evidence is factually sufficient to sustain Appellant's conviction. Issue Two is overruled.

Having overruled Appellant's two issues, we affirm the judgment of the trial court.

February 21, 2008

DAVID WELLINGTON CHEW, Chief Justice

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

(Do Not Publish)