JUNE HAMILTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 9, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00008-CR
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JUNE HAMILTON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law
Grayson County, Texas
Trial Court Cause No. 2008-1-198
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OPINION
Before Chief Justice Wright and Justices Francis and Fillmore
Opinion By Chief Justice Wright
        A jury convicted June Hamilton of driving while intoxicated and assessed punishment at thirty days' confinement in the county jail and a $2000 fine. In a single issue, appellant contends the evidence is factually insufficient to sustain the conviction. We affirm.
Applicable Law
 
        In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the fact- finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        To support appellant's conviction, the State was required to prove beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). “Intoxicated” means 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, or a combination of two or more of those substances or any other substance into the body. See id. § 49.01(2).
Evidence Presented
 
        The jury heard testimony from Phillip Haggard, who testified that at one point in his career, he was a prosecutor in Durant, Oklahoma, and handled DWI cases. Haggard testified that on November 21, 2007, he was driving northbound on Highway 75, between the cities of Anna and Howe, when he saw a black SUV weaving in traffic. The SUV crossed over into other lanes and onto the shoulder several times. At times, the SUV straddled two lanes, and it almost collided with other vehicles. Haggard called 911 on his cell phone and told the dispatcher he was driving behind a possible drunk driver. Haggard remained on the line as he followed the SUV for about five miles. Haggard testified the SUV was going “really fast” as it exited the highway at Washington Street. The SUV “jumped the curb,” made a U-turn underneath the highway, then drove into a restaurant parking lot and stopped. Haggard saw appellant exit the driver's side of the SUV and go inside the restaurant. Police officers arrived a few minutes later and went inside the restaurant, then came outside with appellant.
        Rob Ballew, a certified peace officer with the City of Sherman, testified he received a dispatch call stating a motorist was following a possible intoxicated driver northbound on Highway 75. The motorist described the vehicle and the driver, and said he followed the driver off the highway to a restaurant. When Ballew arrived at the restaurant, he saw the SUV in the parking lot, but there was no occupant. Ballew went inside the restaurant, but saw no one matching the driver's description. When Ballew asked a customer if he saw a woman matching the driver's description come into the restaurant, the customer said the woman had gone into the restroom. Ballew waited outside the restroom door. When he saw appellant come out of the restroom, he approached her. Ballew testified he immediately smelled “a very strong odor” of an alcoholic beverage on appellant's person and on her breath when she spoke. Appellant's eyes were glassy, and her jeans were wet in the front area, leading Ballew to believe she may have urinated on herself. Appellant did not appear to be upset, and she was not crying or shaking when she came out of the restroom. Ballew walked appellant outside to her vehicle because she said her driver's license was in her purse in the vehicle.
        According to Ballew, appellant was unable to carry on a normal “back and forth” conversation; she rambled on about things that did not pertain to what they were talking about. Haggard, who is certified to give standardized field sobriety tests, asked appellant to perform the walk-and-turn and the one-leg stand tests. Appellant could not understand his instructions. After asking appellant several times if she would perform the tests and she not understanding his instructions, Ballew handcuffed appellant and put her in the back of his patrol car. Ballew testified that as he transported appellant to the county jail, the odor of an alcoholic beverage was “so strong that it actually filled up the passenger compartment of the car. It made my eyes sting.” At the jail, appellant refused to give a breath sample, and she refused to sign the statutory warning form. A videotape from the patrol car's in-dash camera was admitted into evidence and played for the jury. Ballew testified that intoxicated persons often have “big mood swings,” and go from being very calm to sometimes very angry and violent. Ballew testified he arrested appellant because he believed she had lost the normal use of her mental and physical faculties due to alcohol consumption.
        Appellant denied that she had been driving while intoxicated, and told the jury she does not have alcohol in her house and only drinks occasionally “on a holiday or . . . I'm at a party or something, but I never drink and drive.” Appellant testified she was “emotionally distraught” that day because her fiancé had stated he could not go through with their wedding, which was scheduled for December 8, 2007. Appellant said her fiancé told her this at about 5:30 p.m. Appellant felt “destroyed” and “humiliated.” She got in her vehicle and drove around, not intending to go to any particular place. Appellant testified she was “out of control of myself” as she drove. She stopped at a gas station at Interstate-635 and Forest Lane, purchased a one-liter bottle of diet soda and a bag of pork skins, then drove onto the highway. She did not stop anyplace else between the gas station and the restaurant in Sherman. Appellant said she was driving erratically because she was crying and she tried to catch the soda when it fell from a cup holder, splashing her and knocking the pork skins all over the interior of the vehicle. Appellant admitted her vehicle swerved outside of its lane, but she denied that she did so several times or that she almost collided with any other vehicle.
        Appellant testified she exited the highway at a normal speed and stopped at the restaurant because she had to use the restroom and she wanted to wash up after the soda spilled on her. When she came out of the restroom, she went out to her car and saw police officers standing there. Appellant testified there were no officers inside the restaurant when she came out of the restroom. When she went out towards the parking lot, two officers approached her and began asking her questions. Appellant told the officers she had not been drinking, and she only stopped there to use the restroom because she had taken a water pill and Prednisone earlier that day. Appellant told the jury that Prednisone is a steroid which affects the kidneys and liver. During cross-examination, appellant denied that the officer smelled alcohol on her person or breath because she had not consumed any alcohol that day. Appellant said she did not understand the officer's instructions at the scene because she was “emotionally distraught that night,” and that she had been crying the entire time she was driving and that is why the officer said her eyes looked glassy. Appellant said the front of her pants were wet because the soda spilled on her and not because she urinated on herself. Appellant said she did not give a breath sample because she did not “like the way that he [the officer] approached me. I was already upset.”
Discussion
 
        Appellant contends the evidence is factually insufficient because her extreme emotional state explained her erratic driving and her conduct at the scene. Appellant asserts the evidence supporting the verdict was “clearly outweighed by conflicting evidence” because she explained that her erratic driving occurred when she tried to catch a drink that fell from the cup holder. The State responds that the evidence is factually sufficient to support appellant's DWI conviction.
        Appellant does not dispute the fact that she was operating a motor vehicle in a public place. In her sole issue, she challenges the factual sufficiency of the evidence to prove she was intoxicated at the time she drove the vehicle. The jury heard Ballew's testimony that when he first approached appellant inside the restaurant, she did not appear to be upset and she was not crying. Appellant smelled of an alcoholic beverage, had glassy eyes, could not understand his instructions, and she exhibited behavior consistent with intoxicated persons, i.e., mood swings, unable to carry on a conversation or understand instructions, and being argumentative. The jury also heard appellant's testimony that when Ballew first approached appellant, he was outside the restaurant. Appellant claimed she was emotionally distraught when Ballew was talking with her, and her eyes were glassy because she had been crying all evening. It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        Viewed under the proper standard, we conclude the evidence is factually sufficient to support the jury's verdict. See Laster, 275 S.W.3d at 518. We resolve appellant's sole issue against her.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          CHIEF JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090008F.U05