Uzo E. Awa v. The State of Texas Appeal from County Criminal Court No. 4 of Dallas County (memorandum opinion)

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Affirmed and Opinion Filed June 14, 2018 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00075-CR UZO E. AWA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court No. 4 Dallas County, Texas Trial Court Cause No. MB-1434546-E MEMORANDUM OPINION Before Justices Bridges, Myers, and Schenck Opinion by Justice Bridges Uzo E. Awa appeals her driving while intoxicated conviction. A jury convicted appellant, and the trial court assessed punishment at ninety days’ confinement and a $100 fine. The trial court suspended appellant’s sentence and placed her on twelve months’ community supervision. In a single issue, appellant argues the evidence is insufficient to support her conviction. We affirm the trial court’s judgment. The evidence at trial showed that, at approximately 9:00 p.m. on June 21, 2014, Irving police lieutenant Thomas Hover observed a tan Ford Explorer driving without its lights on even though it was dark at the time. The Explorer was in the center lane of three lanes and was “drifting from side to side.” Hover believed what he was observing “could be a possible intoxicated person,” so he turned on his in-car camera. Hover continued to follow the Explorer, which continued to drift from side to side, and called another officer, Travis Huckaby, to assist him. The Explorer changed lanes without signaling and continued to “drift from side to side within the lane.” After Hover had followed the Explorer for “two miles, a mile and a half,” the driver of the Explorer turned on the lights. Hover waited for Huckaby to get closer before turning on his lights and stopping the Explorer. Instead of stopping on the “nice big shoulder on the right-hand side,” the Explorer pulled over to the left-hand side of the street. With Huckaby “right behind” him, Hover approached the Explorer and immediately detected the odor of burnt marijuana coming from the vehicle. Hover turned the traffic stop over to Huckaby, who talked with appellant, the driver of the Explorer, while Hover checked appellant for warrants. Huckaby also smelled a “strong” odor of burnt marijuana coming from the Explorer and appellant. Huckaby asked appellant if she had been smoking marijuana, but appellant denied it “multiple times.” Nevertheless, Huckaby could smell marijuana “emitting from [appellant’s] breath,” and he searched the Explorer. Huckaby found a baggie containing several “blunts,” which were “rolled up cigar [leaves] with marijuana inside.” Another baggie contained “multiple blunts that had already been smoked.” Huckaby found another baggie that “had a blunt that was already smoked” and a cigar that was “the exact same kind of cigar that everything was rolled with.” Huckaby administered field sobriety tests to appellant, including the Horizontal Gaze Nystagmus (HGN), walk and turn, and one-leg stand. Appellant exhibited no clues on the HGN, but Huckaby testified marijuana does not “cause the HGN response.” Huckaby also administered the lack of convergence test, which tests whether tetrahydrocannabinol (THC), the main ingredient in marijuana, has rendered the eyes unable to “focus in on an object in front of them close.” Appellant’s eyes were not able to “converge to the middle.” Finally, Huckaby administered the Romberg test, which tests an individual’s perception of time and distance and which includes an assessment of “different indicators of what THC can do to the system . . . circular sways, any kind –2– of sway, body tremors, [and] eyelid tremors.” At the conclusion of his testing, Huckaby formed the opinion that appellant “had lost her mental and physical faculties to operate a motor vehicle safely,” and he placed appellant under arrest. Hover transported appellant to the hospital. Appellant refused to give a sample of her breath and blood, so Huckaby obtained a search warrant for a sample of her blood. Steven Stierman, a toxicology chemist, testified he supervised the testing of appellant’s blood sample, which showed 8.7 nanograms of THC per milliliter of blood. Heidi Christensen, also a toxicology chemist, testified that studies indicate “impairment can begin as low as 2 to 5 nanograms per mil of THC.” Christensen testified appellant’s test result was “on the higher end of what we typically receive for driving cases in our laboratory,” and Christensen would expect appellant’s THC concentration to “have been higher at the time of driving. The jury convicted appellant of driving while intoxicated, and this appeal followed. In a sole issue, appellant argues the evidence is insufficient to support her conviction. Specifically, appellant argues the evidence established, at most, some unspecified level of impairment but did not establish intoxication. We review a challenge to the sufficiency of the evidence on a criminal offense for which the State has the burden of proof under the single sufficiency standard set forth in Jackson v. Virginia, 443 U.S 307 (1979). Acosta v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014). Under this standard, the relevant question is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011). This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. When analyzing legal sufficiency, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the –3– verdict. Id. When the record supports conflicting inferences, we presume that the factfinder resolved conflicts in favor of the verdict and defer to that determination. Id. Direct and circumstantial evidence are treated equally: circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Id. A person commits the offense of driving while intoxicated if the person operates a motor vehicle in a public place while intoxicated. TEX. PENAL CODE § 49.04(a). “Intoxicated” means, among other things, not having the normal use of mental or physical faculties by reason of the introduction of alcohol or any other substance into the body. Id. § 49.01(2)(A). Here, the evidence showed appellant was driving after dark with her lights off for one and a half to two miles. Appellant was drifting from side to side and changing lanes without signaling. When Hover pulled her over, appellant crossed over to stop on the left-hand side of the street rather than the right-hand side. Upon encountering appellant, both Hover and Huckaby immediately detected the strong odor of burnt marijuana. Although appellant denied smoking marijuana, Huckaby found multiple smoked blunts in appellant’s Explorer. Appellant’s eyes were not able to converge in the convergence test. A subsequent blood test showed appellant’s blood had 8.7 nanograms of THC per milliliter of blood. Christensen testified that studies indicate “impairment can begin as low as 2 to 5 nanograms per mil of THC.” Critically, Huckaby testified he formed the opinion, based on his observations of appellant and appellant’s performance on field sobriety tests, that appellant “had lost her mental and physical faculties to operate a motor vehicle safely.” “[T]he uncorroborated testimony of an arresting officer is sufficient to prove the element of intoxication.” Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.—Dallas 1991, pet. ref’d). Under these circumstances, we conclude the evidence was sufficient to support appellant’s driving while –4– intoxicated conviction. See Clayton, 235 S.W.3d at 778; Dumas, 812 S.W.2d at 615. We overrule appellant’s sole issue. We affirm the trial court’s judgment. /David L. Bridges/ DAVID L. BRIDGES JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 170075F.U05 –5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT UZO E. AWA, Appellant No. 05-17-00075-CR On Appeal from the County Criminal Court No. 4, Dallas County, Texas Trial Court Cause No. MB-1434546-E. Opinion delivered by Justice Bridges. Justices Myers and Schenck participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered June 14, 2018. –6–

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