MIGUEL GONZALEZ MALDONADO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued April 23, 2008
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00657-CR
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MIGUEL GONZALEZ MALDONADO, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 6
Collin County, Texas
Trial Court Cause No. 004-82570-01
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OPINION
Before Chief Justice Thomas and Justices Bridges and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Miguel Maldonado was charged by information with driving while intoxicated (DWI), second offense. Appellant waived a jury and pleaded not guilty before the trial court. After the trial court found appellant guilty, appellant pleaded true to the allegation he had been previously convicted of a misdemeanor DWI. The trial court found the allegation true and sentenced appellant to one year in the county jail. In three points of error, appellant complains the trial court erred in overruling his objection to the testimony of a Plano police officer and the evidence was legally and factually insufficient to support his conviction. We affirm.
 
Facts
 
        On April 28, 2001, appellant's vehicle ran into another vehicle that was stopped at a red light. The sole occupant of the second vehicle, Willette Glenn, was seriously injured as a result of the accident.
        Glenn testified that while traveling on Highway 121 toward McKinney, Texas, she saw a white van weaving into another lane. Glenn observed the van stop at a red light at the intersection before Highway 121 and Independence Parkway. The light turned green, but the van did not move, so Glenn went around it. As Glenn did so, she noticed the van's driver appeared to be asleep. Glenn approached the intersection of Highway 121 and Independence Parkway. The light was red, so she stopped. While waiting for the light to change, Glenn looked in her rear view mirror and saw the same white van traveling at a fast rate of speed towards the intersection. The van neither stopped nor slowed down, and struck Glenn's vehicle in the rear. Glenn had no personal contact with the van's driver. Two civilian witnesses, Ruben Martinez and Allison Farquhar, testified to essentially to same facts as Glenn. Neither of those witnesses had any contact with the van's driver.
        Plano Police Department officer Tommy Ruiz was the only police officer called by the State to testify at trial. Ruiz testified he was dispatched to the scene at the request of other officers to act as a translator. Ruiz was told by the referring officers that appellant may be “under the influence.” The officers wanted Ruiz to conduct some standardized field sobriety tests, speaking in Spanish to appellant.
        At this point in Ruiz's testimony, defense counsel objected to further testimony on the basis there was no evidence to justify further detention of appellant for purposes of the tests. The trial court overruled the defense objection, but allowed counsel a “running objection.” Ruiz testified he administered the horizontal gaze nystagmus (HGN) test. Ruiz observed six clues. He also observed six clues on the walk-and-turn test, but appellant successfully completed the one-leg stand. Ruiz arrested appellant for DWI and requested a blood specimen. Appellant refused to give a specimen. Ruiz testified it was his professional opinion appellant had lost the normal use of his mental and physical faculties due to the use of an alcoholic beverage.
        On cross-examination, Ruiz conceded there were visual distractions during the field sobriety tests. He also testified appellant's balance and walk were normal. On re-direct, however, Ruiz testified such distractions were relevant only to night-time tests. Appellant performed the tests during daylight hours. After the State introduced a videotape into evidence, which was published to the trial court, the State rested. The defense rested without presenting any witnesses.
Field Sobriety Tests
 
