Delatorre, Pedro v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Memorandum Opinion filed June 19, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-01242-CR

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PEDRO DELATORRE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 878,781

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M E M O R A N D U M O P I N I O N

Appellant Pedro Delatorre challenges his conviction for felony driving while intoxicated ( DWI ). We affirm.

I. Factual and Procedural Background

Officer Jesus Aguirre saw appellant speeding and weaving in and out of traffic. After observing appellant s physical condition and his failure to successfully complete certain field sobriety tests, Officer Aguirre arrested appellant. Appellant refused to give a breath sample.

Appellant was charged by indictment with felony DWI based on two prior DWI convictions. The trial court denied appellant s motion stipulating to the two prior DWI convictions and seeking to prevent the jury from learning of the prior DWI convictions during the guilt/innocence phase. The jury convicted appellant and assessed punishment at twenty years confinement in the Institutional Division of the Texas Department of Criminal Justice.

II. Issues Presented

Appellant asserts three issues, alleging: (1) the trial court erred in allowing the jury to learn, during the guilt/innocence phase of trial, that appellant had two prior DWI convictions, in violation of appellant s federal constitutional right to a fair and impartial trial; (2) the evidence is legally insufficient to support his conviction; and (3) the evidence is factually insufficient to support his conviction.

III. Analysis and Discussion

A. Did the trial court err in allowing the jury to learn about appellant s two prior DWI convictions during the guilt/innocence phase?

In his first issue, appellant asserts that, because he stipulated to the two prior DWI convictions, the trial court erred by allowing, over his objection, the jury to hear about these convictions during the guilt/innocence phase of the trial. Both in the trial court and on appeal appellant relies on Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000). Appellant asserts that the logic of Tamez requires that the portion of the indictment alleging the prior DWI convictions not be read to the jury and that the jury should not learn about these convictions during the guilt/innocence phase. We disagree. The Tamez court held that the portion of the indictment alleging the two prior DWI convictions should be read to the jury, and thus, that the jury should learn about the two prior convictions. See id. at 202 03. We are bound by Tamez, and any change in this precedent must come from the Court of Criminal Appeals, not this court. Applying Tamez, the trial court correctly overruled appellant s objection that, because of his stipulation, the jury should not hear anything about his two prior DWI convictions.

On appeal, appellant also asserts that allowing the jury to hear about these prior convictions violated his right to a fair and impartial trial under the Sixth and Fourteenth Amendments to the United States Constitution. To preserve a complaint for appellate review, a party generally must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint. See Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886 87 (Tex. Crim. App. 2002). With few exceptions not applicable here, even constitutional complaints may be waived by the failure to raise a timely objection in the trial court. See Saldano, 70 S.W.3d at 886 89. Appellant has not cited, and we have not found, any place in the appellate record showing that appellant raised these constitutional objections in the trial court. Therefore, appellant has not preserved error. Even if appellant had preserved error, we still would hold that allowing the jury to learn of the prior DWI convictions does not violate appellant s federal constitutional right to a fair trial. Accordingly, we overrule appellant s first issue.

B. Is the evidence legally and factually sufficient to support appellant s conviction?

In his second and third issues, appellant asserts the evidence is legally and factually insufficient to support his conviction because there was insufficient evidence that appellant had lost the normal use of his mental or physical faculties due to intoxication at the time he was operating a motor vehicle.

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State s evidence or believe that appellant s evidence outweighs the State s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, is the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence without the prism of in the light most favorable to the prosecution and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000). This concept embraces both formulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if: (1) it is so weak as to be clearly wrong and manifestly unjust; or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. at 11. Under this second formulation, the court essentially compares the evidence which tends to prove the existence of a fact with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 648. Our evaluation should not intrude upon the fact finder s role as the sole judge of the weight and credibility given to any witness s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

At trial, Officer Aguirre testified that, on December 20, 2000, he observed appellant s truck traveling at a high speed in an area with a speed limit of 35 miles per hour. He saw appellant drive his truck behind another vehicle, hit his brakes, switch lanes, and then take off. He also observed appellant change lanes without signaling, and he saw appellant weaving in and out of his lane roughly three times. Officer Aguirre testified that appellant was traveling 50 miles per hour and described his driving as dangerous.

When Officer Aguirre conducted a traffic stop of appellant s vehicle, appellant jumped out of his truck and approached Officer Aguirre s patrol car. Officer Aguirre told appellant in English to stop and go back to his vehicle. When appellant did not appear to understand, Officer Aguirre made the demand in Spanish. Appellant appeared to understand but did not obey the officer s commands and instead stopped in front of the patrol car. Officer Aguirre then got out of his patrol car and asked for appellant s driver s license. Appellant replied that he did not have it with him and stated that his name was Pedro Perez. Appellant later gave his correct name, and the computer in Officer Aguirre s car indicated that appellant s driver s license was suspended.

During the traffic stop, occurring at about 7:13 p.m., Officer Aguirre noticed that appellant had bloodshot eyes, slurred speech, and that he used his truck to balance himself. Officer Aguirre smelled a strong odor of alcohol on appellant s person. Appellant was not able to successfully complete field sobriety tests Officer Aguirre administered. Appellant admitted to Officer Aguirre that he had consumed two drinks, one at 4:30 p.m. and the other at 6:30 p.m. In Officer Aguirre s opinion, appellant was intoxicated.

After appellant was taken to the police station, Officer Dodson attempted to obtain a breath sample, but appellant refused to give one. Officer Dodson videotaped appellant receiving warnings and taking field sobriety tests. The videotape was admitted in evidence and played for the jury. Officer Dodson testified that he smelled alcohol on appellant s breath and observed appellant s bloodshot eyes. He noticed that appellant had to balance himself against the wall during one of the sobriety tests and that appellant appeared to be emotional and to be experiencing mood swings. In Officer Dodson s opinion, appellant was intoxicated.

Laticia Delatorre, appellant s sister, testified that she observed appellant for about five minutes at 7:00 p.m. on the evening of the alleged offense. She testified that she did not see him drinking and that he appeared sober to her. Guadalupe Solache, appellant s brother-in-law, also testified that he saw appellant that evening and that he did not appear intoxicated.

Both police officers testified that appellant appeared to be intoxicated, and identified the specific observations that led them to that conclusion. See Henderson v. State, 29 S.W.3d 616, 622 (Tex. App. Houston [1st Dist.] 2002, pet. ref d) ( The testimony of a police officer that an individual is intoxicated is probative evidence of intoxication. ). Both officers observed that appellant had bloodshot eyes and difficulty maintaining balance. Appellant admitted to Officer Aguirre that he had consumed two drinks of alcohol within a few hours of the traffic stop, which Officer Aguirre initiated based on appellant s erratic and dangerous driving. Further, the jury may consider appellant s refusal to give a breath sample as evidence of his guilt. See Finley v. State, 809 SW.2d 909, 913 (Tex. App. Houston [14th Dist.] 1991, pet. ref d).

Although two of appellant s family members gave conclusory testimony that appellant did not appear to be intoxicated, the credibility of their testimony was for the jury to determine. See Cain, 958 S.W.2d at 407. Viewing the evidence under the familiar standards of review stated above, we conclude that the record contains strong circumstantial evidence that appellant was guilty of the DWI offense and that the evidence is legally and factually sufficient to support appellant s conviction. Accordingly, we overrule appellant s second and third issues.

Having overruled all of appellant s issues, we affirm the trial court s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 19, 2003.

Panel consists of Justices Yates, Anderson, and Frost. (Anderson, J. concurs in result only.)

Do Not Publish Tex. R. App. P. 47.2(b).