        In appellant's first point, he complains the trial court erred by allowing Ruiz's testimony about the field sobriety tests over defense objection on the basis there was no reasonable suspicion or probable cause to detain appellant in violation of his statutory and constitutional rights, both federal and state. Appellant further contends the error was constitutional error. See Tex. R. App. P. 44.2(a). Appellant argues he was harmed because, if the trial court had sustained his objection, there would have been no evidence or testimony that he was intoxicated by reason of the introduction of alcohol into his body. He points to the lack of admission by him, as well as the lack of evidence of an odor of an alcoholic beverage on his breath or person, slurred speech, bloodshot eyes or any other sign appellant was intoxicated. Thus, he contends his detention was without reasonable articulable suspicion.
        We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard.   See Footnote 2   Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). A trial court abuses its discretion when it applies an erroneous legal standard or when no reasonable review of the record could support the trial court's conclusion. See Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). We will uphold the trial court's ruling so long as it falls within the “zone of reasonable disagreement.” See Powell, 63 S.W.3d at 438.
        It is well settled that a police officer may stop and briefly detain persons suspected of criminal activity if the officer possesses a reasonable suspicion to justify the investigative detention. See Terry v. Ohio, 392 U.S. 1, 19-20 (1968). The validity of a stop is determined from the totality of the circumstances. See United States v. Sokolow, 490 U.S. 1, 8 (1989). The officer must have specific articulable facts which, premised upon his experience and personal knowledge and when coupled with the logical inferences from those facts, would warrant intruding upon the detained citizen's freedom. See Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989).
        There was evidence that Glenn saw appellant's van was weaving from one lane to the another, appellant appeared to be asleep at the wheel at a red light and failed to proceed when the light turned green, and while driving at a high rate of speed, and without making any effort to stop his vehicle, appellant hit the rear end of Glenn's vehicle while it was stopped at a red light. A civilian witness described appellant as being “puzzled” or “confused” after the accident. There was no evidence offered of any other reason for appellant's conduct. These facts were sufficient to create reasonable suspicion justifying appellant's detention for further investigation. See Terry, 392 U.S. at 19-20. We conclude the trial court did not abuse its discretion by admitting the field sobriety evidence by Ruiz. We overrule appellant's first point of error.
 
Sufficiency of the Evidence
 
        In appellant's second and third points of error, he complains the evidence is both legally and factually insufficient to support the trial court's conclusion appellant was intoxicated by reason of alcohol. We disagree.
        In determining the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). In a factual sufficiency review, we review all the evidence in a neutral light to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, the evidence must objectively show either the evidence, although legally sufficient, was nonetheless so weak it was clearly wrong or manifestly unjust, or the great weight and preponderance of the evidence contradicts the verdict. See id. at 417. A conviction is not “clearly wrong” or “manifestly unjust” simply because the reviewing court would have voted to acquit. See id.
        In conducting our review, we consider all of the evidence, whether or not properly admitted. See Green v. State, 893 S.W.2d 536, 538 (Tex. Crim. App. 1995). The trier of fact is the judge of the weight and credibility to be given a witness's testimony. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
        The State was required to prove appellant operated a motor vehicle in a public place while intoxicated. See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). To prove intoxication, the State had to show appellant did not have the normal use of his 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 his body. See id. § 49.01(2)(A).
        Appellant challenges the sufficiency of the evidence to show he was intoxicated by reason of alcohol. He also argues there is no evidence he had lost the use of his normal mental and physical faculties. He relies on the videotape which he says shows he adequately completed the one-leg stand and walk and turn tests.
        Ruiz testified it was his professional opinion appellant was intoxicated by reason of alcohol at the time of the accident. A lay person can testify a defendant is intoxicated by alcohol. McCown v. State, 192 S.W.3d 158, 164 (Tex. App.-Fort Worth 2006, pet. ref'd). Additionally, there was evidence of appellant's conduct in performing the field sobriety tests and his refusal of a blood test. Appellant showed all six clues on the HGN test, a test that has been accepted as a reliable scientific test to detect alcohol in the body. Emerson v. State, 880 S.W.2d 759, 768 (Tex. Crim. App. 1994). Ruiz ruled out drugs or brain damage by appellant's denial of drug use and lack of a head injury. Although appellant claims visual distractions rendered the HGN test invalid, the record does not bear this out. Ruiz testified the presence of visual distractions is only relevant to the validity of night-time tests. Appellant's tests were conducted during daylight hours. Further, appellant's refusal to submit to a blood test was admissible against him and is relevant evidence of intoxication. See Tex. Transp. Code Ann. § 724.061 (Vernon1999); Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001). The trial court, as fact finder, was permitted to reasonably infer from appellant's refusal that he was intoxicated.
        Viewing the evidence in the light most favorable to the verdict, we conclude the evidence was sufficient to support the verdict. And, when we view all the evidence in a neutral light, we reach the same conclusion. We overrule appellant's second and third points of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
070657F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Appellant did not file a pretrial motion to suppress the evidence.